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Toxic Tort Insurance Defense: The Science, or Lack thereof Toxic Mold

Personal injury claims resulting from mold infestation  brought by homeowners, contractors, employees, landlords, tenants and governments continue to rise.

There are several chemical substances that are commonly associated with toxic tort and environmental liability, but none have gathered as much nationwide attention as the ubiquitous and innocuous “mold”, particularly in New York and Maryland.

Despite all the multimillion dollar toxic mold lawsuits, the science to back up any potential health hazards remains unclear. Experts from Johns Hopkins have provided testimony which states that a person can not sustain injury from mold exposure unless there is a pre-existing mold sensitivity already documented. In addition, their testimony will concur that the type of mold found must match the particular type of medical sensitivity.

Due to this lack of scientific data, the Environmental Protection Agency (EPA) has yet to establish regulations or standards for airborne mold contaminants that would determine what levels of indoor airborne fungi are acceptable, and what levels are dangerous.

Insurance companies have been hit hard by toxic mold litigation and mold-related insurance claims.  As a result many homeowners’ policies exclude coverage for mold and mold related damages.  Residential real estate companies now recommend to their agents and clients that they obtain a mold inspection, along with the customary general home inspection, before purchasing a home.

In fact, the term “toxic mold” is inaccurate. Scientists have identified over 5,000 species of mold.  While certain molds are toxigenic, meaning they can produce mycotoxins, the molds themselves are not toxic.  Only 3% of mold species cause allergies in humans and only 1% can create mycotoxins and as stated above unless a person has a pre-existing mold sensitivity that marches the type of mold there is no viable claim.

A small percentage  of the population is allergic to one or more types of mold.   Those who are allergic may experience reactions similar to fever including; coughing, sneezing, difficulty breathing, fatigue, and headaches if the spores are airborne and circulating through the ventilation system.

Several airborne allergens such as dust, pollen, dander, or smoke can cause similar symptoms.  And like these airborne allergens, the threshold at which an individual experiences a reaction to airborne mold spores varies from person depending on the length of exposure and the limitations described above.

Although taking a Claritin may very well abate many of these symptoms, plaintiffs in mold litigation cases often allege that these adverse health effects are the result of more exotic disorders; such as sick building syndrome, fibromyalgia, chronic fatigue syndrome, reactive airway dysfunction syndrome, toxic encephalopathy, or multiple chemical sensitivity.

Even the toxicity of the infamous Stachybotrys Chartarum, which allegedly caused fatal pulmonary hemorrhage in several exposed infants, has been criticized by the Centers for Disease Control due to unscientific sampling and questionable methodology used during the investigation into the infants’ deaths.

Toxic tort mold litigation usually comes down to a battle of the experts.

Plaintiffs must prove that a species of mold is both causing them the alleged injury, and that the exposure was sufficient to cause the alleged injury and the plaintiff is predisposed for a reaction.  The issues of causation and proof are complex in toxic mold litigation given the array of other health factors that come into play.

Usually an environmental testing firm or laboratory takes a mold sampling in the contaminated building.

Plaintiffs will call experts in the fields of mycology, microbiology, allergy and immunology, industrial hygiene to give their opinion. Toxic tort defense is usually boils down to convincing the court that the expert testimony is unreliable, which is a real possibility with the questionable methodology utilized by many sampling firms.

Often in mold litigation the defense attorney will challenge the plaintiff expert’s right to testify with a Daubert / Frye-Reed challenge.

For more information regarding toxic tort and insurance defense, please contact Art Caltrider at acaltrider@bodie-law.com or 443-904-7575.

 

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