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Mold: An Old Problem Presenting New Challenges

Thursday, February, 21, 2013

By Special Guest Columnist Andrew Turk, Esq.  

During the last few years, personal injury and construction defect claims involving mold have been among the fastest growing areas of civil litigation.  Stories of mold-contaminated homes, schools and courthouses have been covered on national television and chronicled in The New York Times Magazine and People.  Often sensationalized stories tell of people becoming ill, fleeing their homes and destroying their possessions.  Despite the national attention it has received, mold, its health affects, and prevention remain poorly understood. 

Many experts believe the energy crisis of the 1970’s and the resulting trend of building “air-tight” energy efficient buildings led to the creation of conditions ideal for mold growth.  Increased use of drywall has increased availability of food for opportunistic molds.  Shoddy construction fueled by the building booms of the 1990s and poor maintenance practices, have also contributed to increased mold growth in commercial and residential buildings.  These factors, coupled with media sensationalism and the general litigiousness of American society have resulted, at least in part, in an increase in mold litigation. 

The types of claims being made have proliferated almost as quickly as mold is purported to.  Claims for negligence, negligent and intentional misrepresentation, fraud and punitive damages have all become common place.  Claims for breach of contract, breach of express and implied warranties and constructive eviction have been asserted against contractors, developers, landlords and others.  Not surprisingly, the list of potential defendants in mold lawsuits is large and continues to grow, including architects, realtors, home inspectors, and insurance companies.

Mold presents unique challenges precisely because it is virtually impossible to avoid.  Mold, in some form and amount, is present in virtually every environment.  Yet, despite the prevalence of mold in the environment surprisingly little is known for certain regarding its impact on human health. 

Most experts agree that exposure to high levels of mold can trigger allergic reactions or provoke asthma attacks in an asthmatic person.  However, there is wide disagreement amongst medical and environmental experts regarding other claimed health affects of mold.  Most of the claims center around the poisons or mycotoxins that some molds are capable of producing.  Complaints of health problems linked to mold by plaintiffs have ranged from the relatively benign to the catastrophic. Notably, however, most of the symptoms allegedly linked to mold exposure have numerous possible causes.  

Despite the large number of personal injury claims being made, there is little or no scientific evidence to support a causal link between exposure to mycotoxins and disease causation.  There are currently no reliable tests for determining whether an individual has been exposed to mold or mold mycotoxins.  Due to the lack of agreement in the scientific community and the highly individual nature of responses noted above, no federal statutes or regulations regarding mold exposure in the workplace, or elsewhere, have been developed. 

The increased attention afforded mold is largely the result of lawsuits.  Many mold-related lawsuits arise from a failure to take reasonable precautions against mold growth. Still more lawsuits are the result of an improper or untimely response to initial complaints of mold contamination.  Institution of a simple mold prevention and response plan can prevent, or at least minimize, complaints and lawsuits. 

The United States Environmental Protection Agency has issued guidelines for the remediation of mold in schools and commercial buildings.  Those guidelines, and others like them, embody the common sense measures that can and should be taken to drastically reduce the likelihood of mold contamination in virtually any building.  Moisture is the key ingredient for mold growth.  Thus, the key to any mold prevention program is controlling moisture within the building envelope.

The majority of mold problems arise from readily identifiable sources.  Building owners, landlords and builders can implement cost-effective plans for reviewing areas and systems prone to mold problems in order to reduce remediation costs and possible lawsuits.  A regular and systematic inspection of condensation lines, drip pans, vents and HVAC systems can aid in the early identification of potential mold problems. 

Opportunities for moisture and mold growth can also be minimized at the design stage.  For example, ensuring adequate ventilation can prevent or inhibit mold growth.  Carpet, a common area of mold growth, can be eliminated in areas likely to become wet on a regular basis, such as bathrooms, kitchens and areas around drinking fountains. 

In the event prevention strategies fail, the importance of a prompt and adequate response upon notice of a “mold problem” cannot be over estimated.  The single most important thing to remember is not to focus solely on clean up of the mold.  In responding to a claim of water damage or mold, the source of moisture must be identified and repaired before any remediation takes place.  Failure to address a mold problem at its source virtually guarantees the problem will eventually return.

It is also important to have some plan for handling mold in place before it is needed.  A determination should be made, in advance as to which guidelines or protocols will be used if a water damage or mold problem arises.  On site employees should be informed of the response plan and have a written copy readily available for reference and review.  Although training in mold inspection and response is available  from many sources, professionals should be consulted any time there is doubt as to the nature and extent of the problem.  Mold is a significant, but by no means insurmountable, problem for many industries.  However, in many cases, implementation of a simple, and in most cases inexpensive, plan for the prevention of and response to mold can eliminate potential lawsuits.  In the event a lawsuit is filed, a well-established and implemented prevention and response plan can significantly decrease a claimant’s chances of success. 

This article is intended for general information purposes only.  You are urged to consult your attorney concerning your specific situation and any legal questions you may have.