Maryland Federal Judge Remands Mold Exposure Suit

BALTIMORE — A Maryland federal judge on Jan. 24 held that her court does not have subject matter jurisdiction over a mold exposure suit after finding that a management company employee was not fraudulently joined (Marina Eddy, et al. v. C.B. Richard Ellis Inc., No. CCB 00-3426, D. Md.; See January 2000, Page 22). (Memorandum in Section B. Document #42-010205-102. Reply on remand issue available. Document #42-010205-003.)

Marina Eddy and other employees sued CB Richard Ellis Inc., Henry Knott, AMG Realty Partners LP, Kronos Property Holdings N.V. and Maritime Reality Corp., asserting claims for negligence, misrepresentation and loss of consortium and maintaining that they were exposed to toxic mold. The complaint was filed in the Baltimore County Circuit Court.

C.B. Richard removed the action to the U.S. District Court for the District of Maryland, alleging that there is diversity of citizenship. However, Eddy countered in a remand motion that because Knott is a resident of Maryland, there is not complete diversity.

Case Remanded

U.S. District Judge Catherine C. Blake said in a memorandum that "it is important to note that the defendants do not allege that Mr. Knott was fraudulently joined. If they had, the court could have disregarded Mr. Knott’s citizenship if the companies could have shown ‘either outright fraud in the plaintiff’s pleadings or jurisdictional facts’ or that ‘there is no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in state court.’"

The judge said that because it is alleged that Knott was an employee of the management companies, he could be held jointly and severally liable for any damages award.

"Because Mr. Knott’s citizenship cannot be disregarded, there is not complete diversity in this case. The court, therefore, lacks subject matter jurisdiction. For that reason, it will grant the plaintiffs’ motion to remand," the judge ruled.

 

Personal Property Claims Settled In Calif. Mold Case

SACRAMENTO, Calif. — A California apartment complex is unfit for human occupation and contains toxic mold, according to a December amended complaint (David Adair, et al. v. Argenta PM LLC, et al., No 00AS00994, Calif. Super., Sacramento Co.).

Sources told Mealey Publications that three of more than 30 defendants have settled the majority of the personal property claims asserted by tenants of 85 different units, with payments ranging from $7,000 to $15,000. (Amended Complaint in Section H. Document #42-010205-109.)

David Adair and more than 80 others lived in the Pavilions at Sunrise Apartment Complex. In a Dec. 29 amended complaint, Adair alleges that the apartment complex was unfit for human occupation because it failed to comply with the California Civil Code, California Health & Safety Code, Uniform Housing Code, Uniform Building Code, Uniform Plumbing Code and Uniform Mechanical Code.

Apartment Conditions

Specifically, Adair alleges that the apartment building had inadequate plumbing and gas lines; permitted water intrusion into the apartments; had deteriorating and rotting walls, ceilings, roofs, floors, and other building structures; was infested with insects and vermin; and contained toxic molds. Adair maintains that none of these conditions were known before moving in.

Claims asserted include negligence, breach of contract, breach of implied warranty of habitability, nuisance, retaliatory, wrongful eviction, intentional infliction of emotional distress, negligent infliction of emotional distress, fraudulent concealment, intentional misrepresentation, negligent misrepresentation, statutory violations, and strict product liability. The complaint was filed in the Sacramento County Superior Court.

Personal Property

Sources told Mealey Publications that FCS/Pavilions, FSC Realty and Brentwood-Lexford have settled the majority of the personal property claims filed on behalf of tenants in 85 separate units. Those settlement payments range from $7,500 for one bedroom, $9,000 for two bedrooms, and $15,000 for three bedrooms, according to sources. Sources added that part of the settlement includes a provision that the tenants do not have to pay back rent that has been unpaid since June 1999. The sources added that mediation in this case began in August and the most recent settlement was entered into late in January.

Pavilions complex has 300 units and has been completely vacated and is in the process of mold remediation, sources said.

 

California Federal Judge

Awards $60,000 In Attorney, Expert Fees

SACRAMENTO, Calif. — In a case where a homeowner recovered $3 million for mold damage and bad faith claims from its carrier, a California federal judge on Jan. 26 awarded him nearly $60,000 in expert and attorney fees (Thomas Anderson v. Allstate Insurance Co., No. CIV-00-907, E.D. Calif.; See January 2000, Page 4). (Orders in Section F. Document #42-010205-105.)

In August 1996, Allstate reissued Thomas Anderson a deluxe homeowners policy that covered the dwelling, personal property and additional living expenses caused by sudden and accidental discharge of water from a plumbing device.

Pipes Burst

In January 1997, several pipes burst in Anderson’s home. Due to home remodeling efforts, the interior of the home was empty and Anderson was not staying in it at the time. A month later, an insurance inspector noted in a report that the pipe ruptured in the attic for several days, resulting in mold and mildew in all rooms. In November 1997, the water supply to the house was shut off.

Anderson sued Allstate in the U.S. District Court for the Eastern District of California and the case was tried before District Judge Lawrence K. Karlton. The federal jury on Oct. 3 awarded the policyholder nearly $500,000 in damages and $18 million in punitive damages.

However, in a Dec. 13 minute order, Judge Karlton denied Allstate’s new trial motion and gave the plaintiffs 10 days to respond to the remittitur of verdict to $2.5 million in punitive damages. The judge also denied Allstate’s motion to stay execution of judgment without bond and ordered the carrier to post a $3.8 million bond for appeal.

Fees Awarded

In a Jan. 16 order, the judge further awarded Anderson $23,864 in expert fees and $36,364 in attorney’s fees as contract damage from Allstate.

"Plaintiff’s total punitive damage award is $2,725,411.80. In addition, as the prevailing party plaintiff may recover $23,887.88 in litigation costs for a total judgment in the amount of $3,294,381.80," the court ruled.

Counsel for Allstate includes Dennis G. Seley and Claudia J. Robinson of Lewis, D’Amato, Brisbois and Bisgaard in Sacramento, Calif. Anderson is represented by Stanley R. Parrish and Ronald Haven of Shepard and Haven in Sacramento.

 

Pa. Federal Judge Rules

Moldy Books Should Be Preserved As Evidence

PHILADELPHIA — A Pennsylvania federal court on Jan. 17 ordered that moldy books found in an elementary school should be preserved for evidence in a whistle-blower case (Susan Burke v. Board of Directors of the Pottsgrove School District, et al., No. 00-CV-6061, E.D. Pa.). (Complaint, Emergency Motion and Orders in Section C. Document #42-010205-104.)

The complaint was filed in the U.S. District Court for the Eastern District of Pennsylvania. Named defendants include the board of directors of the Pottsgrove School District and Superintendent Sharon N. Richardson.

Susan Burke is a school nurse for Pottsgrove School District at the Lower Pottsgrove Elementary School. Burke maintains that she became aware and notified her superiors of unusually high number of illnesses of occupants in the elementary school building, including respiratory ailments. Environmental tests found mold in the building.

Health At Risk

Last summer, a physician determined that Burke is allergic to mold and informed her that her health was at risk by returning to work in the elementary building.

"In light of her physicians statement, and the continued presence of detectable molds within the school, Plaintiff sought a transfer of her duties from Lower Pottsgrove Elementary School to another school within the District. Plaintiff’s request was refused," the complaint alleges. "In refusing her transfer, the Plaintiff has suffered pecuniary losses by exhausting her sick leave, personal leave, and emergency leave, taking unpaid days, and further being denied the opportunity to work and serve the children of the District, because of her inability medically, to take the risk of returning."

Claims asserted include violations of the Americans with Disability Act, Burke’s Constitutional Rights and the Whistleblower Law.

"Plaintiff made a good faith report to her superiors of conditions in her place of employment that constituted waste and wrongdoing in that Pottsgrove School District failed to provide a reasonably safe environment for students and staff at Lower Pottsgrove Elementary School in failing to timely remedy structural flaws leading to microbial contamination of the interior elements of the school. In being denied a transfer, and effectively being denied the opportunity to work, Plaintiff was discriminated against because of her status as a ‘whistleblower,’" the complaint alleges.

Emergency Motion

Subsequently, Burke filed a Jan. 10 emergency motion, noting that more than 1,500 mold-contaminated books from the elementary school and additional books from individual classroom libraries were identified and then boxed by the defendants. Burke sought the court to direct the defendants to box, seal and preserve the contaminated books.

"The existence of these mold contaminated books at Lower Pottsgrove Elementary School, following the alleged remediation efforts by the School District, is directly relevant evidence of the continued presence of significant amounts of mold in Lower Pottsgrove Elementary School and the lack of justification of the Defendants in using the ‘remediation’ as a basis for the District’s refusal to grant the Plaintiffs’ transfer," Burke argued.

Following an agreement of counsel, the court in a Jan. 17 order ruled that the school district will not dispose of any of the mold-contaminated books.

 

Calif. County: No Notice Given Of Moldy Courthouse

VISALIA, Calif. — A California county maintains it did not have notice of an allegedly moldy courthouse, according to a Dec. 19 answer to a complaint (Elisabeth B. Krant v. County of Tulare, et al., No. 00-0190367, Calif. Super., Tulare Co.; See November preview issue, Page 14). (Answer to Complaint in Section G. Document #42-010205-107.)

Tulare County Superior Court Judge Elisabeth Krant sued Tulare County and Kathleen Bales-Lange alleging she was exposed to mold, asserting claims for dangerous condition of public property against public employee, fraudulent concealment, battery, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence by construction defendants and continuing nuisance.

While the original complaint named only Tulare County and Bales-Lange, the second amended complaint adds Kitchell Capital Construction Management, J.I. Garcia Construction Inc., Bakersfield Glass Co., Superior Academy Granite Co., Fresno Marble and Tile, San Francisco Lathing Co., J.E. Hevener, Pacific Electrical & Mechanical Co., Brott Mechanical, E.H. Moore & Sons, Kitchell CEM, Beaver Construction, Forcum/Mackey Construction Inc., San Joaquin Steel Construction Inc. and Turrupseed Electric Service Inc.

Claims Disputed

In a Dec. 19 answer to the amended complaint, the County of Tulare denied that Krant was injured by the alleged condition of the courthouse.

"Plaintiff, by the exercise of reasonable effort and/or care, could have mitigated the damages alleged to have been suffered, but plaintiff has failed, neglected and refused and continues to fail and refuse, the exercise of reasonable effort to mitigate the damage," the county says.

The county further argues that the exclusive remedy for the damages allegedly suffered by Krant is under the workers’ compensation laws of the State of California. Additionally, the county argues that the complaint is barred by the statute of limitations.

"These answering defendants allege that plaintiff has failed to state facts material to the existence of statutory liability as contemplated by the California Government Code," the county maintains.

The county further maintains that if, for the sake of argument, the property was in a dangerous condition, it did not create or have actual notice of the condition.

The county is represented by Michael G. Woods and Christopher Lozano of McCormick, Barstow, Sheppard, Wayte & Carruth in Fresno, Calif. Plaintiffs counsel include Alexander Robertson 4th and Jonathan S. Vick of Knopfler & Robertson in Woodland Hills, Calif., and Steven R. Williams of Williams, Jordan & Brodersen in Visalia, Calif.

 

Wash. Resident: Floods From Structurally Unsound Storm

Water Facility Caused Mold

VANCOUVER, Wash. — A Washington State resident alleges in a Jan. 3 complaint that a structurally unsound storm water detention facility flooded her home and caused mold growth (Molly K. Atwood, et al. v. City of Vancouver, Wash., No. 012000253, Wash. Super., Clark Co.). (Complaint in Section A. Document #42-010205-101.)

Molly Atwood claims that her home was flooded with water as a result of the structural failure of a storm water detention facility that was negligently constructed and maintained by the City of Vancouver, Wash. Atwood further claims that following the flooding incidents, the city failed to properly clean and remediate her property, which caused mold growth, structural damage to the property’s foundation, and damage to personal property.

Effect On Family

Atwood alleges that as a result of the stress of the flooding incidents and the mold growth in the home resulting from flooding, her family has suffered from headaches, fatigue, memory loss, chronic bronchitis, neurological tremors, asthma, kidney lesions, developmental learning problems, allergies, sinus infections, heart problems, mental and emotional distress, and interference with the enjoyment of her home.

"In the Summer of 2000, Plaintiffs discovered that in addition to other types of mold, their home was contaminated with a toxic form of mold called Stachybotrys chartarum. At this time, reasonably believing their home was unsafe to live in, Plaintiffs immediately abandoned the home and its contents and have since lived in homeless shelters and in the homes of family members," the complaint alleges.

Claims asserted include negligence, nuisance, trespass, strict liability and inverse condemnation. The complaint was filed in the Clark County Superior Court.

Plaintiffs counsel include John S. Karpinski of the Law Offices of John S. Karpinski in Vancouver, Wash.

 

New York Family Seeks More Than

$180 Million For Mold Exposure

NEW YORK — A family living in a New York apartment seeks approximately $180 million for injuries and damages allegedly caused by mold, according to a complaint (Dean H.M. Chenensky, et al. v. Glenwood Management Corp., et al., No. 120461/00, N.Y. Sup., N.Y. Co.). (Complaint in Section D. Document #42-010205-108.)

Brian Chenensky and his family allege that they were exposed to dangerous mold and fungus while living in an apartment unit owned by Glenwood Management Corp. and operated by East 77th Realty LLC. The complaint was filed in the New York County Supreme Court.

Chenensky alleges in a November complaint that water leakage and mold have caused personal property damage and structural damage to the interior of the apartment. He alleges that the defendants have known for several years that toxic mold has existed in the apartment building, but failed to take any steps to remedy the situation, did not notify him of the condition, and failed to remediate the mold.

Sources told Mealey Publications that there are approximately 17 separate mold exposure actions pending against Glenwood.

 

New York Employee Seeks $65 Million For Mold Exposure At Work

JAMAICA, N.Y. — A New York employee seeks $65 million for injuries and damages allegedly caused by mold exposure (Robert E. Coiro, et al. v. Dormitory Authority of the State of New York, No. Not Yet Assigned, N.Y. Sup., Queens Co.). (Complaint in Section E. Document #42-010205-106.)

Robert Coiro worked for LaGuardia Community College at the premises owned by defendant Dormitory Authority of the State of New York. In a complaint filed in the Queens County Supreme Court, Robert and Myrna Coiro allege that the building has toxic mold and fungus, water leaks, unsafe and unsanitary conditions, improper ventilation and other dangerous conditions.

Coiro alleges that as a result of the building’s conditions, he has suffered from personal injuries as well as pain and suffering in an amount not expected to exceed $10 million.

Failed To Act

"Defendants failed and refused to take any steps to remedy the situation, did not notify the plaintiff of the danger that the conditions posed, and further knowing the existence of these conditions and defendants’ failure to remediate same, place plaintiff in an unsafe, contaminated and dangerous environment, all to the plaintiff’s detriment and loss," the complaint alleges. "Plaintiff requests that the Court award punitive and exemplary damages in the sum of fifty million dollars."

Coiro’s wife seeks $5 million for services lost.

Sources told Mealey Publications that there are approximately 30 mold exposure suits pending against the Dormitory Authority.

 

Delaware High Court Hears Arguments On $1 Million

Award In Mold Exposure Case

NEW CASTLE, Del. — The Delaware Supreme Court on Jan. 30 heard oral arguments on whether or not a trial court properly upheld a $1 million award to apartment residents who claim they were injured by mold (New Haverford Partnership, et al. v. Elizabeth Stroot, et al., No. 95C-05-074-HLA, Del. Sup.; See November 2000 preview issue, Page 6).

Elizabeth Stroot and Joletta Watson claim that they were exposed to various mycotoxins, bacteria, fungi and other toxins while living in an apartment complex owned by New Haverford Partnership. The residents assert that the toxic exposure caused them to seek medical care and hospitalization, will require future medical care, incapacitated them from their regular duties and caused economic losses. Stroot further alleges that she suffered severe asthma, permanent cognitive defects, osteopenia and an increased risk of tuberculosis. Suit was filed in the New Castle County Superior Court.

Award Issued

In May 1999, a jury awarded $1 million in damages to Stroot and $40,000 to Watson for medical expenses, permanent impairment and pain and suffering. The decision was upheld in post-trial motions, and New Haverford appealed to the state Supreme Court.

New Haverford argued in its June 30 opening brief that Stroot’s medical experts did not establish a proper baseline for her pre-existing condition and take into account other possible causes for her injuries. It also argued that records of Stroot’s prior psychological treatment should have been entered into testimony.

Stroot countered in a Sept. 18 answering brief that the methodology of her medical experts, Drs. Wayne Gordon and Cecile S. Rose, was in accordance with generally accepted standards and was therefore reliable. She argued that since New Haverford’s medical expert, Dr. Gerald Cooke, did not find that she suffered a cognitive defect, the request for psychological records is moot.

 

A Mold Case Study: Tarp v. E&W Associates III, et al.

By Gordon M. Park and Christopher Lozano

Introduction

In November and December of 1999, the authors took to trial the case of Tarp v. E&W Associates, et al. (Fresno County Superior Court Case No. 5965603), a case in which the plaintiffs alleged the growth of toxigenic molds (principally Stachybotrys Chartarum) caused a loss of business and bodily injury. The course of that case, both in terms of factual investigation as well as legal rulings and ultimate outcome, is instructive to practitioners facing cases involving allegations of injury due to exposure to toxic molds. This article is designed to cover the pertinent aspects of the case, for the benefit of such practitioners.

The Facts Of The Case

By way of background, the plaintiffs were a husband and wife, of whom the wife leased a rental space from the defendants, a partnership devoted to real estate investment, development and management. The husband assisted the wife in constructing various tenant improvements to what was formerly a storefront church which was converted into the new location for the wife’s interior design studio which also served to display tiles, carpeting and wall coverings and sample room decor. Within a few months of the wife beginning her tenancy, the leasehold experienced a series of water flooding events, some of which were related to rain intrusion, and at least one of which the origins were still in dispute at the conclusion of the trial. As a consequence of these flooding events, the building did experience the growth of some Stachybotrys Chartarum mold (as well as detectible levels of some other molds), a potentially toxigenic mold whose health effects on humans has of late become the subject of much national interest, debate and litigation. The plaintiffs contended that the defendants had been negligent in their maintenance of the building, and its roof, and had failed to warn the plaintiffs of historical roof and ground level water leaks at the subject property. The plaintiffs contended further that as a consequence of the mold growth, the interior of the leasehold (and all of its contents, which constituted the tools of the wife’s trade) had been irrevocably contaminated with mycotoxins. Additionally, the plaintiffs each claimed to have suffered bodily injury from the alleged mycotoxins, which injuries ranged from neurological damage to candidiasis. The wife eventually abandoned most of her personal property at the subject property, and ceased to work. The husband (who was employed elsewhere) claimed that he suffered lingering physical and emotional damage as a result of being exposed to the mycotoxins himself (principally during the tenant improvements and in attempting to remediate the water events experienced by his wife’s business). They claimed economic damages in excess of $1.8 million, and general non-economic damages of another $3 million.

Eventually the parties retained experts in a variety of fields, the variety of which are illuminating, insofar as it highlights the multiplicity of factors and issues which must be considered when dealing with such a case. Both sides retained structural engineering experts, to analyze and testify regarding the construction and maintenance of the building itself, including the surrounding parking lot and the tenant improvements. The plaintiffs retained a geotechnical engineer to discuss the potential role the soil underlying the building and parking lot may have played in the water events and subsequent mold growth. (While the defendants did not specifically retain such an expert, their retained engineer was able to qualify as an expert in the geotechnical field, and did testify effectively in this regard at trial.) Both sides retained roofing experts specifically (in addition to structural engineers, though of course there was some overlap). Both sides retained physicians, though plaintiff retained an occupational health specialist, and the defense retained a neurologist. The defense retained a neuropsychologist whose specialty is rehabilitative work, which the plaintiff did not. The implications of associating such an expert on a case, whether from the defense or plaintiff perspective, will also be discussed in greater depth below. Both sides retained Certified Industrial Hygienists ("CIHs"), who in many respects formed the core of each side’s respective expert presentation, as will be explained. The plaintiff retained an economist, while the defense retained a forensic economist (to address the economic damages alleged).

Factually, the plaintiffs (and in particular the wife) engaged in behavior that not only undermined their legal case, but also exacerbated and even caused the damage which they complained of. For example, part of the tenant improvements they made to the leasehold included adding skylights to the roof through the ceiling and creating below-grade planter boxes in the soil beneath windows they made by cutting out the bricks of a bearing wall. As was revealed during discovery, the individual who installed the new windows and skylights was not a licensed contractor (but was a friend of the plaintiffs). It was later determined by removal and examination of the windows that due to improper plastering and installation, extensive water had leaked in and around the window frame along the wall which was the focus of plaintiff’s claimed roof leakage allowing water to penetrate the structure. Moreover, the installation of the planter boxes (which was accomplished by cutting out portions of the parking lot which abutted the building created a moisture sink for all the water (rain, irrigation, etc.) that would normally not penetrate the ground. Furthermore, it was discovered via the work of the engineer retained by the defense that the soil in the planters was initially porous, but at a depth of about a foot became much less so (resulting in moisture being trapped there). Lastly, the placement of the planter boxes immediately adjacent to the cripple walls below the windows added by the plaintiffs resulted in the moisture from the boxes wicking through the walls, and into the interior of the space. Additional work by the defendants’ engineer regarding the topography of the floor in the leasehold revealed that there was a significant slope toward the very corner which the plaintiffs claimed was the genesis of the molds.

In addition, when the water events occurred, the plaintiff compounded her problems by utilizing the same towels repeatedly to soak up the waters (even after smelling a "mildew-like" odor the first time), by leaving the wet towels there inside the leasehold for over a month, and by using fans to blow in the area. The repeated use of the wet towels allowed for a probable reactivation of the mold spores which are ubiquitous, and their prolonged presence inside the building resulted in more spores being there than would otherwise have occurred. The use of the fans to "solve" the problem ironically resulted in the spores being borne into the air and disbursed throughout the building, which magnified the problem. Furthermore, by abandoning all of her personal property, and by her complete cessation of work activities (even in alternate locations) the wife did not take all the steps she probably could have to mitigate her damages. This fact worked strongly against her at trial in the eyes of the jury.

Physical / Construction Aspects Of Case

The physical aspects of this case highlight the need to ascertain the status of the building envelope as accurately as possible. One simply cannot know too much about the construction, materials and history of any building that is allegedly "sick" (or at least causing occupants to be sick). In this case, neither the plaintiffs nor their experts developed the detailed knowledge base of the leasehold necessary to anticipate, let alone counter the evidence the defense was able to develop in this regard (most of which has been summarized above). The plaintiff’s experts wound up giving opinions regarding the sources of the moisture that gave rise to the mold growth which were literally physical impossibilities. The defense experts’ superior knowledge of the building enabled them to point out the impossibilities and improbabilities inherent in the plaintiff’s theories in this regard. Since it was plaintiff’s contention that the defendants’ maintenance of the property was the primary cause of water intrusion, being able to utterly rebut those assertions, on a detailed, point-by-point basis served to knock out the "causation" elements of plaintiffs’ claims.

Medical / Psychological / Indoor Air Quality Aspects Of Case

The indoor air quality and related medical and psychological aspects of this case, which were at the heart of the plaintiffs’ damage claims, highlight the shortcomings inherent in most plaintiff’s cases involving mold infestation.

Fundamentally, the causal relationships between molds (even potentially toxigenic ones) and human health effects is not well known. Moreover, there are no established dose-response mechanisms which can be used to ascertain what actual levels of exposure to molds or their metabolites result in what effects on humans. Consequently, there are no medically-based standards for mold levels, in either residential or commercial settings. Likewise, there are no state or federal standards for the abatement of known mold growth in either of those settings (though some jurisdictions, notably New York City, have promulgated abatement guidelines). These factors make it difficult for plaintiffs to prove that their claimed bodily injuries were in fact caused by exposure to particular molds. Even if the growth of a potentially toxigenic mold is confirmed in a space occupied by a plaintiff, there are no established standards to ascertain what exposure levels might possibly exist in the course of normal activities in that space; nor is there any medically irrefutable way to establish a causal linkage between such exposures and any specific diseases which a plaintiff might attribute to the claimed exposure.

In addition, most neuropsychologists will admit that persons who complain of symptoms which they attribute to mold exposures are not a representative sample group (i.e., they are not a reflection of the general population as a whole, but rather a self-selecting group generally more vulnerable from a psychological standpoint to suffer neuropsychological effects from perceived exposure to mycotoxins). The implications of this observation were apparent in the context of this case.

In the Tarp case, the plaintiffs complained of various health effects due to mold. The wife claimed the greater number of symptoms, many of which were diffuse in nature. In addition to the "multiple chemical sensitivity" described above, she complained of difficulty breathing due to the development of reactive airway disease, loss of memory, loss of stamina, mental confusion, loss of intellectual capacity. There were also some initial representations that she suffered from "brain lesions," but these assertions were not ever followed up on in either discovery or trial.

The defense’s medical examination of the wife led the examining neurologist to believe that she actually suffered from multiple sclerosis (a demeylinating disease marked by patches of hardened tissue in the brain or the spinal cord and associated with partial or complete paralysis and jerking muscle tremor). She in fact had a history of Bell’s Palsy some years prior (from which she claimed to have made a near-total recovery, based largely on her own efforts), and in her previous medical history there were several suggestions that previous diagnosing physicians suspected multiple sclerosis, well before she ever entered the subject property. However, at all times the wife was adamant that she did not suffer from multiple sclerosis, and she refused to accede to such a conclusion. These facts highlight the importance of developing a complete medical picture of a plaintiff who claims to have suffered bodily injury due to exposure to molds. In addition, the wife simply was not able to put on any credible evidence that the symptoms she suffered were causally related to the leasehold she had occupied, let alone that the defendants were directly responsible for what she claimed ailed her.

The defense’s neuropsychologist was also a key testifying expert. Neuropsychologists generally examine the relationship of brain injury to diminished function (compared to neurologists, who describe the organic state of the brain and nervous system). In this particular case, the defense’s neuropsychologist had a professional practice devoted to assessing and assisting neurologically impaired persons to rehabilitate. This issue became key in the Tarp case, because the wife had made virtually no effort to either resume her career as an interior designer, or to seek retraining in another field of work. Those facts, combined with the results of the psychological examination conducted on the plaintiff (which indicated a relatively high degree of functioning) played a large role in diminish

 

Jenses v. AMGEN Inc.

The plaintiff filed the lawsuit against his employer in October 2000, alleging that exposure to mold in one of the company’s buildings had caused a variety of ailments. The plaintiff is seeking $2 million.

 

J.J. Acquisition Corp. v. Pacific Gulf Properties

Employees of a California newspaper filed suit in September 2000 against the owner of their building, seeking $10 million for illnesses resulting from exposure to several types of toxic mold.

 

Spectrum Community Association v. Bristol House Partnership

The Spectrum homeowners association sued the developers and contractors in June 2000, alleging that construction defects caused the growth of toxic mold in walls and ceilings of the housing units. The homeowners claim that exposure to mold resulted in a variety of adverse health effects.

 

Crane v. Bank of America

An Ohio hotel manager sued the hotel owners, alleging that he experienced adverse health effects subsequent to participating in remediation of toxic mold in the hotel. The lawsuit was filed in March 2000.

 

Fickett v. Davis Management Corp.

The plaintiff sued the owner of an apartment complex where she had previously lived, alleging that she suffered injuries and her husband died as a result of exposure to toxic mold and bacteria. The lawsuit was filed in February 2000.

 

McCullogh v. USC Real Estate Development Corp.

The plaintiffs are a California condominium association suing the developers, contractors, and property manager for construction defects that they allege were responsible for toxic mold that caused personal injuries and property damage. The lawsuit was filed in November 1999.

 

Andrejevic et al. v. Board of Education of Wheaton-Warrenville School District No. 200, DuPage County, IL

This class-action suit was filed by approximately 1700 students, parents, and teachers. The plaintiffs are seeking $67 million for injuries caused by exposure to toxic mold and other indoor pollutants following a flood at the elementary school. The lawsuit, filed in July 1999, claims that the school district did not properly remediate flood damage, resulting in growth of the mold.

 

MacDonald v. Dufferin-Peel Catholic District School Board

Ontario Superior Court

The plaintiffs in this proposed class action lawsuit include students exposed to mold at various schools between September 1995 and June 1999, and their parents. The lawsuit alleges that the children’s exposure to toxic molds resulted in a variety of ailments. The plaintiffs are seeking $1 billion in general damages, $500 million in special damages and costs, and an additional $500 million in damages to the parents.

 

Erin Brockovich v. Robert Selleck

California

According to a story in the Sacramento Bee dated 3/8/01, Erin Brockovich filed a personal injury/construction defect complaint against the former owner (Robert Selleck) and the builder, alleging that each had a role in causing water intrusion that led to the growth of mold. Brockovich alleges that she and members of her family have suffered adverse health effects from exposure to the mold. 

 

Reber v. ServiceMaster 

Indiana

A story published by the Indianapolis Star on 8/12/01, Indianapolis Star says that Dennis and Debbie Reber recently filed a lawsuit alleging that ServiceMaster did a poor job removing moisture from the[ir] 4,600-square-foot home, causing mold to grow throughout the house. According to the Indianapolis Star report, attempts to clear the mold have already cost $43,000, and current estimates predict cost of removal to be $100,000. The article says that Allstate, the Rebers’ insurer, will only partially cover the cost of remediation efforts.

 

Melinda Ballard v. Farmers Insurance Group

State court in Austin, Texas awarded Melinda Ballard and her family $32.1 million in June 2001. The $32.1 million award represents $6.2 million for replacement of the home and contents, $5 million for mental anguish, $12 million in punitive damages, and $8.9 million for legal fees. It has been reported that Ms. Ballard intends to pursue further legal action against Farmers for health-related claims.

 

Thomas Anderson v. Allstate Insurance Company

On October 3, 2000, a California jury ordered Allstate Insurance to pay a policyholder $18.5 million in a coverage dispute over mold in the plaintiff’s home in Placerville, California. The award included $500,000 in damages and $18 million in punitive damages. The trial judge reduced the award to $3 million. The case is being appealed.

 

Marina Eddy, et al. v. C.B. Richard Ellis Inc., Henry Knott, AMG Realty Partners LP, Kronos Property Holdings N.V. and Maritime Reality Corp.

Three plaintiffs filed a suit claiming personal injuries stemming from exposure to mold and fungi in their workplace, an office building in Maryland. Injuries claimed include asthma and reactive airways disorder. The suit alleges that mold and fungi "were allowed to flourish" in the building’s heating, ventilation, and air conditioning system. The complaint was filed in the Baltimore County Circuit Court in Maryland.

 

Dean H.M. Chenensky, et al. v. Glenwood Management Corp., et al.

No. 120461/00, N.Y. Sup., N.Y. Co.

The plaintiffs seek approximately $180 million for injuries and personal property damage caused by their exposure to mold while living in the apartment owned by Glenwood Management Corp. and operated by East 77th Realty LLC. The plaintiff maintains that the defendants knew of the mold but failed to remediate it and did not notify the tenant of the condition.

 

Robert E. Coiro, et al. v. Dormitory Authority of the State of New York

The plaintiffs sought punitive and exemplary damages in the sum of $50 million, as well as an additional $5 million for services lost. Coiro alleged that he suffered from personal injuries and pain and suffering as a result of employment with LaGuardia Community College at the premises owned by Dormitory Authority of the State of New York. The complaint, filed in Queens County Supreme Court, maintained that toxic mold and fungus, water leaks, unsafe and unsanitary conditions, improper ventilation, and other dangerous conditions in the building created "an unsafe, contaminated and dangerous environment, all to the plaintiff’s detriment and loss." 

 

Charles Blum, et al. v. Chubb Custom Insurance Co., et al.

No. 99-3563-E, Texas Dist., Nueces Co.

Texas homeowners Charles and Leigh Blum sued Chubb Custom Insurance Co., Chubb Group of Insurance Companies, and Texas Windstorm Insurance Association, claiming that the insurer(s) denied, delayed, or failed to pay or properly investigate claims stemming from accidental plumbing leaks and roof damage. The case went to trial, and after 2-1/2 weeks the case was settled for $1.5 million on December 18, 2000.

 

Centex-Rooney Construction Co., Inc. v. Martin County, Florida

In an earlier lawsuit, Martin County sued its construction manager for dampness that promoted mold growth and excessive humidity in a courthouse. Fifteen employees in the building alleged injuries caused by exposure to the mold. The source of the water problem was the exterior insulation finish system (EIFS). On an appeal, the appeals court affirmed the $14 million verdict against the construction manager. Martin County also secured out-of-court settlements worth $3 million from other defendants.

 

Saddler v. County of Tulare

Approximately 100 employees at a Visalia County, California courthouse filed a lawsuit against multiple defendants, alleging that the workers experienced adverse health effects from exposure to toxic mold in the building. The suit says that various contractors negligently designed and built the courthouse and that the county did not properly maintain the building. Defendants include: the County of Tulare, Kitchell Capital Contruction Management, Garcia Construction Inc., Bakersfield Glass Co., Superior Academy Granite Co., Fresno Marble and Tile, San Francisco Lathing Co., Pacific Electrical & Mechanical Co., E.H. Moore & Sons, Kitchell CEM, Beaver Construction, Forcum/Mackey Construction Inc., C.W. Forcum Construction Inc., and Turrupseed Electric Service Inc.

 

Elisabeth B. Krant v. County of Tulare, et al.

No. 00-0190367, Calif. Super., Tulare Co.

Claiming that she was exposed to mold, Superior Court Judge Elisabeth Krant sued the defendants for dangerous condition of public property against public employee, fraudulent concealment, battery, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence by construction defendants and continuing nuisance.

 

Fulgham v. Merit Construction Co.

A teacher at Woodward Middle School in Bainbridge Island School District, Washington, filed a suit against the general contractor, construction manager, and architect of the school building. The plaintiff maintains that construction defects resulted in toxic mold in the classroom and in other locations in the building, causing personal injuries. The defendants in the case subsequently filed suit against several subcontractors (Merit Construction Co. v. Dunham Glass Inc.).

 

Mielke v. Riverside School District

Teachers and students at Riverside High School in Washington filed suit against the Riverside School District, the Riverside Superintendent of Schools, various contractors, and the architect of a school addition. The suit alleges construction defects, faulty design of the ventilation system, and faulty design of the windows led to toxic mold in the building and resulting adverse health effects. The plaintiffs also maintain that the school district violated civil rights by failing to "exercise reasonable care in insuring a safe school environment." The defendants have countersued each other and have sued subcontractors as third party defendants.

 

Foppe et al. v. Archstone Communities Inc.

Two former tenants in a Seattle apartment building filed a suit against the building owner for substandard construction and maintenance resulting in toxic mold that caused chronic illnesses. The plaintiffs are also suing for property damage due to the mold.

 

Samaris S. Davis, et al. v. Henry Phipps Plaza South, et al.

No. 116331/98, N.Y. Sup. N.Y. Co.

In May 1999, about 495 plaintiffs sought approximately $8 billion for personal injury and property damage due to mold and fungi contamination in two apartment buildings in Manhattan. The defendants were the owners of the building. On August 8, 2001, a New York judge denied class certification for the case. Class certification was sought on the liability issues only. A wrongful death suit has also been filed against the owners in connection with one of three deaths that may be linked to the mold exposure.

 

Sharon R. Wheeler, et al. v. Avalonbay Communities, et al.

No. BC 237274, Calif. Supr., Los Angeles Co.

A group of apartment residents sued the building owners and others for negligence, negligence per se, breach of implied warranty of habitability, public nuisance, intentional misrepresentation, negligent misrepresentation, and unfair business practices.

 

Susan Burke v. Board of Directors of the Pottsgrove School District, et al.

No. 00-CV-6061, E.D. Pa.

A school nurse asked to transfer to another school in the district after environmental tests revealed mold in the school building and her doctor’s determination that the plaintiff is allergic to mold. The request was refused. The plaintiff sued the school district, claiming violations of the Americans with Disability Act, her constitutional rights, and the Whistleblower Law.

 

Molly K. Atwood, et al. v. City of Vancouver, Washington

No. 012000253, Wash. Super., Clark Co.

The plaintiff claims that her home sustained flood damage because of the negligent construction and maintenance of a city storm water detention facility. Further, she claimed that the city did not properly remediate the flood damage, resulting in mold growth that eventually caused her and her family to abandon the home.

 

Elizabeth Stroot v. New Haverford Partnership, et al. 

Elizabeth Stroot and three other plaintiffs were awarded damages for medical expenses, permanent impairment, and pain and suffering associated to exposure to various mycotoxins, bacteria, fungi, and other toxins while living in an apartment complex owned by New Haverford Partnership. In May 1999, a jury awarded $1 million in damages to Stroot and $40,000 to Joletta Watson. In addition, the jury awarded damages for expenditures made for substitute housing: $5,000 to Stroot, $1,500 to Angela McCarthy, and $3,700 to Lois Schlindler. 

 

New Haverford Partnership, et al. v. Elizabeth Stroot, et al.

No. 95C-05-074-HLA, Del. Sup.

In a previous lawsuit, Elizabeth Stroot and three other plaintiffs were awarded damages for medical expenses, permanent impairment, and pain and suffering associated to exposure to various mycotoxins, bacteria, fungi, and other toxins while living in an apartment complex owned by New Haverford Partnership. In May 1999, a jury awarded $1 million in damages to Stroot and $40,000 to Joletta Watson. In addition, the jury awarded damages for expenditures made for substitute housing: $5,000 to Stroot, $1,500 to Angela McCarthy, and $3,700 to Lois Schlindler. In May 2001, the Delaware Supreme Court upheld the award to the residents.

 

Tarp v. E&W Associates, et al.

Fresno County Superior Court Case No. 5965603

Plaintiffs alleged a loss of business and bodily injury due to growth of toxic molds in a rental space leased from the defendants for an interior design business. The husband and wife plaintiffs claimed economic damages in excess of $1.8 million and general non-economic damages of an additional $3 million.

 

Berry v. Mission Terrace Homeowners Association

Three families sued their homeowners association in 1998, alleging that exposure to toxic mold had caused a variety of ailments. The case was settled for $545,000.

 

Doe Homeowners v. Roe Seller

New owners of a house in California sued the sellers in 1997, alleging that toxic mold caused bodily injuries and property damage. The case was settled for $1,353,000.

 

Komiyama v. City of Rialto

The plaintiffs alleged injuries due to the growth of mold following an incident in which raw sewage backed up into their home. The alleged injuries included brain damage and respiratory infections. The suit was settled in 1997 for $600,818.

 

Club at Wood Ranch v. Roberts Group

No. 21522 Ventura Co., Cal., Super. Ct.

In this case, a homeowners group sued builders and contractors, alleging problems due to toxic mold. The group settled for $1.3 million.

 

O’Hara v. Stangland et al. 

A Eugene, Oregon family sued general contractor Jeff Stangland, contractor Harvey & Son, and designer Michael Cockram for $3.5 million, alleging that faulty construction led to the growth of mold in their home and subsequent adverse health effects. Shortly before the start of the trial, Harvey & Son reached an undisclosed settlement with the O’Haras. Shortly after the beginning of the trial, the claim was dropped and a cash settlement agreed to. The O’Hara’s attorney said that the settlement would be paid by Stangland’s insurance company.