Household Mold Lawsuits are Spreading through the Courts

12/03/01

STAR-LEDGER STAFF

It drove Ann and William Miller out of their $5.5 million house in Alpine. Linda Santarsiero of Hamilton says it gave her nosebleeds and made her too sick to work her normal shift.

And it ravaged Marie Crosby's Branchburg home, ruining most of her furniture and closets full of clothes, her wedding dress and family pictures.

These people have two things in common: Their homes were invaded by stachybotrys atra, a black mold linked to everything from sinus infections to brain damage. And they are suing for damages.

Mold litigation is one of the newest growth industries in the legal profession. Hundreds of people around country are suing landlords, insurance companies, contractors and builders, claiming indoor mold growth has caused numerous health problems.

"Ten years ago we were like mold, schmold, and here we are. This (mold) could be my whole job," said Elizabeth Eilender, a New York attorney who represents the Millers.

Several lawsuits have yielded multimillion-dollar settlements or jury awards, including a recent case in which a Texas jury awarded a family $32 million after its home became infested with mold. Some lawyers have even become specialists, handling only mold-related cases.

Whether this is fad or a burgeoning new field is not at all clear. One of the remarkable things about mold litigation is that the number of cases keeps growing, even though there is no scientific research definitively linking mold to medical problems other than some respiratory illnesses.

And in mold cases, unlike asbestos and lead paint lawsuits, finding a specific person to hold responsible for the problem is often difficult.

"There are a lot of things that need to be considered and there are a lot of unanswered questions that make it hard to prove in a court of law," said Pat Perrone, an attorney with McCarter & English, a Newark law firm that is expanding its mold defense practice.

Even so, lawyers are winning some of these cases, because mold litigation is about convincing juries -- not scientists. In civil cases, legal proof is simply a preponderance of the evidence. The jury must believe the cause and effect are more likely than not to be related.

"That's 51 percent," said Eilender. "You don't have to be a rocket scientist to look at these people's medical charts and know something is wrong."

Mold litigation, often a sort of amalgam of techniques used in personal injury and construction defect cases, is quickly evolving.

When lawyer Ed Cross took on his first mold case more than six years ago, he was met with skepticism in the legal community.

"They laughed in my face," said Cross, a Santa Ana, Calif., attorney who represents people who have moldy homes. Since then, he has won mold settlements reaching almost $1 million and gets 50 calls a week from potential clients.

Attorney Alexander Robertson of Los Angeles, widely regarded as the most experienced mold litigator in the nation, struggled to find scientists and doctors who could explain mold and its impact on health when he started taking cases a few years ago.

"There was nothing out there. It was like finding yourself out in space," he said.

Now there are legal seminars on mold. This year alone, nearly 1,000 attorneys paid $1,000 each to attend conferences sponsored by one group on mold litigation. And many law firms are holding seminars for construction and building officials to let them know how to head off potential problems.

Mold is not a new problem.

In fact, the invader, smaller than a particle of sand, dates back thousands -- perhaps millions -- of years. It is useful because it helps matter decompose, but when unchecked it can do great damage.

In a house, mold can buckle walls, creep into air vents and become embedded in furniture. Because it festers in hidden places, by the time it becomes visible, it can already have caused significant damage. In addition to the stachybotrys strain, there are several other toxic strains such as aspergillus, chaetomium and penicillium.

Public health agencies, including the Centers for Disease Control and Prevention, say that most forms of mold aren't dangerous. But some types can damage buildings, and a study by doctors at the Mayo Clinic revealed a link between mold and respiratory problems such as asthma.

Although there have been a few private studies done on mold, including current research commissioned by the National Association of Home Builders, there have been no major government-funded studies of the issue.

"We know it's out there, we know it's a problem," said James Craner, a Nevada doctor who has examined more than 1,000 mold-exposed patients. "There is a growing consensus that what really needs to happen is a lot more true medical research."

Ann and William Miller say they have all the proof they need. Their sons, ages 7 and 8, suffered from anemia, had blood infections and underwent surgery. Their health problems are directly related to the mold, their suit claims.

"The house was dangerous; a hazard to life and limb; had been improperly constructed," and, the lawsuit claims, "was a breeding ground for mold."

Linda Santarsiero, 53, also knows the problem first hand. Her Mercer County apartment was overrun with the black mold and its invisible spores, a product, she claims, of leaky bathroom pipes. She says the exposure has caused her to lose clumps of hair, and has brought on night-time nose bleeds and severe fatigue. What's worse, she says, is that the experience has robbed her of being comfortable at home.

"You don't think of it as your home anymore," said Santarsiero. "It's almost like your enemy."

Many say the lawsuit boom has to do with the fact that there is little other recourse to dealing with mold problems.

As of Jan. 1, California will be the only state in the nation with legislation defining how much mold exposure may be unhealthy. In New Jersey, a state Senate committee has adopted a resolution urging the Department of Health to examine the issue.

As of now, the state health department offers a fact sheet on mold and a list of companies that can help clean up moldy homes, said Marilyn Riley, spokeswoman for the state Health and Human Services Department.

Marie and Philip Crosby say they never wanted to sue. The florist and welder from Branchburg who have three daughters say they prefer handshakes as a means of accomplishing their goals.

But they say mold forced them to abandon their Robbins Road home. Nearly 18 months ago, they took their children to the home of a friend, stripped them down, put them in the shower and sealed their clothes in plastic bags.

To return to their house, they say, they must wear respirators and disposable protective suits.

They filed a lawsuit last spring, charging construction defects led to the mold problem.

"I didn't have a choice," said Crosby, who says her children still suffer respiratory problems. "There was no alternative."

Kate Coscarelli covers the business of law. She may be reached at kcoscarelli@starledger.com or (973) 392-4147.