The Mold Drama Continues
Mason contractors are constantly beset with the threat of claims relating to water penetration. Damages associated with mold repairs — not to mention personal injury claims flowing from mold — dramatically up the ante and the risk associated with water penetration cases. The potential threat posed by mold claims depends greatly on the specifics of the venue and the law applicable in the subject jurisdiction. For instance, a recent case in Virginia demonstrates both the potential risks of mold personal injury claims, as well as the continuing hurdles mold personal injury plaintiffs face in proving their claims.
The plaintiffs claimed they became ill as a result of living in the apartment, including having headaches, coughing, runny noses, respiratory problems and fatigue. They eventually left the apartment placing their belongings into storage and moving out of the area. While their condition improved after leaving, they claimed they never completely recuperated. They sought treatment with Dr. Richard Shoemaker, a Maryland physician, who prescribed a drug typically used for high cholesterol levels, which he claimed is effective in treating persons suffering symptoms from exposure to "toxic mold."
What is clear is that under existing law in many states, plaintiffs face a significant hurdle finding the right medical professional who can credibly attest to the cause in mold-based personal injury cases. In both this case and a similar case from a few years ago in the United States District Court for the Eastern District of Virginia (Roche v. Lincoln Properties), the plaintiffs' cases failed on this critical hurdle of medical causation and admissibility.
It must be emphasized that introduction of evidence, including expert testimony, is largely a matter of discretion of the trial judge. It should also be noted that the rulings of one state do not necessarily apply in other jurisdictions.
This case is yet another cautionary tale of the potential damages awardable in a mold personal injury case. Given the potential downside of huge damages, mason contractors need to have a good handle on their risk of mold claims in their jurisdiction.
About the Author
Tim Hughes is Of Counsel to the law firm of Bean, Kinney & Korman in Arlington, Va. He can be reached by email at firstname.lastname@example.org or by phone at 703-671-8200.
This article is not intended to provide legal advice, but to raise issues on legal matters. You should consult with an attorney regarding your legal issues, as the advice you may receive will depend upon your facts and the laws of your jurisdiction.