September 20, 2007 8:32 AM CDT

The Mold Drama Continues

By Timothy R. Hughes, Esq.

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, Thomas and Rose Odaris, filed suit against the manager of their apartment building in Richmond Circuit Court. After the plaintiffs complained about mold growth in their apartment, a maintenance worker attempted to remove the mold, but it allegedly returned. Several more attempts at removal failed to remedy the problem. The plaintiffs alleged the property manager never fixed the source of moisture penetration, which meant the mold was bound to return.

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."

At trial, the plaintiffs called Dr. Richard Lipsey. The court allowed Dr. Lipsey to testify generally as a toxicologist regarding mold and its nature. The plaintiffs also attempted to call Dr. Shoemaker as a treating physician to testify regarding causation of their alleged damages. The court found that Dr. Shoemaker's use of cholesterol medication had not been approved by the Federal Drug Administration, but rather was only permitted on an experimental basis. In addition, the court found that Dr. Shoemaker's "diagnosis of 'chronic biotoxin associated illness' due to mold exposure was not commonly accepted or recognized in the medical community as a distinct entity and treatment." Finding a lack of proper expert foundation for Dr. Shoemaker's opinions, the court barred his testimony entirely.

The jury returned a verdict in the amount of $760,000 for personal injuries and $20,000 in property damage to the plaintiffs. On post trial motions, the court set the $760,000 personal injury component of the verdict aside. The court left the $20,000 property damage award intact. The court held there was no testimony demonstrating a causal link between the alleged medical damages suffered and the mold exposure claimed in the case. The toxicologist's testimony failed to demonstrate the specific causal link required. Without this critical element, the plaintiffs' entire case failed to demonstrate causation and there was no causation evidence to support the personal injury verdict.

While the results are in from the Richmond case, the final coda may yet be written. The plaintiffs intend to request that the Supreme Court of Virginia hear an appeal of the case. This author will take a risky editorial stance and opine that the trial court's decision is likely to stand up on appeal; however, there still is a potential lack of finality to the process of this particular case.

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.

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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 thughes@beankinney.com 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.

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