Molds or mold spores are airborne biological contaminants that exist commonly in nature. The spores may be invisible to the eye and can grow indoors or outdoors. Of the 100,000 types of molds, only about 300 can cause adverse reactions in humans, and only about a dozen are responsible for most lawsuits. Molds can cause toxic or allergic reactions, but different people may react differently to mold exposure.
There are EPA guidelines, but no specific legally enforceable standard. Some experts believe that air testing that shows higher mold concentrations inside than outside, or other types of testing that shows mold forming colonies exceeding 10,000 per square inch or gram of material tested, require further investigation or remediation. Common building molds include aspergillus, basidiospores, cladosproum, fusarium, stacahybotrys, and trichoderma.
Since mold can be anywhere, many lawyers have predicted that mold claims will eventually result in wide-spread litigation similar to other toxic tort claims, such as asbestos. To date, although some plaintiffs have received large verdicts, the explosion of mold litigation has not yet occurred. This is because many insurers routinely exclude mold coverage and the causal connection between mold and personal injury is difficult to prove. However, numerous cases exist in which substantial recoveries have been obtained in Virginia and other southern states when causation and/or an imminent danger has been proved. Even when no injury has occurred, removal or remediation can be very costly. The Wall Street Journal has recently reported that mold related claims reached $2.5 billion dollars in 2002.
Mold litigation or legal issues normally arise in the following areas:
- sale or rental purchase of residential homes or rental units;
- sale purchase of commercial property;
- workplace safety; and
- construction projects.
When litigation is filed, claims are often presented against building owners, building sellers, contractors, subcontractors, home inspectors, architects, employers, and engineers. Since the most common standard AIA forms do not address mold issues, the allocations of risk or exposure among various contractors, subcontractors, architects, etc. are often not identified. Some newer contracts, including national builder warranty contracts, often contain releases or waivers by purchasers or renters of buildings or rental units. Some of these contain one-sided arbitration clauses which may generally not be enforceable in Pennsylvania. See Carll v. Terminex Intl. Co., 793 A.2d 921 (Super. Ct. 2002). Current standard real estate forms in Pennsylvania do not ask sellers about mold.
Mold litigation is very complicated. Given the current state of the medical and causative science of mold, expert testimony meeting the requirements of the Frye test (Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) or the Daubert test (Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993)) will be present only in certain cases. See e.g. Traub v. Crawford & Co., No. 1995 - 153-C-153 (Pa. C.P. Lehigh Cty. July 2, 2002). Similarly, given the absence of federal and state standards on hazardous levels of mold, expert testimony on hazardous mold levels is also subject to challenge.
Recent cases from other jurisdictions have held that the economic loss doctrine applies to bar negligence claims based on mold damages. In Lesser-Pointe Condo Assoc. v. Harbour Point Bldg. Corp., 2002 W.L. 32072394 (Va. Cir. 2002) a Virginia trial court held that since the entire condo was the "product," there was damage only to the "product" and no tort claim (as opposed to contract claims) applied.
The wave of the future may be the passage of legislation setting forth requirements for disclosure, clean-up, etc. California has a Toxic Mold Protection Act. The United States Toxic Mold Safety and Prevention Act (SB732) is pending in Congress, and provides for detailed regulation. OSHA and other federal agencies are also considering regulations. Current Pennsylvania law (Real Estate Disclosure Law, 68 Pa. C.S.A. §7301, et seq., and the Unfair Trade Practices and Consumer Protection Act (UTPCPA), 73 P.S. §201-1-201-9.2) already provide for certain duties to disclose or warn of material defects, which may include mold. The recent Pennsylvania Commonwealth Court case of Commonwealth v. Percudani, 825 A.2d 743 (Pa. Cmwlth. 2003) implies that the UTPCPA is now violated by any deceptive practices by defendants, even if these do not rise to the level of fraud.
For more information concerning mold or any other toxic tort issues, please contact Richard B. Sandow at rbs@jgcg.com. More information about the science of mold can also be obtained at http://www.epa.gov/1aq/molds/index.html.
This article is for information purposes only, and is not legal advice. If legal advice is needed, counsel should be contacted directly.
