Why is mold litigation more prevalent than ever?

(The following is part six of a seven-part series on the growing rate of mold detection, remediation projects and litigation in the US, presented by the experts at the environmental health services group at LZA Technology, a division of The Thornton-Tomasetti Group.)

Does an epidemic of misguided construction explain the spate of spectacular mold litigation that we see in the press? Only in part. It is true that there are many legitimate lawsuits where mold was caused by some design or construction defect and where repairs are necessary. In these cases seeking damages through the legal system is appropriate and relatively straightforward. Straightforward because determining the cost of damage from a building defect, including resulting mold contamination, is a fairly objective process. You can count the square feet of repairs or total up the bills from the contractors. Usually these cases either settle out of court, or in court are reduced to bickering over how much some piece of repair work costs. These cases do not account for the high profile cases that have caught the popular press's imagination.

The mold cases that have created this controversy are the ones that include enormous claims for health effects from the exposure to the mold. Unlike the issues related to the cost of cleaning up the mold, the issue of the health effects from being exposed to mold and the damages that should be assessed for that are entirely unresolved in case law. Out of the courtroom, the scientific community appears to be approaching a consensus that the health effects from exposure to the concentration of mold encountered in most mold contamination cases is either unproven or extremely minor for the vast majority of the population.

Exposure to mold and the byproducts of mold is not an unusual condition in the human environment. In fact, some food products such as cheese, beer and bread are produced in part by the action of mold growth. Penicillin is the byproduct of mold. We even eat some types of mushrooms, a fruit of mold growth. We also are exposed to mold during the normal course of the year. At times, the amount of spores in the exterior air can be from tens of times higher than indoors to tens of thousands of times higher. So mere exposure to mold is not in-and-of-itself a cause for complaint.

Granted that exposure to some types of mold can be toxic. For example, there is no antidote for the deathly poisons found in certain mushrooms with ominous names such as Destroying Angel, Deathcap, Sickener and Fool's Mushroom. Eating members of the peyote mushroom family results in hallucinations. Eating certain types of food-borne molds, such as ergot growing on rye flour, can cause seizures.

But exposure to other types of mold results in allergic reactions that are of less concern for a healthy individual. These include hay-fever-like symptoms and upper respiratory distress caused by the body's response to the foreign object. Eating certain types of cheese results in a migraine headache, a type of allergic reaction in certain individuals.

However, if a person has a compromised immune system or has pre-existing dangerous sensitivities to certain allergens, an exposure to even the mildest levels of mold can cause a reaction that can be life threatening. The reason the "boy in the bubble" lives there is because he would die if he were to be exposed to even minute amounts of mold. But do we design all buildings to meet those needs?

Except for these special cases, exposure to mold has not been shown to be a pervasive health problem for the population in general. In fact, the reason that there are no scientifically established "safe" levels of exposure to mold is because different people will react differently to the same exposure to mold. Regulatory agencies have not or cannot establish standards for "safe" levels of exposure to mold, since there is no scientific data on which to base such regulations. The courts are being put into the position of having to establish what damages should be awarded for exposure to mold when no scientific standards for what constitutes unreasonable exposure have been established.

In many of these lawsuits, the basis of the claim is purely faulty deductive logic. An individual has some types of symptoms that have no obvious cause. These symptoms may range from running nose, asthma, memory loss, loss of libido, cancer, miscarriage, bloody nose or digestive problems. In a well meaning but misguided effort to self-diagnose the problem, the sufferer gets a "IAQ" test kit at the hardware store and takes one sample of his home by rubbing a cotton swab on the coffee table. He/she mails the sample to a laboratory using a self addressed envelope and a few weeks later a test result arrives with the finding that there is mold in the home. They also thoughtfully include a paper describing the possible side-effects of exposure to the mold they found, containing words such as "toxic mold," "death," "evacuate the home" and the like. The homeowner then goes to the computer and enters "mold health problems" in an Internet search engine and gets thousands of results, most of which present a nakedly panic-inducing point of view. In an effort to determine the source of the mold, the homeowner goes to the yellow pages and retains the home inspector who has the largest advertisement on the page. The inspector finds that the house is under negative pressure, that there is staining on the wood joists in the home and that there is no air-barrier in the exterior wall. He also notes that the insulation layer in the attic is 1" less than required by code and that there is an unpatched hole through the slab where the piping from the tub goes below ground.

The inspector then makes the sweeping conclusion that the severe and possibly life-threatening health effects suffered by the individual are the result of rampant mold contamination caused by egregious building construction defects.

He suggests that evacuating the home may be wise and that extensive remediation should immediately begin. He offers to enter into a contract to complete this work and to provide thousands of dollars of environmental testing to demonstrate how well the project is proceeding.

From this it is a small leap for the individual to start looking for the culprit to sue for these insults.