Introduction to Mold
 What is it?
 How is it caused?
Introduction to Mold
 Most Common
 Stachybotrys
 Aspergillus
 Cladisporium
 Penecillium
 Trichoderma
Introduction to Mold
 Where does it grow?
 Methods of Exposure
 Dermal
 Inhalation
 Ingestion
Law Suits / Claims
Personal Injury & Property Damage
Law Suits / Claims
 Personal Injury Claims:
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Respiratory ailments
Nose throat irritation
Asthma
Brain damage
Skin rashes/dermatitis
Hypersensitivity (multiple
chemical sensitivity)
Exacerbation of pre-existing
conditions
Allergies
Memory loss
CNS damage
Headache
Potential Claimants / Plaintiffs
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Home Owners
Renters (residential and commercial)
Commercial/Industrial Property Owners
Invitees
Employees
Others
Potential Defendants
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Property Owners
Employers
Builders / General Contractors
Developers
Sub-Contractors
Remediation Contractors
Landlords
Design Professionals (A&E)
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Building Managers
Product Manufacturers
PPE Manufacturers
Realtors
Sellers
Inspectors
HOA’s
Carpet Cleaners
Sampling Companies
Types of Claims
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Failure to maintain
Negligent selection of contractor
Negligent design
Negligent installation
Negligent inspection
Design defect (professional liability)
Manufacturing defect
Failure to address complaints (ADA)
Breach of contract
Breach of warranty
 Implied fitness/habitability
 Express warranty
Types of Claims
• Strict liability (mass produced and products)
• Misrepresentation and/or fraud
• Breach of covenant of quiet enjoyment / constructive
eviction
• Intentional infliction of emotional distress
• Negligent infliction of emotional distress
• Diminution in value
• Loss of use
• Punitive damages
• Relocation
• Lost rent
• Wrongful death
• Per quod claims
Potential Defenses
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Statute of Limitations
Statute of Repose
No Negligence/Foreseeability
Medical/Liability Defense
No Violation of Duty/Standard
Early Claims Handling
Settle or Assign to Defense Counsel?
– Do you have all the information you need?
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Diagnosis of a mold related condition
Complete medical/occupational history
Proof of liability
Air samples/wipe samples
Is remediation complete?
– Were/are costs reasonable?
• A reasonable demand?
• Possibility of future claims?
Assigning to Defense Counsel
 Initial Evaluation/Litigation Budget
 Identify what is missing that will allow you to settle
the case or defend aggressively
 Obtain missing information
 Determine if experts will be needed
 Prepare budget
 How to set reserve
 Other considerations
Discovery
• Interrogatories
– Not limited to the use of form interrogatories
(toxic tort)
• Request for Production of Documents
– Get all documents from Plaintiff
– Get documents from third parties
• FOIA/OPRA
Discovery
• Geographic location of exposure
– Flood plain
– Industrial/Commercial Sites
• Notice of mold causing
condition (SOL)
• Equipment used on site
– sump pump
– French drains
– de-humidifier
– air filters
– HVAC
• History of structure
• Plumbing
• Roof
• Insulation
• Foundation
• Remodeling
• Carpeting
• Etc.
Discovery (cont’d)
• Remediation
– Who did it
– When it was done
– Supporting Documentation
– Notice
• Description of Mold
– Could be ordinary, non-toxic
household mold
• Cleaning agents and chemical
used in home
• Full occupational history
• Smoking
• Drug/Alcohol
• Allergies
– Pollen
– Pets
– Grass
• Symptoms of injury claimed
– What are they
– When did they start
– What treatment has been
received
– What records/testing are
available
Discovery (cont’d)
• Complete Medical History
– All records
– X-rays
– PFT’s
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Pharmaceutical History
Out-of-pocket expenses
Medical
Wages
• Previous injuries/lawsuits
• Hobbies
– Soil work
• Cleanliness of exposure site
Deposition
 Expand upon interrogatories and other paper
discovery
 Get as much detail as possible
 Lock Plaintiff into a story
Deposition (cont’d)
 Obtain impeachment/credibility information
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Arrests/convictions (fraud, dishonesty, moral turpitude & felonies)
Previous depositions and testimony in court
Relationship with parties
Who the witness met with (when, where, how long, etc.)
Who paid for travel
Oral or written statements
Documents or statements reviewed
Preparation
Who was present during meetings
Selection of Attorney
Ask for DL
Types of Experts
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Industrial Hygienist
– Anticipates, recognizes, evaluates and controls health hazards in a work or home
environment
• Collects samples for analysis
• Comments on the types of and amount of mold found
• May be able to comment on sufficiency of exposure/dose response
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Mycologist
– Expert in the study of fungi
• Can provide the same opinion as an industrial hygienist, but is more specialized
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Pulmonologist
– Specialist in diseases of the lungs and respiratory tract.
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Will be able to comment on Plaintiff’s respiratory injury
Comments on link between mold and injury
Comments on sufficiency of exposure/dose response
Can provide theories as to alternative causation
Types of Experts (cont’d)
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Allergist/Immunologist
– Physician who specializes in treatment of allergies
• Will conduct IME
• Skin test and blood test
• Will comment on injury claimed
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Toxicologist
– Studies adverse affects of chemicals/substances on living organisms
– Good for general and specific causation
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Epidemiologist
– Studies factors affecting health and illness of populations
– Good for general causation
– Can comment if substance can cause a particular illness only
Types of Experts (cont’d)
 Engineers/Construction Experts
 Will Comment on cause of intrusion/liability
 Remediation Expert
 Will comment on the methods employed to remediate
 Will comment on the reasonableness of costs
 Real Estate Experts
 Will comment on the duty to disclose
 Will comment on loss of use and diminution
Types of Experts (cont’d)
 Economist
 Will comment on lost wages
 Will comment on lost profits
 Inspectors
 Will comment on inspector negligence
 Will comment on building code and whether code was violated
 Geologists
 Studies the physical structure and processes of the earth
 Hydrogeologist
 A geologist that studies distribution and movement of groundwater in the soil
and rocks of earth’s crust
 Will comment on whether groundwater or surface water was a cause or
contributor of condition
 Most useful in professional liability claims
Investigation of Mold
 Performed by Certified Industrial Hygienist
(“C.I.H.”)
 Used to determine type and amount of mold
present
 Must prepare chain of custody
 Use AIHA accredited laboratory
Investigation of Mold
 Types of sampling
 Bulk
 Is it mold and is it actively growing?
 Can culture mold to determine species
 Surface samples
 Prep-lifting sample via tape (microscopic exam)
 Swab/wipe-rubbed with cotton and placed on culture plate
(can collect dust samples also)
 Surface mold v. airborne mold
 Above methods show surface mold
 To investigate airborne mold, must conduct air sampling (all
indoor environments have mold)
 Spore trap (air drawn across sticky surface)
 Impaction technique (spores drawn into a culturable
medium)
 Compare indoor samples to outdoor samples
Admissibility of Expert Opinions
Frye versus Daubert versus Rubanick
1. Generally accepted within the scientific community
2. Relevancy and reliability based on scientific
methodology
a. Empirical testing
b. Subject to peer review and publication
c. Known or potential error rate
d. Whether the theory and technique is generally
accepted by a relevant scientific community
3. Acceptance of theory by a substantial minority
Admissibility of Expert Opinions
Does it really matter?
 Most studies have shown the result is the
same whether Frye or Daubert applied
 Rubanick will allow more opinions get to the
jury
Presented by:
Marc S. Gaffrey, Esq.
Steven F. Satz, Esq.
Jacob S. Grouser, Esq.