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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:
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
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
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.