MOLD LITIGATION Marc S. Gaffrey, Esq. Steven F. Satz, Esq. Jacob S. Grouser, Esq.

1. MOLD LITIGATION Marc S. Gaffrey, Esq. Steven F. Satz, Esq. Jacob S. Grouser, Esq.

2. Introduction to Mold • What is it? • How is it caused?

3. Introduction to Mold • Most Common • Stachybotrys • Aspergillus • Cladisporium • Penecillium • Trichoderma

4. Introduction to Mold • Where does it grow? • Methods of Exposure • Dermal • Inhalation • Ingestion

5. Law Suits / Claims Personal Injury & Property Damage

6. 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

7. Potential Claimants / Plaintiffs • Home Owners • Renters (residential and commercial) • Commercial/Industrial Property Owners • Invitees • Employees • Others

8. Potential Defendants • Building Managers • Product Manufacturers • PPE Manufacturers • Realtors • Sellers • Inspectors • HOA’s • Carpet Cleaners • Sampling Companies • Property Owners • Employers • Builders / General Contractors • Developers • Sub-Contractors • Remediation Contractors • Landlords • Design Professionals (A&E)

9. 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

10. 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

11. Potential Defenses • Statute of Limitations • Statute of Repose • No Negligence/Foreseeability • Medical/Liability Defense • No Violation of Duty/Standard

12. Early Claims Handling Settle or Assign to Defense Counsel? • Do you have all the information you need? • 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?

13. 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

14. 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

15. Discovery • History of structure • Plumbing • Roof • Insulation • Foundation • Remodeling • Carpeting • Etc. • 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

16. 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

17. Discovery (cont’d) • Complete Medical History • All records • X-rays • PFT’s • Pharmaceutical History • Out-of-pocket expenses • Medical • Wages • Previous injuries/lawsuits • Hobbies • Soil work • Cleanliness of exposure site

18. Deposition • Expand upon interrogatories and other paper discovery • Get as much detail as possible • Lock Plaintiff into a story

19. 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

20. Types of Experts • 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 • Mycologist • Expert in the study of fungi • Can provide the same opinion as an industrial hygienist, but is more specialized • Pulmonologist • Specialist in diseases of the lungs and respiratory tract. • 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

21. Types of Experts (cont’d) • Allergist/Immunologist • Physician who specializes in treatment of allergies • Will conduct IME • Skin test and blood test • Will comment on injury claimed • Toxicologist • Studies adverse affects of chemicals/substances on living organisms • Good for general and specific causation • Epidemiologist • Studies factors affecting health and illness of populations • Good for general causation • Can comment if substance can cause a particular illness only

22. 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

23. 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

24. 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

25. 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

26. Admissibility of Expert Opinions Frye versus Daubert versus Rubanick • Generally accepted within the scientific community • Relevancy and reliability based on scientific methodology • Empirical testing • Subject to peer review and publication • Known or potential error rate • Whether the theory and technique is generally accepted by a relevant scientific community • Acceptance of theory by a substantial minority

27. 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

28. Presented by: Marc S. Gaffrey, Esq.Steven F. Satz, Esq. Jacob S. Grouser, Esq.