Fox News Employees
Sue Over Alleged Mold
Jan 27, 2006
Two Fox News employees have filed
a lawsuit alleging they were sickened by toxic molds and
pesticides in a building where some of the network's top
shows are produced.
The lawsuit, filed Thursday in Supreme
Court in Manhattan, alleges the employees fell ill in the
building where "The O'Reilly Factor" and "At Large with
Geraldo Rivera" are produced, as well as "Hannity and Colmes" and "Dayside." It
seeks unspecified damages from Fox News and the building's
The employees said in court papers
that the molds and the "inappropriate" use of cleaning agents
and pesticides caused headaches, dizziness, weakness, anxiety
and blurred vision.
Fox News spokeswoman Irena Briganti
said in a statement that the allegations "are baseless and
She said the federal Occupational,
Safety and Health Administration had declined to investigate,
and an onsite probe by the state's Department of Environmental
Conservation had "fully resolved" the matter.
The chemicals caused graphics technician
Laurette DeRosairo to develop acute asthma, a sensitivity
to scents that causes her throat to constrict and other
respiratory problems, according to the lawsuit. Makeup artist
Madronicia Clarke alleged she suffers chronic fatigue and
Mold Remediation Requires a Specialist,
Long-Term Solution May Be Elusive
Chances are you've never heard of "mold
remediation." Most homeowners haven't. Should you be
among unfortunate homeowners all too familiar with the label,
you never want to hear the expensive, time-consuming, complicated
You may eventually come face to face
with airborne molds if you live along hurricane pathways
or experience even minor water invasion from leaky pipes,
windows or gutters. The term is indeed worth knowing.
Mold remediators are experts who
work on-site to rid homes of this omnipresent problem once
household mold has been identified.
Often clad in spore-tight clothing
and respirators and armed with high-tech gear as well as
assorted equipment from drying agents to pry bars and saws,
this new contractor industry sprang up quickly once the
health risks of mold became clear.
But the niche business carries "buyer
States such as Texas have moved to
oversee the mold remediation business to assure taxpayers
that firms they chose to remove harmful molds meet minimal
requirements to get the job done.
The Texas Department of State Health
Services has licensed mold remediation firms since May 2004.
The department Web site lists 152 licensed contractors to
serve the entire state. With Hurricane Rita causing tens
of millions in dollars of water damage, the market for mold
assistance is huge.
In addition to certifying a company's
mold removal skills, Texas requires that the homeowner be
given a certificate of "mold damage remediation" by
the contractor. It verifies the work has been completed
in accordance with state guidelines.
Of course, the removal of mold is
no guarantee it won't return. If the homeowner doesn't remedy
a leak or water source or keep humidity levels to mold-unfriendly
levels, chances are good mold will return again. It is virtually
impossible to completely remove molds because the spores
are airborne and thus always present.
Not all states have such licensing
programs in place. Mold is a frequent topic for state health
departments, but in many cases homeowners are directed to "licensed
contractors," although a roster of such contractors
is not shown.
Consumers should check state health
department Web sites or call local health departments with
questions about mold remediation or recommended firms.
The Centers for Disease Control and
Prevention provides information on mold remediation and
general mold information but does not list mold remediation
Copyright 2006 Associated Press.
All rights reserved.
This material may not be published, broadcast, rewritten, or
Protecting Your Home From Mold
You might not be able to see it,
but it can cause major health problems. Dangerous mold and
bacteria may be growing in homes soaked by last week's Windward
Buried stairs, muddy carpets and
water-logged living rooms are all perfect conditions for
"It just takes a little pocket of
moisture left to cause quite a bit a problems later"
You only have a short amount of time,
48 hours, at the most 72 hours,"
"If you don't jump on it, the likeliness of damage goes up."
That's 48 hours to protect your home
and keep mold at bay.
While walls here may look dry, an
infrared camera shows moisture nearly three feet up. Wet
buildings may not be wet to the touch and don't appear wet,
but they are and countless flood victims are at risk.
Depending on the damage, you might
turn to a professional.
"The job is going to be faster, done
in days instead of weeks"
Mold removal contractors use pumps,
dehumidifiers and other tools to dry out your homes. But
the price tag might set you back a slight bit.
Experts suggest if you do it yourself,
you will have to take out carpets and rugs, pull out laminate
flooring and cut and replace at least four feet of damaged
"If someone takes it on himself,
use rubber gloves and masks to protect yourself,"
It is major work, but experts say it prevents major problems
Parents Address A Moldy Problem In Maryland
Written By Cindy
Pena 9 News
Many parents in Potomac, Maryland
are hoping to get answers about what the school system will
do to keep their kids from getting sick.
Some portable classrooms at Bells Mill Elementary
have been closed because of mold, forcing dozens
of students back into the already overcrowded main
A few months ago, these portables were places of
laughter and learning, but lurking behind the walls
was something toxic.
Greer Dellafiora's daughter spent four months in the
portable with her 4th grade class and got terribly sick.
Greer began sharing her story with other parents and
soon discovered her child wasn't alone. Other children
and a teacher suffered from headaches and breathing problems,
all associated with the mold found inside the portables.
Three portables are now closed, two permanently. A third
is being cleaned and may open again soon. Meantime, 70
students are inside the already overcrowded school, using
every available inch of space. Parents say closets have
become classrooms and some students are using shelves
as desks. But they add it didn't have to be this way.
The PTA at Bells Mill met with the cluster superintendent
Tuesday night. The school system has promised to replace
the moldy portables with brand new ones next year. But
that's four more months of learning in cramped closets
and other storage areas.
Dream home is a nightmare
By Al Greenwood
Staff writer March, 2006
Jean Hutchinson expected to live
the rest of her life in her new home.
Instead, the house cost Hutchinson
her health, she says.
The house had water problems that
were never adequately repaired, causing mold to grow in
the crawl space, according to a lawsuit. The mold released
toxins that made Hutchinson too sick to live in her home.
“There aren't many
days that I don’t fall asleep crying about it,” she
Hutchinson is suing the house builder,
Hornaday Construction Co., and two subcontractors, Suntree
Landscaping Inc. and Cape Fear Air Conditioning and Heating
John Hornaday, the owner of Hornaday
Construction, said he did not ignore Hutchinson’s
concerns nor any water problems with the house.
“We’re hopeful that when
we go to trial, we will prove that she is not correct,” he
Over the years, Hornaday’s
houses have won awards from his peers. Now he is being accused
of building a house that made someone sick.
“You do the best job you can.
When you get something like this, it does hurt,” he
A person at Cape Fear Air Conditioning
said the company had no comment. Likewise, a person from
Suntree said the company had no comment.
A $283,000 house
Hutchinson hired Hornaday in March
2004 to build a $283,000 house. The house had water damage
before it was completed, the suit says.
Suntree Landscaping never properly
graded the site. As a result, rainwater frequently washed
underneath the house. Cape Fear Air Conditioning and Heating
made the water problem worse when it damaged the foundation
wall while installing the air conditioner, the suit says.
At least three times during construction, water was pumped
from underneath the house.
Fill dirt in crawl space
Despite the flooding, Hornaday did
not remediate the crawl space, the suit claims. Instead,
fill dirt was used to cover up stagnant rainwater around
the foundation and inside the crawl space.
Hutchinson complained about the water
problems at least 12 times during construction, according
to the lawsuit. She told Hornaday that she was allergic
Before closing on the house, Hutchinson
had it inspected, the suit says.
The inspection report warned that
mold could grow in the house. It found problems with the
house and the grading that could contribute to water problems.
Hornaday signed an agreement saying he would repair the
problems as soon as possible.
However, the house continued to flood,
the suit says. After the closing, Hutchinson complained
about pools of water collecting in her back yard. Suntree
responded by adding some dirt. It marked the only time,
the suit claims, that Hornaday made any attempt to repair
the grading of the house.
In December Hutchinson removed about
300 gallons of water from the crawl space under the house,
the suit says. Hornaday continued to visit the house and
fix problems. However, the repairs were never adequate,
the suit says.
In March, an inspection by Matrix
Health & Safety Systems found high levels of mold for
a new house, the suit says. That same month, Hutchinson
was showing symptoms of mold toxicity. Her doctors ordered
her to leave the house.
Further inspections done in May by
Restoration Sciences found high levels of mold in the crawl
space, the suit says.
In June, Hutchinson had new health
problems, and her immune system crashed, the suit says.
In an interview, Hutchinson said
her health problems weren't caused by just allergies.
She was becoming sick from toxins being released by the
mold. Hutchinson became fatigued. Her vision was blurry.
Her heart raced.
Even now, Hutchinson said her skin
is so sensitive, she can’t shave her legs. Every morning,
her skin feels like it’s burning.
Hutchinson didn't expect
her new house would make her sick, she said. She bought
the house from her retirement savings.
Hutchinson moved to Fayetteville
from Summerville, S. C., so she could be closer to family.
Hutchinson, an artist, hanged her paintings in the house.
Now she worries that the mold could be growing on the canvasses.
“I don’t know what to
do,” she said.
Hutchinson’s allegations run
counter to the reputation Hornaday has built over the years.
His houses are featured in the Parade
of Homes, a house tour organized by the Home Builders Association
At one time, the association would
recognize the best houses in the parade. For years, the
houses built by Hornaday were chosen as the best in the
“We’ve achieved a good
reputation,” Hornaday said. He has had repeat customers
For Hutchinson’s house, Hornaday
said his lawyer instructed him not to comment about any
specific allegations made by Hutchinson.
Hornaday said people from his company
did go out to follow up on her concerns. Once the problems
were pointed out, the company took care of them.
In follow-up visits, Hornaday found
no signs of mold or water in the crawl space, he said.
Hutchinson, of course, is disputing
“I can honestly say that I’ve
never stepped in a courtroom to defend our honor,” Hornaday
Now, after more than 30 years of
doing business, Hornaday may have to do just that.
writer Al Greenwood can be reached at firstname.lastname@example.org
The Growth of Toxic Mold Liability and Its Targets: Part I
by Steve Setliff and Matt Mazefsky
November 25, 2005
For decades, asbestos law suits have crowded court room
dockets and garnered the media's attention. As politicians
attempt to answer the asbestos
litigation problem, there is a new toxic tort that
has drawn comparisons to asbestos -- toxic mold. As was
the case with asbestos, the national media first brought
toxic mold to the public's attention with over the top
headlines. Examples of these headlines include "Nightmares
on Mold Street," "Is Your Office Killing You?" and "The
Mold in Your Home May be Deadly."
It did not take long for plaintiffs' attorneys to recognize
the asbestos-like opportunities of mold litigation and
capitalize on the mold publicity. Plaintiffs' attorneys
have since taken a 'mold is gold' attitude that is evident
through the estimated 10,000 mold-related lawsuits that
have been filed in the United States within the last decade.
In an effort to prepare potentially liable entities for
mold litigation, the following offers a brief explanation
of toxic mold, what entities are prone to toxic mold liability,
and some practical suggestions for the toxic mold defendant.
Toxic Mold and Its Effects
One reason that some experts predict a mold litigation
boom is because of mold's prevalence. There are well over
100,000 species of mold in our ecosystem and roughly 1,000
species in the United States. Mold's prevalence is attributable
to the limited resources it needs to survive -- namely
moisture, oxygen, and something to digest.
Several types of indoor molds have the potential to produce
spores that contain substances called mycotoxins. Some
believe that these mycotoxins can become dangerous when
released into the air. These mycotoxin-producing molds
have been coined "toxic molds," and include the mold species
Stachbotrys, Aspergillus, and Penicillium. Notably, there
is no definition of "toxic mold," nor is it scientifically
recognized. Instead, the term is a media creation used
to describe mold that is potentially harmful.
Questionable Health Effects
There is little disagreement among the scientific community
that mold is an allergen and can affect allergy sufferers
who have a predisposition to environmental triggers. Common
symptoms of mold exposure include a cough, congestion,
a runny nose, eye irritation, and aggravation of asthma.
Moreover, some studies have connected mycotoxin-containing
mold or "toxic mold" with more serious health effects.
Importantly, however, the methodology of these studies
has been questioned. For example, in the mid-1990s the
Center for Disease Control & Prevention ("CDC") published
a report that investigated whether mold was responsible
for the bleeding lung disease found in eight Cleveland
area infants. The CDC report was cautious in its conclusions
and did not announce a definite link between mold and
the infants' disease.
The following year, an epidemiologist concluded that
based on the CDC study, Stachybotrys caused the infants'
disease. In 1999, the CDC recanted its findings from the
Cleveland study. CDC's 1999 report indicated that the
earlier study was flawed, that more mold research was
necessary, and that there was no proof that Stachybotrys
caused serious health conditions. Another study conducted
by the American Industrial Hygiene Association in 2001
concluded that there was insufficient research regarding
the health effects of Stachybotrys on human health.
Moreover, according to a 2004 report issued by the Institute
of Medicine, there is no definitive evidence linking mold
to brain damage, reproductive problems, or cancer. Thus,
as these studies suggest, there is a lack of solid scientific
support for the premise that mold is "toxic" at typical
indoor exposure levels.
So Why all the Lawsuits?
Despite the scientific community's refusal to recognize
a link between mold exposure and serious health effects,
mold-related lawsuits continue to rise. The proliferation
of mold lawsuits is largely attributable to the undeniable
media attention given to toxic mold. Articles focusing
on toxic mold have run in popular publications such as
Time, People, The Wall Street Journal, and the NY Times.
Television has further highlighted the alleged health
effects of mold. In September 2001, for example, 48 Hours
produced a piece about mold called Silent Killers. Predictably,
the media-created public perception of toxic mold as a
silent killer has led to an increase in mold-related lawsuits.
Moreover, mold litigation has received increased attention
from celebrities who claim to also be victims of toxic
mold. For instance, Erin Brockovich sued the sellers and
builders of her new home for over $1 million in damages
because of alleged mold damage. Also, Ed McMahon sued
his insurance company for $20 million because the alleged
toxic mold in his home caused him to become seriously
ill. McMahon settled the case for more than $7 million.
Published: November 25, 2005
Mold Litigation Targets and Claims: Part II
by Steve Setliff and Matt Mazefsky
Mold-related lawsuits target different types of defendants.
Potential targets include: contractors, insurers, construction
managers, property managers, architects, construction
component suppliers, real estate agents, homeowners
associations, schools, and building owners. These entities
face two primary categories of damages.
The first is property repair damages. Plaintiffs pursue
property damages by claiming that these entities were
negligent in their design or maintenance of the property
and that this negligence caused mold damage to the plaintiff's
property. Property damage liability includes the repair
and removal of mold damage, as well as the correction
of any construction defects. Thus, if mold damage is
limited to a small area, damages are minimal. In the
case of widespread mold, however, remediation often
requires extreme measures -- such as the removal of
For example, in 1997, plaintiffs sued a construction
manager for negligent design and construction of a county
courthouse. Centex-Recovery Const. Co., Inc. v. Martin
County, 706 So. 2d 20 (Fl. Dist. Ct. App. 4th Dist.
1997). In that case, window and exterior wall leaks
led to an infestation of mold. The Florida court decided
that the plaintiffs successfully proved that the construction
defects caused moisture and mold problems in the building.
As a result, the court awarded the plaintiffs $14 million
in damages to correct the structural defects. The largest
number of mold-related claims have been filed against
homeowners' insurance companies. Many of these suits
allege that the insurance carrier acted in bad faith
when denying a homeowner coverage to repair mold-related
damage. The bad faith claims open the door for the recovery
of punitive damages and large jury verdicts.
This is precisely the scenario that led to a $32 million
verdict in Allison v. Fire Insurance Exchange. In that
case, the Ballards, a Texas couple, filed suit against
their insurance company because the insurance company
failed to repair leaks that allegedly caused mold growth,
property damage, the husband's brain damage, and the
son's asthma. The jury found that the insurance company
engaged in fraud and unfair or deceptive acts, including
a failure to assign a competent independent claims appraiser
after the Ballards made a claim for buckled wood floors
caused by internal leaks. The jury returned a verdict
in favor of the Ballards for $32 million (including
$6 million for damage to the home; $12 million in bad
faith punitive damages; $5 million for mental anguish;
and $9 million in legal fees). The Judgment was eventually
reduced to $4 million.
In addition to property damage, property owners may
also sue based on their alleged mold-related personal
injuries. Thus far, mold-related personal injury claims
have not been as successful as property damage claims.
The failure of personal injury suits is due in large
part to the lack of science supporting the plaintiffs'
allegations that mold caused the plaintiffs' injuries.
Proving Causation: The Defendant's Best Weapon
Causation is the single greatest hurdle for a claimant
that seeks damages for mold-related personal injuries.
Plaintiffs seeking recovery for alleged mold-related
injuries must establish two causation elements --
general and specific causation. General causation
requires the demonstration that toxic mold can generally
cause the type of injuries that the claimant alleges.
Specific causation, on the other hand, requires proof
that the toxic mold in question actually caused the
injuries claimed by the plaintiff.
In toxic tort cases, expert or scientific testimony
is necessary to prove both prongs of causation. Without
such testimony, "there is insufficient evidence of causation
to create a triable issue of fact for the jury." (Cavallo
v. Star Enterprise, 892 F. Supp. 756 (E.D. Va. 1995)).
In federal courts, or in a jurisdiction that follows
the federal rules, the court is required to preliminarily
examine scientific testimony and keep out unreliable
or irrelevant expert opinions. The court fulfills its
duties by employing a flexible standard promulgated
in the Federal Rules of Evidence that asks the trial
judge to consider whether the scientific theory used
to make the experts opinion can be tested; whether the
scientific theory can be subjected to peer review; whether
there is a known rate of error in the scientific theory;
and whether the theory has attracted widespread acceptance
within the scientific community.
It is generally accepted in the scientific community
that mold can cause minor health problems such as allergic
reactions. More serious toxic mold health effects such
as memory loss or respiratory diseases are not, however,
as decided. In fact, the CDC study -- which represented
one of the few studies that linked toxic mold exposure
with more serious health effects -- was later reversed.
Therefore, a defendant has a strong argument that expert
testimony regarding toxic mold-related health effects
is unreliable and should be inadmissible. Because of
the lack of accord in the scientific community, plaintiffs
have difficulty proving that toxic mold causes serious
Further, specific causation requires the plaintiff
to prove that his mold exposure caused his current injuries.
To prove this prong of causation, the plaintiff must
identify the type of mold that allegedly caused plaintiff's
injuries. The plaintiff must also prove specific facts
relating to exposure, proximity, and duration. Finally,
the plaintiff must illustrate that the symptoms he experiences
are related to his mold exposure. It is often difficult
for a plaintiff to obtain this specific, but necessary,
information. Accordingly, a plaintiff's inability to
prove causation is a defendant's best weapon in a toxic
For example, in Roche v. Lincoln Property Company,
tenants sued the owners of an apartment complex for
damages resulting from alleged toxic mold contamination
in their apartment. Plaintiffs stated that they discovered
evidence of toxic mold in their Fairfax County apartment
and notified the property management office. An inspection
was ordered and mold was found. Specifically, plaintiffs
claimed that their apartment was poorly maintained,
that there were water leaks, holes in the wall, and
mold growing within the apartment. The plaintiffs contended
that as a result of being exposed to toxic levels of
mold, they suffered respiratory and other medical problems.
Accordingly, plaintiffs brought suit alleging breach
of the implied warranty of habitability, negligence,
and violations of Virginia's landlord-tenant laws.
Subsequent to leaving the apartment and after filing
their lawsuit, plaintiffs sought treatment from Dr.
Bernstein, an allergist. The plaintiffs' complaints
included memory loss, chronic headaches, sinus problems,
mild hypersensitivity to smells, and chronic nasal stuffiness.
After examining the plaintiffs, Dr. Bernstein stated
that he believed that the plaintiffs suffered from allergenic
effects from the molds and from sick-building symptoms
which Dr. Bernstein thought were probably secondary
to the mycotoxic effects of Stachbotrys present in the
Prior to trial, Lincoln property sought to bar the
testimony of Dr. Bernstein and obtain summary judgment
on all of plaintiffs' personal injury claims. Subsequently,
the District Court considered whether Dr. Bernstein's
testimony regarding the proximate cause of the plaintiffs'
personal injuries satisfied the standards of admissibility
under the Federal rules. The Court ultimately decided
that Dr. Bernstein's testimony did not satisfy the Federal
standard for admissible expert testimony.
First, the Court found that Dr. Bernstein failed to
adhere to the established methodology of differential
diagnosis by not ruling in the suspected causes of plaintiffs'
injuries and by not ruling out other possible causes
of plaintiffs' injuries. Next, the court found that
Dr. Bernstein failed to establish why various reports
and studies that show some correlation between mold
and allergic reactions supported his ultimate conclusion
that mold in the apartment caused plaintiffs' injuries.
Finally, the court decided that Dr. Bernstein relied
solely on temporal relationships to arrive at his conclusions.
Despite the causation hurdles, not all mold-related
personal injury claims fail. For example, a Delaware
court recently awarded a plaintiff $1 million based
on his mold-related personal injuries. New Haven Partnership
v. Stroot, 772 A.2d 792 (2001); see also Stevens v.
Pirates Lane Condominium Trust, Superior Court, Essex
County, Mass., Nov. 25 2003 (awarding $285,000 to plaintiff
for her flu-like symptoms allegedly caused by mold exposure).
Plaintiffs' attorneys "mold is gold" philosophy combined
with verdicts like that handed down by the Delaware
court promise plaintiffs' continued attempts to recover
for mold-related personal injuries.
Suggestions for Potential Targets
As the above cases illustrate, improper handling of
a toxic mold suit can result in large plaintiff's
verdicts or settlements. The cases further illustrate,
that the risk of liability increases for potential
mold defendants if they conceal mold contamination,
oversee a haphazard mold remediation, or involve themselves
in what the court may consider a misrepresentation
of a mold problem. For this reason, it is important
that potential toxic mold defendants implement protocols
to deal with toxic mold claims.
The protocols should involve the potential mold litigant
taking action up front by initiating an inspection,
and employing a remediation strategy. This, in turn,
reduces a plaintiff's ability to claim that a mold-defendant
misrepresented himself or acted with the bad faith that
may open the door to a large punitive damage award.
To help in a conservative remediation approach, the
real estate professional should look to sources like
the EPA and the residential mold remediation guidelines
published by the New York Department of Health. (See Epa.gov; see also NYC.gov.)
As another illustration of a liability-limiting protocol,
consider a property manager who knows of a mold infestation.
Before selling the property, the property manager should
put the mold problem in writing and provide it to the
homeowner. He or she should also test the area and put
the extent of the damage in writing. This way, the property
manager limits a plaintiffs' potential claim that the
property manager tried to conceal knowledge of mold
in bad faith.
Next, consider a situation where a real estate professional,
such as a building owner or contractor, notices signs
of possible water damage. That real estate professional
can protect his liability by recommending an expert
evaluation of the water damage. The real estate professional
should not act as an expert themselves or give expert-like
advice concerning the mold.
Instead, they should direct the prospective homeowner
to an expert in the field (such as an mold inspector
or industrial hygienist) who can then fully disclose
to the homeowner any potential mold problems. This way,
the real estate professional reduces the homeowner's
ability to claim that water damage was purposefully
concealed. Finally, in the interest of full disclosure,
potential mold defendants should encourage prospective
mold plaintiffs to educate themselves on mold in homes
through sources such as the Environmental Protection
Agency or OSHA.
In conclusion, mold-related claims are on the rise.
Such claims will likely continue to multiply in the
future. Potential mold defendants can, however, protect
themselves by implementing mitigating protocols and
seeking legal advice as soon as a potential mold claim
Published: December 1, 2005
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