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 management company.

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 lack merit."

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 autoimmune diseases.

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 term again.

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 beware" caveats.

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 by state.

Copyright 2006 Associated Press. All rights reserved.
This material may not be published, broadcast, rewritten, or redistributed.

Protecting Your Home From Mold

Kolby Akamu -kgmb9.com
March, 2006

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 Oahu flooding.

Buried stairs, muddy carpets and water-logged living rooms are all perfect conditions for mold.

"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 dry wall.

"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 later.

Parents Address A Moldy Problem In Maryland

Written By Cindy Pena 9 News
March, 2006

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 building.

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 said.

Hutchinson is suing the house builder, Hornaday Construction Co., and two subcontractors, Suntree Landscaping Inc. and Cape Fear Air Conditioning and Heating Co. Inc.

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 said.

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 said.

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 to mold.

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.

Home inspection

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.

Builder’s reputation

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 of Fayetteville.

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 parade.

“We’ve achieved a good reputation,” Hornaday said. He has had repeat customers and referrals.

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 his claims.

“I can honestly say that I’ve never stepped in a courtroom to defend our honor,” Hornaday said.

Now, after more than 30 years of doing business, Hornaday may have to do just that.

Staff writer Al Greenwood can be reached at greenwooda@fayettevillenc.com

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 walls.

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 health problems

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 mold case.

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 home.

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 surfaces.

Published: December 1, 2005

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