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Sexy it's Not, but Mold is Real Hot

Bob Van Voris
The National Law Journal

The next time you see Julia Roberts battling corporate evildoers in spike heels and a push-up bra, don't be surprised if the villains are named stachybotrys, aspergillus and penicillium.

Erin Brockovich, the real-life law-firm clerk portrayed by Roberts in last year's hit movie, has a house with a bad mold problem. And, like many others who claim that they have been forced from their homes and workplaces by toxic mold, she's suing. Brockovich v. Morrison Associates, No. 051037 (Los Angeles Co. Super. Ct.).

Driven by media coverage of mold-contaminated buildings and by high-profile victims like Brockovich, toxic tort Web sites are flooded with inquiries from people who think they may be mold victims, too. Many plaintiffs' lawyers say they are hearing from potential plaintiffs in unprecedented numbers. Even as scientists scramble to understand the effects of dozens of different mold species on humans, toxic mold lawsuits are going to trial across the country.

"Mold is where asbestos was 30 years ago," says Alexander Robertson IV, who represents Brockovich, along with hundreds of other mold plaintiffs. Among the recent mold verdicts and settlements:

. In May, the Delaware Supreme Court upheld a $1.04 million award to two women whose landlord failed to address leaks and mold problems in their apartments, resulting in asthma attacks and other health problems. New Haverford Partnership v. Stroot, 2001 Del. Lexis 201 (May 7, 2001).

. In December, a homeowner settled a mold-related bad-faith lawsuit against his insurer, during trial, for $1.5 million. Blum v. Chubb Custom Insurance Co., No. 99-3563 (Nueces Co., Texas, Dist. Ct.).

. In October, a homeowners group settled, for $1.3 million, toxic mold claims against builders and contractors. Club at Wood Ranch v. Roberts Group, No. 21522 (Ventura Co., Cal., Super. Ct.).

. Last year, a federal jury in California awarded $18 million -- all but $500,000 of that amount in punitive damages -- to a homeowner against an insurer that declined coverage for mold damage. The trial judge reduced the award to $3 million; the case is on appeal. Anderson v. Allstate Insurance Co., No. 00-907 (E.D. Cal.).

In one of the first big mold cases, a Florida county sued the architect and builders of its $13 million courthouse, claiming that construction defects led to a problem that sickened 15 workers. After a trial in 1996, a state court jury awarded the county $11.5 million, which, adding in attorneys' fees and settlements with some of the defendants, exceeded the building's cost. Centex-Rooney Construction Co. v. Martin County, 706 So.2d 20 (Fla. 4th Dist. Ct. App. 1997).

Since then, plaintiffs have sued over claims involving other moldy courthouses, offices, schools, homes and apartment complexes.

Robertson says his first mold case came in 1997, on behalf of an unnamed actor and his wife who claimed the mold in their Malibu, Calif., house made them ill. Robertson settled the case for $1.35 million. Doe v. Roe (Los Angeles Co. Super. Ct.). He says his firm, Knopfler & Robertson of Woodland Hills, Calif., now represents 1,000 mold plaintiffs and has had to turn down hundreds of other cases.

MOLDY BUILDINGS

Mold can become a problem when moisture collects in buildings because of humidity, leaks, faulty venting and other problems. Several species of mold are known to produce toxins, although scientists are just beginning to understand how indoor mold affects people.

Most plaintiffs complain of respiratory illnesses like asthma or chronic sinus problems. Others allege injuries that are more serious -- and more controversial scientifically -- such as neurological damage and multiple chemical sensitivity. In March, the U.S. Environmental Protection Agency published guidelines for schools and office buildings to deal with mold problems. But the government and outside scientists haven't reached a consensus on many of the questions raised by their clients' cases, lawyers say.

As a result, the parties often battle over the admissibility of scientific evidence, which can be crucial to plaintiffs' cases.

Costly experts must usually be hired to establish the presence of toxic mold and to link mold exposure to a plaintiff's symptoms. Many of these experts, trained in asbestos and lead cleanup, are shifting to mold as the number of buildings contaminated by lead and asbestos decreases. Mold cases can be complicated legally as well, according to lawyers on both sides. Lawsuits may involve aspects of personal injury, construction defect and insurance litigation.

ON THE HORIZON

A California state senator, supported in legislative hearings by Brockovich, has proposed a Toxic Mold Protection Act that would set standards for mold exposure and cleanup and would require disclosure of mold problems when buildings are sold or leased.

The Texas Legislature is also considering bills that would address indoor air-quality issues, including mold, in schools and other public buildings. In May, Eugene, Ore., lawyer W. Randolph Turnbow began what was expected to be a three-week trial on behalf of Mark and Mary Jane O'Hara and their children. The O'Haras claim they suffered from severe respiratory and other health problems, a result of a faulty remodeling project.

Earlier this year, the O'Haras, apparently at the end of their rope, allowed firefighters to burn the house to the ground, both as a training exercise for the firefighters and to permit them to build a new home on the property. Defense lawyers claimed that the torching of the house was a stunt to win the sympathy of potential jurors. O'Hara v. Cockram, No. 00-12848 (Lane Co., Ore., Cir. Ct.).

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