The Creeping Case of Mold

John H. Reaves, Esq.
San Diego, California

Mold, a term for indoor fungi, has been attacking the world since its inception and helping recycle organic materials. More than 100,000 types have been identified, of which 1,000 are common in the United States. As buildings have been constructed more tightly, mold has found more footholds in areas where moisture is trapped.

Mold thrives on water. Molds commonly cause allergic reactions and infections, particularly in those individuals with sensitivities. Mold testing by an allergist may be negative for one of the few types of mold allergens available, while the individual may be allergic to many other molds. Molds cause the following types of impacts: allergies, infections, mucous membrane and sensory irritations, and toxicities. The degree of impact usually depends on a person's sensitivities and other stressors acting in combination, which is why most experts find it hard to generalize about the impacts of lower to moderate levels of mold, even for those types over which health concerns are often expressed.

Those molds species which industrial hygienists commonly find in buildings are Penicillium (such as P. citrinum), Stachybotrys (such as S. charturum (atra)), Aspergillus (such as A. parasiticus and A. fumigatus) and Cladosporium. These molds are thought to have potential for mild to severe impacts on people, although how they do so, and their exact impact, is not clearly understood, nor readily predicted.

The true dangers, however, occur from mold producing secondary metabolites, known as mycotoxins, which inhibit or stop other organisms from competing in the same area. They can be responsible for toxic health results. Mycotoxins are believed to work synergistically with other environmental irritants and to have an immunosuppressive effect. Mold periodically blooms and produces spores, and most mycotoxins are associated with the spores. The nature and number of mycotoxins are not well known or understood. Mold testing usually counts the spores, which serve as an indicator of the vastly more populous mycotoxins.

Consider, as an example of the complexity of addressing mold, that there are 140 known mycotoxins of Stachybotrys. S. chartarum, for instance, can produce highly potent trichothecene poisons, which can produce pulmonary hemorrhaging. Wet spores tend to be sticky and not easily aerosolized, so air samples might be misleading. Additionally, as mold dries, the mycotoxin release can increase exponentially. As a result, not only will parties wrangle over the degree of a problem, but also over the extent of remediation necessary and the impacts on the health of those exposed.

People typically encounter mold problems after improper construction which allows moisture to remain in enclosed spaces, inadequate air exchanges, HVAC or plumbing leaks or breaks, flooding, sewer backups and rain storms that force water into walls. Mold often grows between wallboards and spreads within the building's interior walls. The symptoms are often experienced before the mold is discovered or the causal effect appreciated.

With the increased awareness of mold and related illnesses, mold claims for property damage and personal injury are rising, particularly in the construction defect, landlord-tenant, personal injury and insurance context. The field is so new that there is very little case law specifically addressing mold to guide the practitioner. Unlike hazardous wastes, mold is not yet regulated. The legal theories are firmly based in common law.

Personal injury: It is difficult, if not impossible, to test and fully determine the type and quantities of mold, much less mycotoxins, or to quantify exposure. Therefore, proving personal injury was a consequence of exposure to mold could be extremely formidable. The equities of each case could be more instrumental in predicting the appeal and outcome of a case.

Causation: Consider the expense and difficulty of an industrial hygienist timely identifying the mold and its airborne concentration, and getting accurate measurements, on one hand, and a qualified medical expert, such as an environmental physician, allergist, mycologist or toxicologist, timely concluding the symptoms are caused by such exposure.

Damages: Consider the complexity of isolating the myriad symptoms that can overlap between mold-related and other ailments (e.g., headaches, dizziness, fatigue, confusion, depression, allergies, asthma, nausea, respiratory tract infections). People with suppressed immune systems are more vulnerable to mold sensitivities. By contrast, property damages that can more readily be quantified are often part of a construction defect claim, and make the best mold cases today.

Insurers' slack response to water damage and mold claims will come under intense scrutiny: delays, hiring deflooding companies with no mold remediation understanding or experience, making superficial cures or generally providing half-measures to resolve the problem, failing to pay for lodging to prevent the insureds from become more ill. Several large punitive damage awards have recently made headlines after stonewalling or cost-saving measures left the insureds and their homes exposed and vulnerable. Sometimes homes must be destroyed if mold penetrates too deeply into the structure to remediate properly or inexpensively.

Mold is here to stay, and along with it, mold litigation is spawning at a fast pace. While property damages may be identifiable, the extent of, or necessity for, remediation will be challenged. Personal injury claims will suffer from vexing causation issues except where the injuries seem inescapably linked to exposure at a site, such as with res ipsa loquitur. Until our scientific and medical understanding increases, we can expect the development of common law to deal with mold contamination to be blunt and vigorous.