Mold Sampling and Expert Retention

Virginia Shefa B.S., M.N.Sc., C.I.A.Q.P.
Vice-President/General Manager, Design for Health Environmental Services
San Diego, California
dfhes@aol.com

Thomas P. Redick
Gallop, Johnson & Neuman, L.C.
St. Louis, MO
tpredick@gjn.com

With mold litigation sprouting like mushrooms around the country, many lawyers are encountering some difficult decisions in dealing with technical experts. This checklist will assist lawyers with some of the expert retention and technical issues raised in mold litigation.

Whom should I hire first?

As noted in the preceding article, retain a certified industrial hygienist with experience in mold litigation or remediation should be the first expert retained. Since testing may be discoverable, the lawyer may also want to hire a "vestpocket" consultant for any testing, and plan to hire a testifying expert later (thereby potentially avoiding production of written work, including work product analysis provided to the lawyer). Once the scope of the mold problem is defined, additional experts relevant to particular injury or causation issues can be retained. Even the smallest case, however, must have its hygienist as the gatekeeper that defines the scope of the mold contamination.

When should a lawyer order mold testing of a property?

This may be the biggest tactical decision an attorney will face. Often one mold claim comes in the door for an apartment or business tenant with multiple residential units or offices, and testing of that property could open the door to additional claims.

In making the decision to test, a hygienist can provide technical guidance in predicting the probability of an adverse finding. Issues to consider here include:

• The conditions of the property,
  
• The potential plaintiffs that reside in or around the area,
  
• Is there obvious water intrusion or a particularly humid environment?
  
• Are similar properties nearby documented as having mold?
  
• Are particularly problematic mold species likely to be present?
  
• Is the homeowner alleging serious health issues?
  
• Sometimes it may prove wiser to forego testing during litigation over the alleged mold effects.

Are there levels of mold testing that vary in costs and accuracy?

Mold testing divides into two categories that read like an Old West "Wanted: Dead or Alive" poster. Dead mold organisms can be picked up in a quick test for "non-viable" mold organisms. This is a screening test that will not determine the particular species of mold (the biotech companies may change that someday soon with their DNA testing, but for now, non-viable mold is non-specific).

Viable mold organisms have to be grown in a culture, which allows them to be characterized as particular species. The worst mold organisms can be identified and appropriate action taken to prevent serious illness or a fast-spreading hysteria in a particular apartment complex or business office.

What should be scrutinized in the other expert's report?

To determine whether the mold indoors is beyond the norm for the area, testing of outside sources should be included. Comparable conditions should be present - not six feet of snowpack or pouring rain. A sunny moist morning will provide suitable testing conditions that will hold up on cross-examination.

Care should also be taken to scrutinize any expert that has manipulated the test for viable organisms toward finding the organism of choice. For example, if toxic mold happens to have a fondness for oatmeal, it will grow better in that medium. The medium makes the mold.

Since many of the questions arising in mold litigation involve subjective decision-making by experts about the level of mold that is "safe" or "clean" after remediation, it pays to communicate with a network of other lawyers involved in mold litigation. This allows ideas to be floated before they become a plan of action. This newsletter, the Section's committee list serves and other Section committee functions provide opportunities to connect with other lawyers handling mold cases.