"Toxic” Mold Claims: Steps to Prevent and Aggressively Defend

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

TOXIC MOLD. SICK BUILDING SYNDROME. MOLD SICKNESS. These are some of the popular catch phrases employed by those who seek to profit by perpetuating the mythology that has fueled a cottage litigation industry of mold hysteria for more than a decade. Despite the rejection of these notions as “junk science” by the mainstream scientific community and many courts, mold-related litigation simply will not go away. Very simply, there is too much money to be made by plantiffs’ lawyers and professional experts, largely because of the ease with which the fear of the unknown can be leveraged into tidy settlements.

Every builder should be mindful of the risk of mold claims and how to address them, because they always arise out of a common and almost unavoidable problem—the presence of water where it doesn’t belong. This post will offer a thumbnail sketch of how to minimize the risk of mold claims, and if necessary, how to fight them.

The easiest way to avoid a mold claim is to stop it before it starts. Not every moisture complaint is going to result in a mold claim, but every mold claim starts with moisture. Training warranty personnel to be attuned to moisture complaints and proactive in addressing them is the best defense against a mold lawsuit in the first place. Most laypeople will not immediately associate a leak with mold, but the attorneys or forensic consultants they retain certainly will (if for no other reason than to transform a simple repair claim into something much more complicated and potentially lucrative). Happy owners whose builders respond to their concerns don’t hire lawyers or consultants.

To that point, when an owner complains that he suspects a mold issue, it is even more important to be proactive. At this stage, it’s not important whether one accepts that mold matters at all (from a building or health perspective). What’s important is that the owner is at least concerned that it does, and concern can quickly escalate into alarm. The key to keeping the situation from spiraling into a costly and disruptive lawsuit is to restore the owner to a sense of comfort. The most effective way to do this is through credible information and quick action. Here’s how:

  1. Bring in a qualified environmental professional.
  2. Disclose his or her findings and recommendations to the owner.
  3. Hire a qualified contractor to execute the recommendations.

Yes, you will spend some money, but the cost is nothing in comparison to the price tag for defending one full-blown mold lawsuit (particularly given that most commercial general liability carriers now try to disclaim coverage for mold claims).

But what if even your best efforts aren’t enough to avoid litigation? Or what if the owner decides to serve you with a lawsuit without ever letting you know that an issue exists? Very simply, it is time to dig in and fight. Whether the owner and his or her lawyer truly subscribe to the mold myth or not, they will try to leverage fear into big dollars (attributed to extensive repairs and environmental remediation, replacement or cleaning of building contents, and personal injury).

The fear they seek to leverage is the fear of that which cannot be seen and which is not widely understood. And the best defense to this strategy is the application of legitimate science to carefully gathered and examined data (concerning the property and the occupants). As is the case with many things we encounter in life, more information renders perceived threats less frightening and that is most certainly the case with the perceived threats from mold.

To this end, the composition of your defense team is critical. An effective defense team should include:

  • a competent environmental professional to gather and interpret the appropriate data, evaluate the data gathering methods and conclusions of the other side, and define the appropriate scope of remediation, if any;
  • one or more physicians or other specialists in biological sciences who can draw distinctions between the real and imagined human health effects of mold, and as to the former, define the necessary parameters for proving causation;
  • if the cause or extent of moisture intrusion or damage is in dispute, a professional engineer or other qualified construction professional to address those issues; and
  • defense counsel who possess the experience and technical proficiency necessary to understand and apply the scientific issues at play in the case. (The technical competence of counsel is critical, since it is the defense attorney who will not only be responsible for eliciting the evidence needed for your defense from the rest of the team, but also, and perhaps more importantly, for identifying and gathering the necessary information concerning the owner’s case and taking his or her consultants to task in discovery and at trial.)

The defense of a mold claim can be a long and protracted battle and one that is best avoided if at all possible through proactive and attentive customer service. But it is won by an aggressive and unyielding defense determined to make sure that the jury’s decision will be based upon hard, scientific data and facts.

W. Kyle Dillard is a shareholder in the Greenville office of Ogletree Deakins.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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