Mold—The Next Asbestos?

By: David S. Riddle, P.E., Bricker & Eckler Construction Law Fellow

Reprinted from April 2006 ohioconstructionlaw.com

Is mold the “next asbestos”? When issues with mold’s impact on the building environment and occupants first started receiving widespread attention, some in the industry asserted that it was. The comment was generally intended to be a reflection upon the cyclic nature of environmental concerns. Issues are encountered, investigations are conducted, remediations are performed, the issues are permanently resolved, another environmental concern is encountered, and the process starts over. While the same issues occasionally arise again, generally, the hazard is permanently eliminated. Mold issues, however, do not appear to be following this trend.

Lawsuits over mold issues continue to be litigated. Craver v. Doogan (2006), 2006-Ohio-1783, 2006 Ohio App. LEXIS 1638, a case out of Clermont County earlier this month, illustrates this point in an action alleging personal injuries caused by mold.

The Cravers rented a home from Doogan in September of 1999. Shortly after moving into the home, they discovered that the roof was allowing water to enter into all areas of the house. Around this same time, the Cravers started to suffer from physical ailments.

In the spring of 2000, the Cravers observed what they believed to be mildew on the walls of the house. The mildew was later determined to be mold. The roof was not repaired, and the mold increased and spread throughout the house. The Cravers moved out of the house in May of 2001 and filed suit in July of 2001.

After voluntarily dismissing the action in February of 2003, they refiled it five months later, alleging personal injuries caused by Doogan’s failure to repair the defective roof. The trial court, as affirmed by the appeals court, did not reach the merits of the case, but instead, dismissed the case because the two-year time limitations imposed on the filing of personal injury suits had already passed. (The court said that ended two years after the Cravers moved out of the house.)

While Craver v. Doogan was not decided based on the facts of the case, it does show that litigation over mold continues.

Unlike many other environmental hazards, mold is a naturally occurring hazard. As a result, proving that the mold caused the injuries is frequently the most contentiously disputed part of mold litigation. Earlier this year, the Court of Appeals for Ottawa County, Ohio, Sixth Appellate District, addressed this issue in Terry v. Ottawa County Board of Mental R etardation and Developmental Delay (2006), 2006-Ohio-866, 2006 Ohio App. LEXIS 776.

The Ottawa County Board of Mental Retardation and Developmental Delay leased space for several offices in a building called the Buckeye Building. Employees of Ottawa County MR/DD complained about the conditions in the building such as leaky windows, leaky bathroom fixtures, and a malfunctioning heating and air conditioning system. The employees contended that these conditions allowed water to seep into the building and cause wood rot and mold. In turn, the wood rot and mold caused them to suffer respiratory and other medical problems.

In an effort to prove that the air quality caused their illnesses, the employees obtained an opinion from Jonathan A. Bernstein, M.D., an allergist and immunologist. The building owners asked the court to bar Dr. Bernstein from testifying, because they alleged that his testimony could not meet the legal standards for admission. The trial court granted the owner’s request and granted a summary judgment to the owners. The employees’ appeal asserted that the trial court erred when it excluded Dr. Bernstein’s testimony, and the Court of Appeals agreed.

In order to prove that a substance caused a plaintiff to suffer a particular medical condition, a plaintiff must show two things: “(1) that the toxic substance is capable of causing the condition (general causation) and (2) that the toxic substance in fact caused the plaintiff’s medical condition (specific causation).” The test comes from Valentine v. PPG Industries, Inc. (2004), 158 Ohio App.3d 615. In not allowing Dr. Bernstein to testify, the trial court erred, according to the appeals court. The trial court “threw the general causation baby out with the proximate [specific] causation bathwater.”

How does a court decide what scientific testimony can be admitted and what should be kept out of a trial? The United States Supreme Court set down a test to prevent the use of questionable science in . (1993), 509 U.S. 579, holding that the trial court judge’s role in determining the admissibility of an expert’s testimony is that of a gatekeeper. The testimony must present reliable evidence supportive of causation, not certain evidence of causation.

Once the judge has determined that the testimony is reliable, it is up to the jury to determine the weight to be given. In his deposition, Dr. Bernstein testified about the properties of mold and fungi that could cause it to become an irritant. Based on his knowledge, experience, and education, he said that mold is capable of causing the symptoms experienced by the employees. The appeals court held that this testimony should have been permitted.

The more difficult proof of causation is showing that mold is the cause of the specific plaintiff’s medical condition. With other substances, safe exposure levels have been determined. In order to prove specific causation, the plaintiff would have to show exposure to the substance at a level above the safe exposure level. However, no safe exposure level has been determined for mold. That makes proof of specific causation a challenge.

In an attempt to show the specific causation, Dr. Bernstein testified that the employees’ symptoms improved after leaving the building and returned when they returned to the building. Quoting from a federal case from Illinois, the court held that “it is well-settled that a causation opinion based solely upon a temporal relationship is not derived from the scientific method and is therefore insufficient.” While the court did not permit this method to prove specific causation, it did give some indications as to what would be acceptable.

The medical profession frequently uses a technique called “differential diagnosis” in order to determine the cause of a patient illness. The process involves determining a list of possible causes for the patient’s symptoms and then eliminating items from the list. The court suggested that this technique should be used to prove specific causation for each plaintiff in mold cases. Comparing this technique with Dr. Bernstein’s approach, the court noted that “while this temporal relationship may be powerful evidence in mold cases in order to reach an ultimate conclusion as to specific causation, it cannot alone suffice for a valid differential diagnosis unless other potential causes are ruled out for each particular plaintiff.”

Thus, to show specific causation, the plaintiff must eliminate other causes for his or her particular symptoms.

While the court determined that Dr. Bernstein’s education and experience qualified him to testify as to the capability of mold to cause illness, they did not give any detailed information on how he could prove that general causation.