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MOLD LITIGATION Marc S. Gaffrey, Esq. Steven F. Satz, Esq. Jacob S. Grouser, Esq

Feb 24, 2016




MOLD LITIGATION Marc S. Gaffrey, Esq. Steven F. Satz, Esq. Jacob S. Grouser, Esq. Introduction to Mold. What is it? How is it caused?. Introduction to Mold. Most Common Stachybotrys Aspergillus Cladisporium Penecillium Trichoderma. Introduction to Mold. Where does it grow? - PowerPoint PPT Presentation

  • Introduction to MoldWhat is it?How is it caused?

  • Most Common StachybotrysAspergillusCladisporiumPenecilliumTrichoderma

    Introduction to Mold

  • Where does it grow?Methods of ExposureDermalInhalationIngestion

    Introduction to Mold

  • Law Suits / ClaimsPersonal Injury & Property Damage

  • Law Suits / ClaimsPersonal Injury Claims:Respiratory ailmentsNose throat irritationAsthmaBrain damageSkin rashes/dermatitisHypersensitivity (multiplechemical sensitivity)Exacerbation of pre-existingconditionsAllergiesMemory lossCNS damageHeadache

  • Potential Claimants / PlaintiffsHome OwnersRenters (residential and commercial)Commercial/Industrial Property OwnersInviteesEmployeesOthers

  • Potential DefendantsProperty OwnersEmployersBuilders / General ContractorsDevelopersSub-Contractors Remediation ContractorsLandlordsDesign Professionals (A&E)Building ManagersProduct ManufacturersPPE ManufacturersRealtorsSellersInspectorsHOAsCarpet CleanersSampling Companies

  • Types of ClaimsFailure to maintainNegligent selection of contractorNegligent designNegligent installation Negligent inspectionDesign defect (professional liability)Manufacturing defectFailure to address complaints (ADA)Breach of contractBreach of warrantyImplied fitness/habitabilityExpress warranty

  • Types of ClaimsStrict liability (mass produced and products)Misrepresentation and/or fraudBreach of covenant of quiet enjoyment / constructive evictionIntentional infliction of emotional distress Negligent infliction of emotional distressDiminution in valueLoss of usePunitive damagesRelocationLost rentWrongful deathPer quod claims

  • Potential DefensesStatute of LimitationsStatute of ReposeNo Negligence/ForeseeabilityMedical/Liability DefenseNo Violation of Duty/Standard

  • Early Claims HandlingSettle or Assign to Defense Counsel?Do you have all the information you need?Diagnosis of a mold related conditionComplete medical/occupational historyProof of liabilityAir samples/wipe samplesIs remediation complete? Were/are costs reasonable?A reasonable demand?Possibility of future claims?

  • Assigning to Defense CounselInitial Evaluation/Litigation BudgetIdentify what is missing that will allow you to settle the case or defend aggressivelyObtain missing informationDetermine if experts will be neededPrepare budgetHow to set reserveOther considerations

  • DiscoveryInterrogatoriesNot limited to the use of form interrogatories (toxic tort)

    Request for Production of DocumentsGet all documents from PlaintiffGet documents from third partiesFOIA/OPRA

  • Geographic location of exposureFlood plainIndustrial/Commercial Sites

    Notice of mold causing condition (SOL)

    Equipment used on sitesump pumpFrench drainsde-humidifierair filters HVACDiscovery

    History of structurePlumbing Roof Insulation FoundationRemodelingCarpetingEtc.

  • Discovery (contd)RemediationWho did itWhen it was doneSupporting DocumentationNotice

    Description of MoldCould be ordinary, non-toxic household mold

    Cleaning agents and chemical used in homeFull occupational history

    Smoking Drug/Alcohol


    Symptoms of injury claimedWhat are theyWhen did they startWhat treatment has been receivedWhat records/testing are available

  • Discovery (contd)Complete Medical HistoryAll recordsX-rays PFTs

    Pharmaceutical HistoryOut-of-pocket expensesMedicalWagesPrevious injuries/lawsuitsHobbiesSoil workCleanliness of exposure site

  • DepositionExpand upon interrogatories and other paper discovery Get as much detail as possibleLock Plaintiff into a story

  • Deposition (contd)Obtain impeachment/credibility information

    Arrests/convictions (fraud, dishonesty, moral turpitude & felonies)Previous depositions and testimony in court Relationship with partiesWho the witness met with (when, where, how long, etc.) Who paid for travelOral or written statementsDocuments or statements reviewedPreparationWho was present during meetings Selection of AttorneyAsk for DL

  • Types of ExpertsIndustrial HygienistAnticipates, recognizes, evaluates and controls health hazards in a work or home environmentCollects samples for analysisComments on the types of and amount of mold foundMay be able to comment on sufficiency of exposure/dose responseMycologistExpert in the study of fungiCan provide the same opinion as an industrial hygienist, but is more specializedPulmonologistSpecialist in diseases of the lungs and respiratory tract. Will be able to comment on Plaintiffs respiratory injuryComments on link between mold and injuryComments on sufficiency of exposure/dose responseCan provide theories as to alternative causation

  • Types of Experts (contd)Allergist/ImmunologistPhysician who specializes in treatment of allergiesWill conduct IMESkin test and blood testWill comment on injury claimedToxicologistStudies adverse affects of chemicals/substances on living organismsGood for general and specific causation

    EpidemiologistStudies factors affecting health and illness of populationsGood for general causationCan comment if substance can cause a particular illness only

  • Engineers/Construction ExpertsWill Comment on cause of intrusion/liability

    Remediation ExpertWill comment on the methods employed to remediateWill comment on the reasonableness of costs

    Real Estate ExpertsWill comment on the duty to discloseWill comment on loss of use and diminutionTypes of Experts (contd)

  • Types of Experts (contd)EconomistWill comment on lost wagesWill comment on lost profitsInspectorsWill comment on inspector negligence Will comment on building code and whether code was violated

    GeologistsStudies the physical structure and processes of the earth

    HydrogeologistA geologist that studies distribution and movement of groundwater in the soil and rocks of earths crustWill comment on whether groundwater or surface water was a cause or contributor of conditionMost useful in professional liability claims

  • Investigation of MoldPerformed by Certified Industrial Hygienist (C.I.H.)Used to determine type and amount of mold presentMust prepare chain of custodyUse AIHA accredited laboratory

  • Investigation of MoldTypes of samplingBulkIs it mold and is it actively growing?Can culture mold to determine species

    Surface samplesPrep-lifting sample via tape (microscopic exam)Swab/wipe-rubbed with cotton and placed on culture plate(can collect dust samples also)Surface mold v. airborne moldAbove methods show surface moldTo investigate airborne mold, must conduct air sampling (all indoor environments have mold)Spore trap (air drawn across sticky surface)Impaction technique (spores drawn into a culturable medium)

    Compare indoor samples to outdoor samples

  • Admissibility of Expert OpinionsFrye versus Daubert versus Rubanick Generally accepted within the scientific communityRelevancy and reliability based on scientific methodologyEmpirical testingSubject to peer review and publicationKnown or potential error rateWhether the theory and technique is generally accepted by a relevant scientific communityAcceptance of theory by a substantial minority

  • Admissibility of Expert OpinionsDoes it really matter?Most studies have shown the result is the same whether Frye or Daubert appliedRubanick will allow more opinions get to the jury

  • Presented by:

    Marc S. Gaffrey, Esq. Steven F. Satz, Esq.Jacob S. Grouser, Esq.

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