Mold and Environmental Issues

I frequently receive questions about illnesses related to exposure to microbial growth and other conditions in water damaged buildings, and whether such medical conditions can form the basis of a personal injury claim.  Molds, of course, are generally recognized as allergens that can trigger respiratory symptoms in certain individuals.  For that reason, mold in buildings is considered an environmental issue that requires proper remediation.  Moreover, mold damages building components if left unaddressed.  However, repairs needed to remediate a water damaged building, and proof of a causal connection between exposure to specific molds and a particular symptom in an individual, are very different matters.   In the case of Montgomery Mutual Insurance Co. v. Chesson, , 206 Md.App. 569 (2012), the Maryland Court of Special Appeals found “that there is a genuine controversy within the scientific community with regard to whether exposure to water damaged buildings causes human health effects.”  As a result of the Court’s determination that “there is no consensus in the relevant scientific community that exposure to mold causes” medical injury, the testimony of a physician that mold exposure had caused illness was deemed to be inadmissible. (more…)

The Maryland Court of Appeals has affirmed a decsion of the Court of Special Appeals ruling that certain expert testimony is not admissible to support medical clams arising from exposure to mold and other environmental byproducts of damp buildings.  Such claims are often supported by a medical analysis known as “differential diagnosis” and sometimes referred to as “repetitive exposure protocol,” which as been used by physicians to attribute various medical symptoms to inhalation of mold in water-damaged buildings.  Rather than demonstrating a specific exposure to a specific mold resulting in a specific reaction,  differential diagnosis uses a process that “rules out” or “rules in” possible causes of symptoms a patient is experiencing to determine that their symptoms are related to exposure to mold.  Differential diagnosis has been frequently used to show an association between exposure to mold in wet buildings and certain human health effects.  In its opinion in the case of Montgomery Mutual Insurance Co. v. Chesson, the Maryland Court of Special Appeals held that this method is not sufficiently accepted in the scientific community so as to be used as a basis for medical testimony in mold cases.  The Court of Special Appeals reversed a trial court ruling that found such medical testimony to be reliable and admissible.  Maryland’s highest court, the Court of Appeals, has now affirmed the Court of Special Appeals decision.  Chesson v. Montgomery Mutual Insurance Co., Case No. 97, Sept. Term 2012. (more…)

Ober|Kaler Construction Group principal Raymond D. Burke and associates Mathew T. Vocci and Jackson B. Boyd secured judicial confirmation earlier this year in the Circuit Court for Baltimore City of a significant arbitration award on behalf of the owner of a penthouse condominium unit located at 100 Harborview Drive in Baltimore’s Inner Harbor.  The Circuit Court’s confirmation of the $1,252,487 arbitration award resulted in what is believed to be Maryland’s largest judgment against a condominium council of unit owners for its failure to maintain, repair, and replace the common elements of a condominium building (in this case, the roof system, exterior façade, and HVAC ductwork of a 27-story high-rise).  The Circuit Court also confirmed the arbitration award’s order of specific performance, which requires the condominium’s council of unit owners to replace the building’s roof system, repair its exterior façade, clean its HVAC ductwork, and insulate its rooftop exterior HVAC ductwork.  The value of the work required by the specific performance order is approximately $6 million. (more…)

Mold exposure in damp buildings has become an increasing subject of litigation over the last decade.  Often times, these claims are supported by a medical analysis called differential diagnosis.  This method as been used by physicians to attribute various symptoms to inhalation of mold in water-damaged buildings.  Rather than demonstrating a specific exposure to a specific mold resulting in a specific reaction,  differential diagnosis uses a process that “rules out” or “rules in” possible causes of symptoms a patient is experiencing to determine that their symptoms are related to exposure to mold.  Differential diagnosis has been frequently used to show an association between exposure to mold in wet buildings and certain human health effects.  In its opinion in the case of Montgomery Mutual Insurance Co. v. Chesson, the Maryland Court of Special Appeals held that this method is not sufficiently accepted in the scientific community so as to be used as a basis for medical testimony in mold cases.  The Court of Special Appeals reversed a trial court ruling that found such medical testimony to be reliable and admissible.

I recently tried a construction defect case in which I was able to secure a significant jury award on behalf of the owners of a townhome in Montgomery County in a claim involving faulty construction and unfair and deceptive trade practices under the Maryland Consumer Protection Act.   I represented Subhash and Rita Dhawan in a suit against the builder of their home, Churchill Group at Maxwell Square, Inc.   The suit alleged construction defects discovered several years after the purchase, and was based on claims of negligence, breach of contract, and violations of the Maryland Consumer Protection Act (CPA).  They were awarded more than $400,000 in damages which included expert consultant costs and more than $300,000 in legal fees. (more…)

When mold was discovered in part of the Hilton Hawaiian Village in Honolulu, it ultimately resulted in the closing for more than a year of an entire 453-room 25-story tower.  It is reported that Hilton spent some $20 Million on consulting and investigation costs, and an additional $35 Million in the remediation.  This is one notable example among many of how the presence and growth of mold in homes and commercial buildings has developed into a serious issue that has potentially far reaching  consequences for residential and commercial property owners and managers, as well as for the construction and insurance industries.

Several states have established task forces to study mold and its effect on buildings and indoor air quality.  However, the intelligent dialogue required for the development of proper standards for mold exposure and remediation has, in large part, been drowned out by extreme voices.  On the one hand are those who summarily dismiss the issue as the fabricated product of a conspiracy between tort lawyers and a developing cottage industry of mold remediation consultants.  On the other are those readily prepared to broadly attribute a wide variety of medical conditions to the unhealthy environment of “sick buildings.”  (more…)