For decades, asbestos law suits have crowded court room dockets and garnered the media's attention. As politicians attempt to answer the asbestos litigation problem, there is a new toxic tort that has drawn comparisons to asbestos -- toxic mold. As was the case with asbestos, the national media first brought toxic mold to the public's attention with over the top headlines. Examples of these headlines include "Nightmares on Mold Street," "Is Your Office Killing You?" and "The Mold in Your Home May be Deadly."

It did not take long for plaintiffs' attorneys to recognize the asbestos-like opportunities of mold litigation and capitalize on the mold publicity. Plaintiffs' attorneys have since taken a 'mold is gold' attitude that is evident through the estimated 10,000 mold-related lawsuits that have been filed in the United States within the last decade.

In an effort to prepare potentially liable entities for mold litigation, the following offers a brief explanation of toxic mold, what entities are prone to toxic mold liability, and some practical suggestions for the toxic mold defendant.

Toxic Mold and Its Effects

One reason that some experts predict a mold litigation boom is because of mold's prevalence. There are well over 100,000 species of mold in our ecosystem and roughly 1,000 species in the United States. Mold's prevalence is attributable to the limited resources it needs to survive -- namely moisture, oxygen, and something to digest.

Several types of indoor molds have the potential to produce spores that contain substances called mycotoxins. Some believe that these mycotoxins can become dangerous when released into the air. These mycotoxin-producing molds have been coined "toxic molds," and include the mold species Stachbotrys, Aspergillus, and Penicillium. Notably, there is no definition of "toxic mold," nor is it scientifically recognized. Instead, the term is a media creation used to describe mold that is potentially harmful.

Questionable Health Effects

There is little disagreement among the scientific community that mold is an allergen and can affect allergy sufferers who have a predisposition to environmental triggers. Common symptoms of mold exposure include a cough, congestion, a runny nose, eye irritation, and aggravation of asthma. Moreover, some studies have connected mycotoxin-containing mold or "toxic mold" with more serious health effects.

Importantly, however, the methodology of these studies has been questioned. For example, in the mid-1990s the Center for Disease Control & Prevention ("CDC") published a report that investigated whether mold was responsible for the bleeding lung disease found in eight Cleveland area infants. The CDC report was cautious in its conclusions and did not announce a definite link between mold and the infants' disease.

The following year, an epidemiologist concluded that based on the CDC study, Stachybotrys caused the infants' disease. In 1999, the CDC recanted its findings from the Cleveland study. CDC's 1999 report indicated that the earlier study was flawed, that more mold research was necessary, and that there was no proof that Stachybotrys caused serious health conditions. Another study conducted by the American Industrial Hygiene Association in 2001 concluded that there was insufficient research regarding the health effects of Stachybotrys on human health.

Moreover, according to a 2004 report issued by the Institute of Medicine, there is no definitive evidence linking mold to brain damage, reproductive problems, or cancer. Thus, as these studies suggest, there is a lack of solid scientific support for the premise that mold is "toxic" at typical indoor exposure levels.

So Why all the Lawsuits?

Despite the scientific community's refusal to recognize a link between mold exposure and serious health effects, mold-related lawsuits continue to rise. The proliferation of mold lawsuits is largely attributable to the undeniable media attention given to toxic mold. Articles focusing on toxic mold have run in popular publications such as Time, People, The Wall Street Journal, and the NY Times. Television has further highlighted the alleged health effects of mold. In September 2001, for example, 48 Hours produced a piece about mold called Silent Killers. Predictably, the media-created public perception of toxic mold as a silent killer has led to an increase in mold-related lawsuits.

Moreover, mold litigation has received increased attention from celebrities who claim to also be victims of toxic mold. For instance, Erin Brockovich sued the sellers and builders of her new home for over $1 million in damages because of alleged mold damage. Also, Ed McMahon sued his insurance company for $20 million because the alleged toxic mold in his home caused him to become seriously ill. McMahon settled the case for more than $7 million.

Check back next week for Part II of "The Growth of Toxic Mold Liability and Its Targets.

Published: November 25, 2005

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