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Mold Issue Under the Microscope

Two events have put the issue of mold right back in the spotlight again. The first was the January publication of an article calling into question two scientific studies heavily relied on by defendants in mold cases. The second is the expected introduction of new mold legislation in Congress. These developments prove that mold worries aren't going away anytime soon.

Studies biased?

The first shoe dropped with the January 2007 publication of a Wall Street Journal article questioning the objectivity of the authors of a 2002 study by the Elk Grove Village, Ill.-based American College of Occupational and Environmental Medicine (ACOEM). Among the study's primary conclusions were that there's no evidence indoor mold causes serious health effects, and that even if it did, it's highly unlikely that people could face enough exposure to become ill.

Such conclusions have been manna from heaven for defendants in mold cases, who've relied on the ACOEM study to argue that the testimony of plaintiffs' experts is so unsupported by scientific evidence that it shouldn't even be allowed at trial. Without an expert, a plaintiff's case dies, which is exactly what's happened to some plaintiffs' claims.

The WSJ, however, reported that the ACOEM study's authors are frequent experts — at rates ranging from $375 to $710 per hour — for defendants in mold litigation, a fact never disclosed by the authors or ACOEM. In fact, one of the study's authors admitted earning $250,000 to $500,000 annually as an expert witness in cases that included mold claims.

Lawyers who handle mold cases disagree on the effect of the WSJ article on pending and potential mold cases. “I've reviewed the summary of findings from ACOEM,” says W. Stephen Benesh, an attorney with Bracewell & Guliani LLP in Austin, Texas, who represents defendants in mold cases. “It's just part of the ever-increasing wave of recognition that there's no real basis in law and science for mold claims. It's up to plaintiffs to show that this long-respected society has an agenda, and I think that's far-fetched.”

Despite the authors' ties, the ACOEM study still has merit, says T. Sky Woodward, an attorney with Miles & Stockbridge PC in Towson, Md., who also defends mold cases. Woodward says it's valuable as part of a broader collection of literature supporting defendants' claims that there's insufficient scientific evidence to prove mold causes significant health problems.

Specifically, Woodward points to a 2004 study by the D.C.-based Institute of Medicine (IOM). “The problems with the ACOEM study don't really matter as much since the IOM report,” she says. “That's the more relevant piece of scientific literature I'd rely on.”

But even the IOM study also left avenues for plaintiffs to pursue, warns Alexander Robertson IV, an attorney at Robertson & Vick LLP in Calabasas, Calif. Robertson represented late-night legend Johnny Carson's sidekick, Ed McMahon, and Erin Brockovich in their personal injury mold cases. Brockovich was the law clerk who helped prove California residents were harmed by a California utility, and whose story was made into a movie starring Julia Roberts.

Robertson now primarily represents commercial property owners. “I tell people the IOM study said, ‘It's the water, stupid.’ It said that you have to solve moisture intrusion problems because if you don't, you get mold, bacteria, and an unhealthy living environment,” he says.

While personal injury claims get a lot of attention, says Robertson, they're declining. But claims for property damage in large commercial properties are increasing.

Robertson has represented huge hotels and 50-story luxury condo buildings whose owners have brought claims alleging contractors' practices facilitated the growth of mold. “Those are the largest dollar-amount cases, in the tens of millions, but they don't gain as much popular media attention as the personal injury cases. And they're usually handled quietly because the owners don't want to publicize that their buildings have a problem.” Those cases, says Robertson, are here to stay.

Look for new rules

Against the backdrop of the dispute over the science, new federal legislation on mold is likely on the horizon, says Karen Morgan, a spokesperson for Rep. John Conyers (D-Mich.). Conyers introduced legislation in 2002 that would have provided for research on the science of mold and established guidelines for mold inspection, testing, and remediation. The proposed legislation also required mold inspections for multifamily properties and all property purchased or leased with funds guaranteed by the federal government. That legislation failed to pass.

Morgan says it's too early to know the specifics of the next incarnation of the legislation. “Rep. Conyers is meeting with major groups that supported the past legislation, and wants to see what new issues need to be addressed,” she says. Once changes are made to the prior proposed legislation, says Morgan, Conyers will reintroduce the new bill in Congress.

G.M. Filisko is a reporter and attorney based in Chicago who writes regularly on legal and real estate issues. She can be contacted at [email protected].

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