The Mold Threat

By Timothy R. Hughes | Feb 15, 2009
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Mold litigation has occasionally been described as the next asbestos by some impressed by the potential widespread claims and potential personal injury-related damages. Other commentators have pointed to hurdles faced by plaintiffs in getting medical testimony in front of juries.

Virginia has typically been a conservative jurisdiction where plaintiffs have struggled to introduce medical evidence in mold cases. However, in a recent case, Meng v. The Drees Co., the plaintiffs presented medical and other evidence to the jury. The large verdict may inject mold litigation regionally with fresh life.

Mold is ubiquitous. Any elevated moisture or water problems can lead to mold growth in new and old buildings. Electrical contractors may not face the same level of exposure to water-related claims as other trades, but the intricate interplay of systems and trades can leave ECs and related trades at risk for mold-related claims. In addition, company personnel, employees, subcontractors or suppliers may face their own mold-related situations. Your company may even be forced to defend or prosecute mold claims related to your own facilities.

Design and installation of mechanical systems and humidity levels directly affect the potential for mold growth. Electrical wiring, controls and connections are intertwined with the proper functioning of building mechanical systems. Similarly, problems with sprinkler design, installation and operation can lead to serious water problems. Again, the interplay between electrical and mechanical systems can lead to humidity or water issues. Finally, there always is the risk of one trade impacting or damaging another trade’s work during construction. Each of these situations can become a potential avenue for exposure to mold-related claims against electrical contractors.

In the Meng case, a couple purchased a $900,000 home in 2005 from one of the country’s largest builders. They alleged that the builder did not allow the house to properly dry prior to drywall and insulation installation. They claimed further that improperly installed windows leaked, asserting this led to excess moisture and mold growth.

The wife claimed she began to suffer serious migraines several months after moving into the home. She alleged she was bedridden for weeks at a time and sought treatment seven times during 2006 and 2007. After tests disclosed the presence of mold, the family moved out in April 2007. Plaintiffs asserted that the wife continued to suffer health impacts until she underwent a month-long detoxification program in September 2008.

In multiple prior cases, defendants in Virginia were able to exclude various medical experts. In those cases, the defendants were able to convince the judge that the medical testimony lacked a proper foundation and was lacking in proper scientific acceptance or credibility. In the Meng case, however, the judge allowed the treating physician to testify to the jury.

The interplay of other issues

In addition to the purely medical side of the case, the plaintiffs had various claims related to misrepresentation and property condition. The plaintiffs claimed they had to dispose of $100,000 worth of personal property that was infested with mold. They claimed further that the removal and/or repair of the damaged elements of the home would cost another $400,000. The plaintiffs incurred roughly $30,000 in medical fees. Finally, the plaintiffs alleged that there were either intentional or negligent misrepresentations by the builder prior to purchase of the home that some of the water-related problems had already been repaired.

The plaintiffs prevailed at trial. The wife won almost $2.3 million on her personal injury claim. The husband won $500,000 on his negligence claim. In addition, the jury awarded the plaintiffs almost $1.5 million for constructive fraud on the alleged misrepresentations and $500,000 for violation of the Virginia Consumer Protection Act. While the verdict has been rendered, there are still some issues outstanding in the case, and defendants are likely to file post-trial motions challenging some or all of these claims. In addition, there is a substantial likelihood of an appeal in this case.

Despite the potential for adjustment of the verdict, this case sends a warning message to the building community. Mold claims can sometimes be difficult to maintain in the face of scientific and legal challenges. Nevertheless, under the right circumstances, mold-related cases can present serious damage exposure to defendants if the medical evidence gets to the jury.

This article is not intended to provide specific legal advice but instead is general commentary regarding legal matters. You should consult with an attorney regarding your legal issues, as the advice you may receive will depend upon your facts and the laws of your jurisdiction.

HUGHES is of counsel to the law firm of Bean, Kinney & Korman in Arlington, Va. He can be reached at [email protected] or 703.525.4000.

About The Author

Timothy R. Hughes, Esq., LEED AP, is a shareholder in the law firm of Bean, Kinney & Korman, P.C. in Arlington Virginia. A construction, real estate and business attorney, he was recognized as a "Leader in the Law" in 2010 by Virginia Lawyer's Weekly and as a member of the "Legal Elite" for Construction Law by Virginia Business Magazine. A former chair of the Construction Law and Public Contracts Section of the Virginia State Bar, he is the Lead Editor of the firm's Virginia Real Estate, Land Use and Construction Law Blog. He may be reached at 703.525.4000 or [email protected].

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