“This is a position paper intended to make a plausible argument on behalf of mold victims. Demonstrating precisely how particular legal rules may be impeding even handed justice in mold cases is a job for the legal community. Hopefully someone will accept the challenge.”
Ronald G Corwin, Professor Emeritus
Department of Sociology, Ohio State University
The Cleveland, Ohio Study
Two Papers Commissioned by the U.S. Chamber of Commerce
The Daubert Test
PART I: MOLD
Aspergillus, Stachybotrys Chartarum, and Chaetomium
Adverse Health Effects Commonly Associated With Various Types of Mold
Emotional Distress, Stress, and Heart-Related Problems
The “Mold-Is-Benign” Advocates
PART II: MOLD, MYTHS, AND SCIENCE
Myth: Science Has Proven Mold Harmless
Myth: Only Laboratory Experiments Can Produce Reliable Evidence
Myth: Plaintiffs Must Provide Scientific Evidence Proving Harm
Myth: Science Provides Absolute Proof
Myth: A Causal Explanation Must Account for Chemical Interactions at the Cellular Level
Myth: The Health Risks Associated with Mold Are Inconsequential
Examples of litigation
The Mold Wars
Ronald G Corwin, Professor Emeritus
Department of Sociology, Ohio State University
A seller failed to disclose water intrusions from a leaking ice maker and washer shut off valves, and also said he could not explain stains around the kitchen island. His realtor dismissed an odd odor throughout the house, saying it was coming from an air purifier. After the sale, the buyers (age 74) and their physically impaired adult daughter became sick with headaches, coughing up blood, bleeding through the nose, and related respiratory and pulmonary illnesses. One of them was hospitalized for “atypical” chest pains, tightness in the chest, and breathing problems, all diagnosed as stress related. A certified mold inspection company found massive amounts of toxic mold in three places throughout the house. The inspection report stated that the presence of Stachybotrys and Aspergiallus is indicative of moisture, and that Stachybotrys emits a mycotoxin that may cause a sensitive individual to react with the symptoms the buyers had been experiencing. The sellers refused to take any responsibility for exposing the buyers to health risks. And they could get away with it if the mold advocates have their way.
Maybe it is because so many lawyers and scientists make money working for defendants in toxic mold cases. Maybe it is because otherwise unbiased studies of mold’s effects on human health have been flawed. Or, maybe it is because science is simply incapable of answering the tough questions being put before it. For whatever reason, scientific credibility, and with it justice, have become casualties of the mold wars. Though not always deliberate, the ultimate victims are plaintiffs who have been harmed by mold. Influential skeptics are orchestrating attacks on credible evidence that clearly shows black mold is harmful. Courts are using fanciful visions of science to erect unattainable standards of proof. Science is being misused, misconstrued, or simply misunderstood, and the realities involved in applying it to mold cases are being blithely ignored. As a result, some mold victims are being denied evenhanded justice.
There are abundant reasons for believing that exposure to some types of mold is positively linked to human disease even though the causal chains cannot be fully explained. Yet mold advocates and other skeptics—among them some prominent scientists and health officials, as well as steadfast special interests—continue to question that there is a scientifically proven link between mold and illness, or at least serious illness, in otherwise healthy people. Apparently persuaded by some critics who are labeling research on mold “junk science,” some courts seem to be inappropriately applying a test that attempts to separate good from bad science, to the detriment of mold victims. Science is being misused, misconstrued, or simply misunderstood, and the realities involved in applying it to mold cases are being blithely ignored. As a result, some mold victims are being denied evenhanded justice
Ultimately the issues all come down to this one question: Is mold harmful? That is a straight-forward question. But the answers have been anything but straight forward. Turns out they depend on a host of complex variables, assumptions, and issues. Included among them are characteristics of the victim, of mold, and of illnesses so far studied and not yet studied; standards of acceptable proof; how to treat molds that may only contribute to or aggravate an ailment; the number of victims it takes before mold is counted as a serious threat; and how one regards “minor” reactions, such as skin and mucous irritations, runny nose, congestion, and flu-like symptoms that go away. Truth is, mold advocates do not rate some ailments as “serious,” even though 30 to 60 million people may be affected; that they are making unfounded generalizations long before enormous gaps in the knowledge base have been plugged; and that they minimize threatening risks to people only because they do not always materialize. Legal rules and traditions are obstructing justice for many mold victims. The courts have been complicit and must now decide which type of error to live with: the error of treating potentially dangerous mold as benign, or the error of treating potentially benign mold as dangerous.
Some resolutions are unfolding through a confluence of controversial research, pressures from business interests, politics, and ultimately court decisions. I show in the following pages that a handful of skeptics who are acting as advocates for mold want us to believe it is benign and are urging us to remain complacent about its potentially damaging effects. Their appeals are based on fallacies and twisted logic designed to prevent victims from substantiating harm from mold. The following review demonstrates there are actually abundant reasons for believing that exposure to some types of mold is positively linked to human disease. Even if the causal chains cannot be fully explained in terms of the chemical interactions involved, the data show that exposure to the mycotoxins present in specific types of mold makes some people sick, and at the very least creates a serious health threat to most people. Skeptics—among them some prominent scientists and health officials, as well as steadfast special interests—continue to question that there is a scientifically proven link between mold and illness, or at least serious illness, in otherwise healthy people.
Yet, it is telling that even the staunchest doubters do not advocate living with mold, and ironically they often prescribe steps to eradicate it even while denying there is evidence it can be harmful. Of course, a reasonable person can argue that there is nothing wrong with “playing it safe” by avoiding mold even though causal links with adverse effects have not been established. However, that is precisely the point. If a judge or lawyer will not live with mold because of fear, why should a plaintiff be penalized because he or she cannot provide scientific proof of harm? The challenge before the courts is to adjust standards to allow for the distinct possibility that it will never be possible to for mold victims to prove with scientific certainty that they were harmed by mold even though there is reason to believe they have been harmed.
In the following pages, you will find a story about scientific uncertainty and contests among researchers for methodological dominance. You will discern conflicts of interest, bias, political pressures, and wrangling over the validity of different kinds of legal proof. Then you will see that the outcomes of law suits have been random. Yes, you will hear about some bloated court awards awarded several years ago, but then you will also learn about a more recent backlash against mold victims who cannot meet unrealistic standards of proof based on esoteric scientific data not likely to have been obtained or could not afford to obtain. And finally, you will discover that the biggest allergic reaction of all is coming from business interests standing to lose billions of dollars from mold suits.
After a brief background narrative and an overview, Part I describes mold characteristics and some studies documenting its harmful affects, followed by implausible allegations being made by mold advocates who obstinately deny the evidence. Part II is devoted to exposing several myths that underlie the faulty science and logic that mold advocates use to support their skepticism about mold. More studies are reviewed there as well. Several myths the courts have adopted are discussed in Part III along with analyses showing how the courts are penalizing mold victims. A Conclusion and Appendix with examples of mold litigation follow.
In 2002, homeowners in California filed over 100,000 water-related insurance claims, and the number has risen steadily. It is estimated that over 10,000 mold-related court cases are pending nationwide, a 300 percent increase over a five-year period. The average mold insurance claim today costs about $35,000 and many exceed $100,000. In 1999, residents of a federally subsidized housing development filed an eight billion dollar lawsuit over un-repaired plumbing leaks responsible for mold infestation and a variety of problems ranging from skin rashes to memory loss. They settled for much less, but still over one million dollars. More recently, a high profile $32 million award for negligence and mental anguish went to Melinda and Ron Ballard, a Texas couple who charged their insurance firm with improperly handling a claim for water damage from a broken ice-maker valve, which allowed toxic mold to form and take over the family’s $3 million home.[i][i] Other major cases include an $18.5 million award to a California homeowner, and an action by a New York employee seeking $65 million for workplace mold exposure. In Illinois, a county courthouse opened in 1991 and was closed a year later due to health claims by hundreds of employees, resulting in a multi-million dollar settlement. A county courthouse in Florida had to be evacuated for mold remediation, and the county’s suit for $14 million against the contractor was upheld on appeal. And there are many more such cases, some of which are mentioned in the Appendix.
This rash of litigation has prompted some observers to label mold the “new asbestos”— which is say, a lucrative source of personal injury tort cases intended to fill a void left by declining asbestos claims which made many happy lawyers and their victimized claimants rich. However, mold litigation is not evolving quite that way. The difficulty in proving causation between mold and illness is one of the factors that distinguish mold claims from asbestos claims. Also, there is no one disease exclusively linked to mold, as there is to asbestos, and many mold injuries are considered to be less severe than those related to asbestos. Unlike asbestos, symptoms associated with mold often occur only in its presence and tend to disappear when exposure ends, although sometimes it does have lasting and even devastating effects. Also important is the fact that “deep pockets” are hard to identify. Insurers are now excluding or drastically limiting mold coverage from insurance policies (although claimants frequently have sued builders, public agencies, and product manufacturers).
The flood of litigation claiming adverse health effects from mold, coupled with mounting skepticism about those claims, has ignited a seismic backlash that is shaking up litigation in this area. Especially noteworthy are three papers and a legal opinion, which have inflamed intense controversies over whether toxic mold is harmful.
The Cleveland, Ohio Study
A scientific controversy over a 1994 Cleveland, Ohio study of a rare disorder characterized by bleeding lungs in eight infants has emboldened the skeptics.[ii][ii] The report claimed to have found evidence suggesting the malady might have been caused by a potentially deadly form of mold called Stachybotrys chartarum. The study’s authors were initially cautious, representing their findings as a preliminary evaluation of some suspicions. But by 1997, media were sensationalizing the study with titles like, “The Fungus Did It,” “Baby-Killing Fungus,” and “A Look at Deadly Mold Found in Homes.” The study’s lead author became more assertive about the casual role of toxic mold, even as her co-author continued to speak cautiously. In 1999, the Center for Disease Control (CDC) commissioned a panel of scientists to evaluate the validity of this research project. Their report unmercifully attacked the study on the basis of numerous methodological problems it identified, including inconsistency of case identification and measurement/assessment techniques, statistical shortcuts, and survey errors, as well as differences in the way control and subject cases were treated. The report also called into question both the small size of the sample and the diagnosis of the medical condition, which the CDC says is not a disease but a condition that accompanies a host of ailments. A later study of three infants, published in 2004, suggested that the infants with this particular pulmonary disease might have had underlying acquired or genetic susceptibility that predisposed them to pulmonary bleeding.
The scientist who headed the study, Ruth Etzel, M.D., was at the time employed by CDC as an epidemiologist. She has since resigned over the incident and now charges that the CDC has sought to bury the connection between mold and disease. In retrospect, it seems that the panel was justified in criticizing the authors for exaggerating the causal implications of their work. However, the panel itself can be faulted for using standards more appropriate to a pure experimental laboratory model than to field research, where often circumstances cannot be well controlled. Unfortunately, the controversy surrounding this one stream of research has obscured an emerging consensus among many scientists that mold and water-damaged housing are threats to human health, notwithstanding the inconclusive connection between Stachybotrys and the rare malady that struck the Cleveland infants. The significance of the CDC report has been grossly exaggerated by a clique of outspoken mold advocates who are using this one study to discredit other research on mold.
Two Papers Commissioned by the U.S. Chamber of Commerce
It did not take the U.S. Chamber of Commerce long to exploit the Cleveland study controversy. In July 2003, in conjunction with the politically tilted Manhattan Institute, the Chamber’s Institute for Legal Reform released two decidedly one-sided reports that were both calculated to crush claims that mold is a health hazard.[iii][iii]
The 1st paper. One of the papers is authored by two lawyers who categorically smear all research on mold as “junk science.” Their paper, provocatively titled “How Junk Science and Hysteria Built an Industry,” is an all-out attack on mold claims.[iv][iv] The lawyers—both of whom apparently have built practices representing the insurance industry and companies that have been targets of toxic tort cases—argue that the serious health claims that pervade mold litigation cannot withstand the scrutiny of reliable science.
Citing billions of dollars in claims suffered by the insurance industry, they casually flip off concern about mold as a fiasco produced by bad science and worse journalism. They steadfastly hammer away at mold claims, brushing them off as a symptom of hysteria and unfounded fears, promulgated by scary stories whipped up by media frenzy, and exploited by unscrupulous and unregulated remediators. And they don’t miss opportunistic trial lawyers, who they claim are exploiting junk science as “the new asbestos.”
Mundane mold is everywhere, they proclaim, but through a convergence of bad science, environmentalists’ sensationalist alarms, and entrepreneurship, it has become the basis of a new “toxic cottage industry” feeding on unfounded paranoia. The “sick building syndrome”—dry skin, mental fatigue, headaches, and airway infections—is, they contend, nothing more than a catchy but misleading fiction. The authors cite several surveys by prominent scientists and health organizations to bolster their case. For example, in 2003 Cleveland microbiologists concluded from an analysis of 465 references that there is no supportive evidence for “serious illness” from toxic mold in the contemporary environment. The American Industrial Hygiene Association and the National Institute of Occupational Safety and Health came to similar conclusions. Texas Medical Association’s Council on Scientific Affairs concluded that evidence for the existence of a separate “sick building syndrome” is weak.
The 2nd paper. The other paper that the Chamber of Commerce chose to sponsor, titled “A Scientific View of the Health Effects of Mold,” concludes that there is no scientific evidence that mold causes “toxicity” in doses found in indoor home environments.[v][v] The authors acknowledge that mold can cause allergies for people who are already susceptible to allergic reactions, and for individuals who are “immune-compromised.” However, they dismiss these cases, labeling them “rare” (even though they involve many millions of people).
The lead author, Brian Hardin, though not a physician, is a former Assistant Surgeon General in the Public Health Service. More to the point, Hardin went on to consultant with a corporation that represents insurance companies and profits from testifying against individuals claiming to have been harmed by mold. Another author of this paper has been in court over conflict-of-interest charges related to it.[vi][vi] Much of the data cited in the paper appears to have come primarily from a study of rats that were subjected for a few minutes to doses of mold.
The Daubert Test
The U.S. Supreme Court eventually entered the fray. Expert witnesses were being paid to slant their testimony to fit whatever opinion was needed, sometimes justifying personal opinion with pseudo theories without scientific basis. The Court reacted by telling judges to act as gatekeepers and vigilantly guard against fake experts and “science that is junky.” With the so-called Daubert test, the Supreme Court recognized that the scientific method used in research is also required in judicial analysis.[vii][vii] Factors making up this test include: The theory or technique must be falsifiable; its error rate must be known; it should be subject to peer review and generally accepted within the relevant scientific community; it should be measured according to standards used by the particular field of knowledge at issue, including non-technical fields; and, conclusions must be based on evidence.
Requiring courts to respect the cannons of science is a good thing. However, the Daubert test clearly stacks the deck against plaintiffs in toxic tort cases. Just how much it hurts them may be debatable, but it clearly sets an extreme standard that some lawyers can and probably will exploit. At the same time, the test in itself does not stop scientists who have conflicts of interest and fail to disclose all sources of income. Nor does it stop scientists who fake or exaggerate data. And, there has been an unintended consequence: the Daubert test has erected a host of practical obstacles for mold victims trying to prove personal injury. Here are the problems.
On the scientific side, unlike allergies, there is no way to test for Stachybotrys in the body, nor for poisoning after it has left the body. And, unless the victim has recently had a comprehensive medical exam, physicians cannot verify that any physical change has occurred—especially if a victim has been exposed intermittently over a long period of time. And on the practical side, victims who have become sick are most likely focused on recovery, and are not at that point thinking about filing mold claims. Frequently they do not become aware that mold was the cause until well after the actual exposure and after the environment has been altered or cleaned. By that time, it is too late to commission the required tests, and also too late for scientists and physicians to verify the condition of the environment, and of the person’s body, at time of exposure.
Then too, it is becoming nearly impossible to find physicians willing to testify in court, because medical liability insurers usually prohibit testifying (or sometimes even reviewing cases) on behalf of a plaintiff. Also, many hospitals require doctors to sign contracts prohibiting them from testifying on behalf of plaintiffs, and even some colleges threaten to revoke certification if they disagree with an expert’s opinion.[viii][viii] Testimony from a victim’s neighbors, acquaintances, friends, contractors, and family may be more directly relevant to a case than testimony from scientists. But they do not meet the Daubert test.
PART I: MOLD
It is generally known that many molds can produce allergens that affect up to 20 to 30 percent of the population. Mayo Clinic researchers have identified mold as the leading cause of most chronic sinus infections (a condition that affects over 37 million people in the U.S.).[ix][ix] According to warnings from the CDC, certain individuals with chronic respiratory disease, such as chronic obstructive pulmonary disorder or asthma, may experience difficulty breathing in the presence of molds. In addition to allergies and other illnesses that target people with pre-existing conditions, some molds can also produce infectious toxins, which can affect everyone, depending on the length of exposure and other conditions. According to the Mayo Clinic researchers, sinus infections do not come from allergies but from responses to fungus experienced by otherwise normal, healthy people. Most of the controversy about mold’s affect on health has focused on whether some molds can harm people who are not already allergic, and if so, if they can be seriously harmed.
The term “toxic mold” is often used to describe the more threatening types of molds. However, it should be understood that molds themselves are not toxic. Instead they can nurture secondary metabolites that produce mycotoxins, which then can become airborne. Common ailments, such as many flu-like symptoms, usually can be treated and reduced after people leave the tainted environment. However, some symptoms can become permanent in the form of weakened immune systems, possibly brain damage, and damage to the pulmonary system, memory, eyesight, and hearing.
Mold can grow between the walls of a home when water leaks in through windows, roof lines, or from plumbing failures. CDC information suggests that molds will grow anywhere indoors where there is moisture. Microscopic mold spores can quickly become airborne and travel throughout air conditioning and heating systems. A mold-infested home creates a potentially lethal environment for anyone. Sometimes the only method to rid a structure of the more extreme toxic molds is with a bulldozer and trucks to haul off the debris. The most common indoor molds are Cladosporium, Penicillium, Aspergillus, and Alternaria. Accurate information about how often Stachybotrys chartarum (or Stachybotrys atra) is found in buildings and homes is not available, but it is thought to be a rare occurrence.
There are many types of mold, only a few of which are harmful to humans.
Aspergillus, Stachybotrys Chartarum, and Chaetomium
Aspergillus is a genus of mold often found within indoor environments, which can become dangerous to some people. The genus includes over 150 species, only a few of which can cause an illness in humans and animals. Most people are naturally immune, but when this illness occurs, it takes several forms, ranging from “allergy-type” illnesses to life-threatening generalized infections. Some believe that Aspergillus molds can cause cancer, although skeptics dispute it. The severity of the disease inside the human body is determined by various factors, but one of the most important is the state of a person’s immune system.
The most dangerous mold strains are: Stachybotrys and Chaetomium, both of which produce mycotoxins, which can lead to disease in otherwise healthy individuals. Certain people are especially vulnerable to minor and temporary allergic reactions from non-toxic mold, but anyone who has been exposed to either of these toxic molds can experience myriad symptoms and illnesses, including skin problems, chronic fatigue, respiratory and heart problems, nose bleeding, and bronchitis. While disputed, some authors believe it can also lead to learning disabilities, mental deficiencies, cancer, multiple sclerosis, lupus, fibromyalgia, rheumatoid arthritis, and more. Stachybotrys chartarum (atra), which occurs widely in North America, requires water soaked cellulose (wood, paper, and cotton products) to grow. While wet it looks black and slimy, perhaps with white edges; when dry it looks less shiny.[x][x] Bob Krell, chief executive of IAQ Technologies, a Syracuse indoor air quality specialty company, says that although mold spores from roughly 100,000 strains are everywhere, finding Stachybotrys indoors is unusual.[xi][xi] This is because it is basically a water-loving mold, and it needs a lot of water. But once inside, the mycotoxins it releases can be inhaled and result in the illnesses mentioned.
Adverse Health Effects Commonly Associated With Various Types of Mold
According to a statement issued by the California Department of Health, toxic effects from Stachybotrys were first reported in Europe, where horses, sheep and cattle suffered fatal hemorrhagic disorders following ingestion.[xii][xii] Human occupational exposures to contaminated straw or hay resulted in nasal and tracheal bleeding, skin irritation and alterations in white blood cell counts.[xiii][xiii] The first U.S. case of Stachybotrys-associated health effects from inhalation exposure was reported in a suburban Chicago family.[xiv][xiv] The fungus had contaminated the ventilation system and ceilings of the house. Health effects reported by the family included chronic recurring cold and flu-like symptoms, sore throat, diarrhea, headache, fatigue, dermatitis, intermittent focal alopecia and generalized malaise. Workers who cleaned and removed contaminated material from this house also experienced skin irritation and respiratory symptoms. After Stachybotrys contamination was removed, the house was reoccupied and residents reported no recurrence of clinical symptoms.
Stachybotrys was found in a water-damaged office building in New York City. A small case-control study showed workers exposed to the fungus were at statistically significant higher risk for nonspecified disorders of the lower airways, eyes and skin; fevers and flu-like symptoms; and chronic fatigue.[xv][xv] Another recent report describes identification of 10 likely or possible cases of building-related asthma in a courthouse contaminated with Stachybotrys and Aspergillus species.[xvi][xvi] Self-reported symptoms among co-workers included fever, headache, rhinitis, coughing, dyspnea and chest tightness. Chest radiographs were negative and Stachybotrys-specific serology was uninformative.
A wide array of symptoms are known to be, or suspected to be, associated with exposure to various types of fungi. They include the following:
Respiratory Distress; Flu Symptoms, including Digestive System-Diarrhea; Nausea and Vomiting; Recurring Colds, Chronic Coughing, Runny Nose, (From Sinus Cavities), and Nose Bleeds; Choking, Spitting-Up Mucous, Coughing-up Blood, Rhinitis, and Sinusitis; Difficulty Swallowing, Asthmatic Signs, and Allergies.
Breathing Difficulties; Tightness of the Chest; Lung Congestion; Elevated Blood Pressure; Heart Palpitations; Heart Attack.
HeadachesAnxiety; Chronic Fatigue; Insomnia and Other Sleep Disorders; Memory Loss/Forgetfulness/Brain Fog; Bladder or Kidney Problems; Joint Pains, and/or Swelling; Cancer; Death in Severe Cases.
Emotional Distress, Stress, and Heart-Related Problems
Stress and emotional distress can be directly caused by mold, or indirectly caused by trauma related to coping with it. Skeptics tend to deny that emotional distress has any connection with mold, sloughing it off it as “psycho-social” in origin. One article, for example, maintains that a “sick building syndrome” outbreak in a manufacturing plant was actually due to “somatic conditions characterized by anxiety and depression,” the implication being that they are not relevant to air quality. However, stress can exacerbate physical conditions and directly or indirectly affect the heart by releasing fatty acids and glucose into the bloodstream, which in turn can become deposited on arterial walls and restrict blood flow and produce hypertension and respiratory problems; it also can contribute to coronary related symptoms.[xvii][xvii] Courts allow emotional damages under restricted conditions, for example if it can be shown that stress pushes the plaintiff into the zone of danger for physical harm. Studies published in the New England Journal of Medicine indicate that chest pains can be caused by inflammation of the sac surrounding the heart (pericaditlis) associated with viral infection.[xviii][xviii] Mold, and in particular Stachybotrys, is thought to be one source of congestive infection. In addition, emotional stress can independently contribute to chest pain by precipitating severe reversible left ventricular dysfunction, even in patients without coronary disease (myocardial stunning). This condition does not necessarily produce heart failure. Stress cardiomyopathy is a related condition which, unlike heart attacks, involves no blood clot in a coronary artery that cuts off circulation. Patients can recover fully without lasting damage to the heart muscles. John Hopkins University doctors say exaggerated sympathetic stimulation is probably central to the cause of this syndrome. Intense grief, fear, anger or shock can lead to a temporary weakening of the heart which affects the heart’s ability to pump blood.
Myriad studies from a variety of sources, ranging from respected universities and research centers to the military and agricultural environments, have discovered that significant health problems can readily arise from the inhalation of elevated levels of fungal spores and toxins. Laboratory studies (both of animals and at the cellular level) provide supporting evidence for direct toxicity of fungal spores and mycotoxins in mammalian lungs. A health study by the Finnish Institute of Occupational Health links 35% of newly acquired asthma in healthy adults to workplace mold exposure.[xix][xix] A European Community respiratory health survey in 2002 reported that asthma patients experience more significant asthma symptoms after they become sensitized to molds such as Alternaria and Cladosporium species.[xx][xx]
A compilation of 18 current, scientific, peer reviewed papers presented in 2003 summarizes the preliminary conclusions from studies of several hundred patients. The book, addresses the question, are illnesses associated with exposures to indoor mold growth real, or the results of a conspiracy fueled by media hype and greedy lawyers? Evidence is presented for severe neurobehavioral impairment, nasal sinus and lung dysfunctions, and immunological disturbance.[xxi][xxi] The evidence shows that many mold-exposed people are indeed sick, with significant brain function impairment. The investigations are based on measurements of single patients and groups, studied systematically. Physiological functions and brain scans were abnormal. Mechanisms of mold damage to brain cells resemble those for Gulf War Syndrome, chemical intolerance, and exposure to chlorine, ammonia, or hydrogen sulfide gases. The book warns that because exposures are invariably to mixtures of molds, attempts to define exposure in terms of specific molds and toxins, or by searching for biomarkers in body fluids, are necessarily inconclusive.
In May, 2004, The Institute of Medicine (IOM) issued a report that concludes various types of studies show that microbial toxins associated with mold can cause both allergic and non-allergic reactions in otherwise healthy people.[xxii][xxii] Well documented adverse affects mentioned in the report include upper-respiratory tract symptoms, cough, wheeze, and asthma symptoms. Other possible affects include lower-respiratory illnesses, shortness of breath, and asthma development. The report questions associations with neurological problems, fevers, fatigue, gastrointestinal symptoms, pulmonary hemorrhage in infants, and cancer. The IOM report cites a 1994 Harvard University School of Public Health study of 10, 000 homes in the United States and Canada which found that mold was associated with a 50% to 100% increase in respiratory problems for the residents of water- and mold-damaged homes. Chronic sinusitis, a condition that affects about 37 million people in the United States, is apparently caused by an immune response to mold and other fungus.
Research doctors at the Mayo Clinic conducted a study of 210 patients with chronic sinus infections and found that most had allergic reaction to mold (fungal sinusitis). Before the Mayo Clinic study, the prevailing medical opinion had been that mold accounted for only 6 or 7% of all chronic sinusitis.[xxiii][xxiii] The Mayo Clinic work is the first to provide data for the role of airborne fungi in chronic rhinosinusitis and to show that several immune system branches appear to collaborate in response to the fungi — resulting in an abnormally enhanced response in otherwise healthy people that causes troublesome inflammation and congestion. The research team’s data show that specific cells in 90 percent of chronic rhinosinusitis patients produce an enhanced immune-system response to one fungus in particular, Alternaria. Another kind of common fungus, Cladosporium, also provoked an abnormally enhanced immune response.
A Florida study concluded that people’s immune system changed with regular exposure to toxic mold even at low levels. The study involved just one square foot of mold on a 100 square foot wall.[xxiv][xxiv] K. H. Kilburn, University of Southern California, Keck School of Medicine, evaluated sixty-five consecutive outpatients exposed to mold in their respective homes and compared them with 202 community subjects who had no known mold or chemical exposures.[xxv][xxv] The author concluded that indoor mold exposures were associated with neurobehavioral and pulmonary impairments that likely resulted from the presence of mycotoxins, such as trichothecenes. Balance, choice reaction time, color discrimination, blink reflex, visual fields, grip, hearing, problem-solving, verbal recall, perceptual motor speed, and memory were measured. Medical histories, mood states, and symptom frequencies were recorded with checklists, and spirometry was used to measure various pulmonary volumes and flows. Neurobehavioral comparisons were made after individual measurements were adjusted for age, educational attainment, and sex. Significant differences between groups were assessed by analysis of variance. The mold-exposed group exhibited decreased function for balance, reaction time, blink-reflex latency, color discrimination, visual fields, and grip, compared with referents. The exposed group’s scores were reduced for the following tests: digit-symbol substitution, peg placement, trail making, verbal recall, and picture completion. Twenty-one of 26 functions tested were abnormal. Airway obstructions were found, and vital capacities were reduced. Mood state scores and symptom frequencies were elevated.
In Germany, research by The World Health Organization finds prostate cancer, breast cancer, and other cancers increasing due to mold-related problems. Mold is the number one health problem identified, with one in every three persons affected; and one in ten of those so affected reportedly have a severe problem. At the University of Texas M.D. Anderson Cancer Center, approximately 15-20% of patients with leukemia die of fungal leukemia caused most frequently by the species Aspergillus.[xxvi][xxvi] Of patients with leukemia who have undergone allogenic bone marrow or stem cell transplantation, 15-30% have died because of refractory fungal infections. In recent years, comparative risk studies performed by EPA and its Science Advisory Board (SAB) have consistently ranked indoor air pollution among the top five environmental risks to public health.
A physician, Dr. Michael Gray, found a range of adverse symptoms among 70 percent of the 350 patients he studied who had been exposed to toxigenic molds and other compounds.[xxvii][xxvii] It was concluded that mycotoxins stimulate immune reactions and also can adversely affect mobility and cognitive functions. At least some toxins are small enough to enter the respiratory system. Ann Davidoff found no evidence that reactions to mold can be explained by psychosomatic factors.[xxviii][xxviii]
On September 2, 2004 Richie C. Shoemaker, M.D., testified before congress about the health effects of mold. He is a medical practitioner who also conducts research for The Center for Research on Chronic Biotoxin Associated Illness (CRBAI). He said, in part:
Statements made by authoritative groups such as the Centers for Disease Control and Prevention (CDC) and Institute of Medicine (IOM) that “exposure to mold illness has not been shown to cause chronic health effects beyond respiratory illness.” They are completely wrong…We have the hard scientific data on causation of illness, showing a direct connection between exposure to biotoxic mold in buildings and subsequent acquisition of illness.”[xxix][xxix]
The “Mold-Is-Benign” Advocates
These authoritative sources and many other studies from reputable sources frequently document negative health consequences of mold. Yet, as already shown, some spokespersons in authoritative scientific-, public-, and business-related positions flatly deny that mold is a serious health threat. At most, some mold advocates reluctantly acknowledge that exposure to mold may sometimes cause runny noses, itchy eyes, scratchy throats, and other allergic symptoms, but—they usually hasten to add—only in already highly susceptible people.
One of the most outspoken naysayers is, ironically, a public agency that oversees the nation’s health, The U.S. Centers for Disease Control. It has concluded that, “There are very few case reports that toxic molds… inside homes can cause unique or rare health conditions such as pulmonary hemorrhage or memory loss. These case reports are rare, and a causal link between the presence of the toxic mold and these conditions has not been proven.” While acknowledging that some individuals can be seriously affected, the agency off-handedly depreciates such cases to the category, “rare.” Note that only two ailments are mentioned in the advisory; but they are used to justify the over blown generalization that there is no proof that mold causes serious harm. If the CDD has hard evidence about other serious conditions not affected by mold, it should identify them. If not, it should clearly limit its conclusions to the two listed.
Jumping on the band wagon, Dallas attorney, Beth Bradley, dogmatically asserts that there is “not a lot of hard evidence connecting mold” to illnesses. She adds, “We are just now starting to see the other side of the story in these cases.”[xxx][xxx] What is the “other side?” According to her, it includes what she calls the “false positives” for Stachybotrys from improper testing, unscrupulous remediation contractors, and mainly, inflated repairs that drive up insurance costs.
Quade R. Stahl, Ph. D., director of the Indoor Air Quality division at the Texas Department of Health disparages the available anecdotal evidence, calls for more data to prove a positive connection, and cautions that the collection of sufficient data will be a “slow and tedious process that is not going to happen next year.”[xxxi][xxxi] According to the Texas Medical Association’s Council on Scientific Affairs, “burgeoning litigation on Stachybotrys in homes has far outrun the available science.” It issued a reassuring report advising that while mold can cause reactions in people with allergies and asthma, there’s no evidence that it causes other health problems or aggravates other existing health conditions.
In his Washington Post, article, “It’s Everywhere,” Christopher Wanjek quotes sources insisting that mold is common and therefore not a big deal.”[xxxii][xxxii] One source is quoted as saying, “For most, mold is a mostly ignored part of their lives. For some with mold allergies, the smell can cause nasal allergy or even asthma symptoms. Yet what is increasingly clear is that their mold related illness has nothing to do with toxic substances produced by molds.” Organizations that stand to lose from mold claims are among the prominent doubters. They include especially insurance companies, the National Home Builders Association, and the U.S. Chamber of Commerce, all of which have disseminated often unsubstantiated assertions disputing the effects of mold. Because they reflect self-interested biases of their constituencies, their statements deserve to be met with intense skepticism.
The U.S. Chamber of Commerce is a federation of businesses that include insurance companies and others that are most likely to be sued for mold-related problems. In 2003 it issued a statement lauding findings from the two previously mentioned papers it sponsored denying scientific links between mold and health problems. The Chamber’s statement mentions billions of dollars in mold claims paid by the insurance industry.[xxxiii][xxxiii] The National Association of Home Builders and its subsidiaries also downplay the health effects of mold, even while disseminating information about how to prevent, detect, and eradicate it. The Dallas chapter’s web site, for example, maintains that mold is everywhere in our environment, and people are exposed to it every day.[xxxiv][xxxiv] While conceding that people with weakened immune systems may be more vulnerable, healthy individuals, it asserts, are usually not vulnerable to infections from airborne exposure to mold. The website also maintains that:
“Currently, to our knowledge, there are no authoritative studies establishing a reliable, scientific connection between mold and the more serious illnesses that are being alleged…According to respected scientific bodies like the Environmental Protection Agency and Centers for Disease Control, among others, there is very little scientific evidence linking mold with serious human illness, particularly considering the low levels of exposure in most homes.”
Some state health agencies have also been reluctant to take any position that might upset special interests. The following statement from the California Department of Health Services is illustrative:[xxxv][xxxv]
“The demonstration of mold-specific antibodies alone is generally considered insufficient to prove that health effects reported by individuals in moisture-damaged buildings are caused by mold exposure. Symptoms associated with mold exposure are nonspecific and vary greatly with individual susceptibility. There are currently no validated biomarkers of exposure to specific indoor fungi or their toxins. S. chartarum serology tests have no clinical application at this time. They cannot be used to imply the presence of S. chartarum within a home or workplace environment, nor can they be used to prove patient exposure to this specific mold or its toxins.
PART II: MOLD, MYTHS, AND SCIENCE
To be sure, research on mold has not yet yielded conclusive answers about its full effects. Still, the preponderance of findings seems to suggest, and often demonstrate, that mold is harmful. So, why are some mold advocates so resolutely convinced that mold has not been proven harmful? It is tempting to blame their connections with (or pressure from) groups threatened by the information. However, that is too simple. Another important part of the answer is misunderstanding of the scientific method. Both explanations will be considered, along with a series of commonly held myths about scientific research in this area.
Myth: Science Has Proven Mold Harmless
Consider first the element of bias. Some mold advocates simply want to believe that mold causes no serious illnesses. The doctrine is flawed on five counts.
First, only a few serious medical problems thought to be associated with mold have as yet been systematically studied. Negative findings pertaining to only a few illnesses obviously do not mean that molds have no serious effects. Even if, as some maintain, the evidence is equivocal regarding brain damage, memory loss, lung hemorrhage, and cancer, other candidates for serious illnesses have not yet been systematically studied. It is unfair to penalize a mold victim for voids in scientific research—especially since so much research already indicates that toxic mold is associated with a very wide range of respiratory, pulmonary, cognitive, and behavioral ailments.
Second, a health threat should not have to cause permanent injury or death in order to be counted as a serious. The EPA is too quick to brush aside allergic and irritant types of symptoms, which it acknowledges are caused by mold. Colds and sinus congestion are real physical ailments, and they can potentially weaken a person’s body and lead to more serious health problems. What has gotten lost in disputes over catastrophic problems like memory loss and cancer is that mold unquestionably causes daunting respiratory and pulmonary ailments, including asthma, which involve millions of people if not nearly all people. Any ailment potentially can develop into a serious condition, including for example, damage to the immune system. No amount of damage to an individual’s health is inconsequential. A person’s right to well being should not be compromised on the grounds that his health was only hurt a little.
Third, mold can be a contributory or secondary cause of illness. Acknowledging that superficial fungal infections of the skin and mucosal surfaces are common among most people, Harden and his co-authors belittle risks associated with mold on the grounds that it only “exacerbate[s] existing asthmatic conditions.”[i][xxxvi] So, if mold only “exacerbates” an illness, are we to believe that it doesn’t count?
Fourth, critics say mold is not harmful because it doesn’t harm everyone. Even if that were true, a lot of people are being subjected to substantial risk. Harden and his co-authors estimate that at least 30% of people are “atopic” and 20% are affected by allergies that can, in some cases, cause severe congestion, breathing difficulties, and even death. Ten percent, they estimate, have several allergies, which would supposedly compound their risks. Given a U.S. population of 300 million individuals, a staggering 60 million are at risk from allergies due to mold, and a third of them are especially susceptible. Perhaps they represent a mere minority to the mold advocates, but they deserve more than smug complacency from authoritative scientists, health officials, and the courts.-
Fifth, if nothing else, the evidence indicates that it is risky to live with mold. Being exposed to a health risk should count for something. More will be said about the risk factor later.
Myth: Only Laboratory Experiments Can Produce Reliable Evidence
Some mold advocates are proffering uninformed criticisms of mold-study methodologies as a pretext for discounting evidence they dislike. In particular, they deprecate any evidence that does not meet the rigid standards of laboratory experiments. In fact, scientific knowledge accumulates from many types of research strategies. Mold-health connections that have been demonstrated with these other methodologies cannot be justifiably set aside. The most prevalent methodologies are illustrated below. It should be noted, however, that the studies were selected in order to illustrate diverse research approaches, not as exemplary research.
The laboratory experiment is the most exulted form of scientific research. A group of subjects is selected on the basis of specific criteria and sorted into at least two groups, called the experimental and control groups. The experimental group is subjected to a treatment, and that outcome is then compared to the control group, which has not received the treatment. In a laboratory, the scientist can select cases on the basis of well defined criteria and maintain control over the relevant conditions and variables. However, there are tradeoffs. First, it should be recognized that in practice laboratory subjects often are not selected through random procedures. Often, probably typically, they are included because of their availability: for example, studies of leukemia patients who happen to be in a particular hospital or city. In many cases, a subject will be deliberately selected (not selected randomly) and then matched with similar subjects. Second, artificial laboratory conditions usually do not match conditions experienced in the real world, and in any case, cannot be easily extrapolated to human beings. A fully controlled mold experiment using human beings would require the experimenter to randomly select individuals from the general population, deliberately expose some of them to various doses of toxic mold, and withhold medical service long enough to observe the effects. Obviously, this research strategy has limited utility for human subjects.
Instead, mice, rabbits, and other animals have been subjected to toxins in order to study physical reactions. In one study, toxin-containing spores of Stachybotrys atra were administered to the respiratory organs of mice. It caused severe hemorrhages and lung inflammation.[ii][xxxvii] Other rodent studies have administered varying amounts of toxin to observe symptoms at different dosages. Some scientists maintain that the smallest doses given to mice match what is found in actual houses, and such dosages could not hurt people. But who knows? A 2006 study by Michigan State University researchers in the Center for Integrative Toxicology found that certain toxins produced by black mold are capable of killing nerve cells in mice, cells essential for the sense of smell that are located in the nasal passages.[iii][xxxviii] In addition, mice that inhaled these fungal toxins developed inflammation of the nasal passages (rhinitis). This is the first animal study to show that a toxin derived from the spores of black mold cause significant damage in the nose and the frontal part of the brain involved in olfaction. However, of course the researchers could not say whether their findings on mice can be extrapolated to human beings.
Controlled experiments can be approximated with quasi-experimental designs by using naturally occurring groups or available “opportunity samples.” Individuals are identified who possess comparable personal and environmental characteristics and then compared on some variable, such as degree of exposure (under similar conditions) to a given type of mold. It is, however, difficult to find individuals with comparable medical, demographic, and life-style backgrounds, as is controlling for identical mold conditions and accurately measuring levels of exposure. As mentioned, a CDC panel criticized researchers for misconstruing results from a matched-case control design used to investigate some infants with bleeding lungs.[iv][xxxix]
However, quasi-experimental designs have been fruitful. One was used to evaluate whether exposures to moisture and molds are associated with respiratory manifestations in school children. Two schools were studied. One had moisture problems (index school), while the other, which had fewer of these problems, was used as the control school. The prevalence of asthma was similar in both schools. The index school reported more respiratory infections, repeated wheezing, and prolonged coughing. Lower respiratory tract infections, emergency visits, and need for antibiotic courses were also more common in children from the index school.[v][xl] The study has some obvious deficiencies. For one, no two schools are identical in all respects, and for another, the global variable, “moisture problems” is not a precise measure. However, the differences seem large enough to lend support a conjecture that moisture was probably having an effect. A study that analyzes only a few cases, like this one, is called a “comparative case study.” This type of design, which has been profitably used in the social and behavioral sciences, because it allows the research to consider a wide range of variables under extreme conditions.
Quasi-experiments are sometimes piggy-backed on survey research, a method widely used in the social and behavioral sciences. Several surveys have shown relationships between mold and adverse medical symptoms. One example comes from a paper describing employees from a school that had an annex with a long history of water damage and documented infestations of Penicillium, Aspergillus, and Cladosporium.[vi][xli] Employees responded to a questionnaire probing symptoms associated with the so-called sick building syndrome. Respondents were then sorted into three groups according to hours spent in the annex each week. Analysis revealed that as time spent in the annex increased, there were positive trends for headache, fever, shivering or a flue-like feeling, tiredness, nausea, and sleeping difficulties. This must be classified as a case study whose findings are limited to a particular setting, which cannot be generalized to a known universe. Still, while this type of study cannot prove causation, it can make a useful contribution as a small component of a larger body of research showing adverse effects from various types of molds.
Surveys of respiratory problems among workers in office buildings were conducted by a division of the esteemed Lawrence Berkeley National Laboratory, in collaboration with and the California Department of Health Services. The studies were supported by The National Academy of Sciences. Analysis of data from 80 office buildings revealed that increases in lower respiratory and mucous membrane symptoms were linked to particularly high airborne concentrations of molds and bacteria.[vii][xlii] It was concluded that there is robust scientific evidence of an association between selected respiratory health effects and building dampness or visible mold. Asthma was exacerbated in sensitized individuals, as might be expected, but in addition, otherwise healthy individuals exhibited cough, wheeze, and upper-respiratory symptoms.
Another survey studied occupants working inside a large, modern office building, who reported unexplained illnesses. They included: eye, nose, and throat mucous membrane irritation; rashes; respiratory symptoms; and profound, unexplained fatigue. Also, there were neurocognitive symptoms, such as difficulty concentrating and short-term memory impairment. No functional ventilation problems or chemical contamination were detected in a walk-through evaluation and basic air quality testing. An epidemiological survey of the building’s 700 occupants was then conducted, with an 86% response rate. There was an average case prevalence of health-related complaints of nearly 25%, evenly distributed among floors, and geographically distributed in a pattern which coincided with the location of ceiling-mounted boxes that distributed ventilated air to the occupied spaces. Re-inspection revealed previously undetected water-stains on 40% of the ceiling tiles located underneath these boxes throughout the building. Active growth of Stachybotrys chartarum (atra) and other fungi was detected on many of the damaged tiles. All water-damaged tiles were replaced and hot water valves were tightened. Occupants reported significant improvement of symptoms within weeks after these changes.[viii][xliii] The study clearly would have been more illuminating if (a) each complaint had been confirmed by clinical diagnosis, and (b) studied as a separate outcome. Still, the study plays a useful role when viewed as part of a larger body of research.
Still another survey used a random sample of 120 apartment buildings to study the effects of moisture and mold. The buildings, and two apartments from each, were “given a walk-through inspection,” and all the signs of moisture and mold were recorded on questionnaires and check lists used by civil engineers. In 60% of the apartments, signs of moisture damage could be observed, and 42% of the apartments were assessed to be in need of repair because of the moisture observations. A health questionnaire was sent to the occupants. It was found that respiratory symptoms (including cough, nocturnal cough and dyspnea, sore throat, hoarseness, rhinitis, nasal bleeding and impaired sense of smell) were significantly associated with the observations of moisture. When the exposure was defined as mold present or absent, the conclusions were similar.[ix][xliv] It should be noted, though, that the research relied on respondents to make their own diagnoses, and also the extent of moisture damage was not measured.
Longitudinal surveys have been used to follow the same individuals over time. According to one such study published in the peer-reviewed journal Environmental Health Perspectives, exposure to mold and dampness in homes as much as doubles the risk that children will develop asthma. [x][xlv] Researchers studied 1,984 Finnish children, aged one to seven years, over a six-year period using a baseline survey administered to parents in 1991 and 1997. It asked questions about the child’s health, parents’ health and education, and details of the child’s environment (including exposure to environmental tobacco smoke and presence of feathery or furry pets). About seven percent of the study population developed asthma during the study period. Children living in homes with mold odor during the initial study period were more than twice as likely to develop asthma in the following 6 years. Having a parent with a history of allergies increased susceptibility, but the presence of mold odor increased the health risk independent of parents’ medical histories. Again, it should be noted that this study is only suggestive, because it used an unmeasured subjective proxy, “mold odor.” Odor can occur at low levels of toxicity, and says nothing about the type or toxicity of mold involved.
In the forgoing study, children exposed to moisture or mold in their homes were also slightly more likely to be exposed to environmental tobacco smoke, to have feathery or furry pets, and to have parents with a lower education level. It is unfortunate that study did not use regression, analysis of variance, or other multi-variate statistics, which would have allowed researchers to weigh the relative importance of mold compared to these other factors. But other studies have used statistical controls. An example was reported by Finnish investigators who conducted a population-based incident case-control study to assess the effects of (a) indoor dampness and mold at work and at home on (b) development of asthma in adults. The results provided evidence of a relationship between workplace exposure to indoor molds and adult-onset asthma. During a 2.5-year period, the researchers recruited all new cases of asthma, and then randomly selected controls from a source population of adults 21-63 years old living in a local hospital district. The clinically diagnosed case series consisted of 521 adults with newly diagnosed asthma, while the control series included 932 adults without diagnosed asthma. The data were subjected to a logistic regression analysis to control other personal and environmental variables. With these other variables controlled, the risk of asthma was shown to be related to the presence of visible mold and/or mold odor in the workplace. However, it was not related to water damage or damp stains alone. The fraction of asthma attributable to workplace mold exposure was estimated to be 35% among the exposed.[xi][xlvi] The findings suggest that, in addition to aggravating existing asthma, mold causes it. Unfortunately, the study says nothing about the variable effects of different types of mold or its toxicity, or levels of exposure to it.
Individual Case Studies
Researchers have sometimes focused on individuals described in medical case files. One such study examined whether cognitive impairment was associated with exposure to Stachybotrys atra. [xii][xlvii] Twenty individual case files were examined using a standard symptom checklist. Results indicated that all of these individuals met at least one of the criteria for a cognitive impairment, and 13 of the 20 met at least three of the criteria. Findings suggested that exposure to toxigenic molds is associated with deficits in verbal memory, verbal learning, and attention/concentration. The sample also reported a high number of physical and behavioral symptoms. The authors correctly noted that a larger sample is needed, which would allow the researcher to group cases by type of mold or personal characteristics of the subjects.
Another study used 151 cases among a clinic population with verified abnormal indoor fungal exposure.[xiii][xlviii] Researchers analyzed self reported symptoms from a standardized health symptom questionnaire and laboratory data. It appeared that indoor air exposure to mycotoxin-producing and allergen-producing fungi results in a high frequency of health complaints. The authors concluded that removal from fungal exposure and symptomatic treatment generally results in noticeable improvement of most patients. Of course, self-reported symptoms may not provide a good estimate of actual diseases.
Analyzing similarities among studies generated under diverse conditions and methods allows a researcher to identify prevailing patterns, and it also increases confidence that outcomes are not dependent on particular samples or methodologies. However, literature reviews are also vulnerable to bias, since the researcher can select studies that support a particular point of view. An obviously biased example was reported by researchers who used MEDLINE and a literature database maintained by the National Institute for Occupational Safety and Health. [xiv][xlix] They identified thirteen articles addressing the presence of fungi and mycotoxins in buildings that purportedly had moisture problems. They chose to limit their discussion to only three articles they had already decided suffered from methodological flaws. One of the three was merely a description of five individuals with a variety of nonspecific symptoms. The second used undefined clinical diagnoses and epidemiological case definitions, making it difficult to interpret the reported symptoms and pulmonary function test results. And the third study only compared complaints from employees working in a problem building with complaints from workers in a building with no known problems (see above). Extrapolating from these three selected examples, the writers decided that a definitive link between health outcomes and mycotoxins has not yet been made. However, obviously, no three studies will provide either definitive answers or representative studies.
A more balanced literature review was conducted by several writers who also searched PubMed and other medical databases, as well as reading conference reports.[xv][l] They found that many studies link (a) exposure to damp or moldy indoor conditions to (b) increased incidence and/or severity of respiratory problems such as asthma, wheezing and rhinosinusitis. The review supported several hypotheses, including: Stachybotrys produces trichothecenes; mycotoxins can inhibit protein synthesis and induce hemorrhaging disorders; and indoor mold exposure can alter immunological factors and produce allergic reactions. The survey identified several studies that have shown that indoor mold exposure can alter: blood flow to the brain, autonomic nerve function, brain waves and concentration, attention, balance and memory. The survey’s authors conclude that even in healthy humans with an effective immune system, exposure to high levels of indoor mold can cause injury to, and dysfunction of, multiple organs and systems, including respiratory, hematological, immunological, and neurological systems. They speculate that failure to perform the appropriate objective evaluations on patients may account for the commonly held belief that indoor mold exposure poses no significant health risks to otherwise healthy humans.
Another review referenced more than 170 articles involving studies of more than 1600 patients. The writers concluded that exposure to high levels of indoor mold can cause injury to and dysfunction of multiple organs and systems, including respiratory, hematological, immunological, and neurological systems, in healthy humans with compete immune systems.[xvi][li] One cited study examined 48 heavily mold-exposed patients, the majority of whom reported muscle and/or joint pain, fatigue/weakness, neurocognitive dysfunction, sinusitis, headache, gastrointestinal problems, shortness of breath, and anxiety/depression/irritability. Over 40 percent reported vision problems, chest tightness, and insomnia. The authors also cited another study of 150 heavily indoor mold-exposed patients, which found that most experienced fatigue, rhinitis, and over 40 percent reported respiratory problems, memory loss, and other neuropsychiatric problems. These clinical reports suggest that there can be multisystem adverse effects of airborne mold.
It is tempting to scoff at anecdotal evidence because it is idiosyncratic and cannot be used to verify hypotheses. However, anecdotes illuminate key variables and can suggest hypotheses, as well as providing personal insight and intuitive understanding. The literature is filled with sad stories related by individuals who have experienced mold in homes, offices, and apartment buildings.[xvii][lii] One lady reports that two of her four children developed asthma after exposure to mold in their home. One began to have recurrent nose bleeds. A child born in the apartment had intermittent pulmonary and digestive problems, was hospitalized, and required intestinal surgery at one month of age. Since his birth, this mother has repeatedly visited physicians on a regular basis. Another writer complains that after filing mold insurance claims, the insurance company dropped her insurance, and she now fears that she will not be able to sell her home. Still another person describes her exhausting moves from one apartment unit to another as the owner tried to repair damaged apartments. And this man writes:
“July 1st I awoke sick, fatigued with achy joints etc. The odors became pungently noticeable and symptoms became severe. July 10th of 98, I called the Dept of Health. The first discovery of the mold began to be a future of 4 1/2 years of horror. I now live with a family, on DSHS, too sick to work, my lover gone, I lost my daughter and now have bad credit and huge debts. To our discovery we found that Art’s crawl space had a 1 to 2 inch thick carpet of Aspergillus 16×22. This large massive amount was a lethal bomb blasting, tearing and renting into every space of our lives. Its extreme levels seemed endless to contain, it chased us and our lives for 2 years straight without escape or breath.”
Richie C. Shoemaker, M.D., made several anecdotal references during his testimony to congress in 2004.[xviii][liii] For example:
“I invite you to go with me to nearby Prince Georges County, Maryland. Let us talk with the 55 police officers made ill by exposure to the fungal contamination in Oxon Hill Station or Clinton station….Go with me to Eastern Correctional Institution, a state prison in Somerset County, Maryland. Let us talk with Sue Donahue and the cohort of sickened workers who were forced to fight for their Worker’s Compensation benefits. While we are there, we’ll talk with Judge R. Patrick Hayman, who single-handedly forced the State of Maryland to close down the Somerset County District Courthouse because of the massive indoor growth of mold and sickness caused by Aspergillus, Chaetomium and Stachybotrys fungi, even as the toxin illness was literally blinding his right eye…. Consider listening to Melissa MacDonald, former counsel on intellectual property to the House Judiciary Committee who lost her job this year because of illness caused by fungi growing in this very Rayburn Building.”
Existing research on mold and illness can be treated as a “grand jury” to help determine whether further research on this issue is warranted. Unfortunately, many studies reported to date are methodologically flawed. One reason is that the cost of accurately measuring the pertinent variables can be prohibitive. Researchers are therefore often forced to settle for proxy measures and work with incomplete data sets. Nevertheless, when the body of research is taken as a whole, the consistency of findings lends credence to the proposition that there is a firm and consistent connection between toxic mold and a wide range of adverse health conditions.
PART III SCIENCE AND THE COURTS
Misconceptions about science are not limited to methodological issues. There are other widely shared myths that courts have adopted, and which (though not deliberately so) are unfairly penalizing mold victims. In general, the standards of causation that courts are applying under conditions of uncertainty are, intentionally or not, unfairly penalizing mold victims. Under legal rules, the victim has the burden of proof to establish causation even when it is impossible to obtain the necessary scientific evidence.
Myth: Plaintiffs Must Provide Scientific Evidence Proving Harm
Whether widespread or not, some courts seem to act as though science provides definitive answers to practical problems. Buying into that myth, at least a few courts are requiring plaintiffs to provide persuasive scientific proof that their symptoms were caused by mold. This high standard proof is more appropriate for some criminal actions, such as murder or burglary, and in any case, it is nearly impossible to meet in mold cases. The standard of proof used in tort cases, namely that a claim must be more likely true than not, is a more reasonable scientific standard, one more compatible with the actual capacity of science. But courts, driven by tradition, are often not disposed to apply that standard, or to allow a mold victim to recover for increased risk of future harm. Of course, this does not imply a conspiracy against mold victims. They are driven by tradition, even when it adversely affects victims.
There are three types of cause to be considered. Proximate cause refers to a condition which in ordinary natural sequence produces a specific result. It is an act which sets off a natural and continuous sequence of events that produces injury. Without the act, no injury would have resulted. To meet this standard, it must be that mold was present in a given situation and there were no other intervening conditions that could explain the harmful outcome. General cause can be shown through research linking a specific type of mold to a specific ailment. Specific cause can be shown only by demonstrating that a given mold entered an individual’s body in harmful dosages and over a sufficient time to cause the ailment. That is at the very least difficult to prove, and in most cases it is impossible to prove. No one seems to argue that the presence of mold is in itself sufficient to show that it caused a symptom. However, it is unreasonable to demand, as some courts do, that the risk of harm to exposed populations must be as much as double the risk to unexposed populations. Mold advocates maintain that since most substances can be harmful at high dosages, it must be shown that: (a) the exposure dose is large enough, and occurred for a sufficient duration, to cause the injury; (b) poisonous spores have entered the air (or have been ingested); (c) they have in fact entered the body and reached the site of injury; and (d) they then have been absorbed and metabolized.
That is a big order. Truth is, all of that is impossible. It is no minor consideration that there is no reliable blood test for Stachybotrys and other malicious forms of mold. In their paper for the Chamber of Commerce, staunch mold advocates Hutchinson and Powell gleefully observe: [i][liv]
“The initial problem is that science has established no standard or threshold level for toxicity of mold spores of mycotoxins….And, even if such a level could be found, it would be virtually impossible to determine what amount is due to indoor mold growth versus ambient outdoor mold levels…Moreover, no procedure exists to test for the presence of mycotoxins in the air.”(page 33).
To clinch their point, the authors assert that the notion exposure can be postulated from symptoms has no validity in science or law. So in other words, they shrewdly advocate that proof in mold claims should be restricted exclusively to evidence from the very sciences that do not have the capacity to either prove or refute such claims. Accepting this ludicrous argument effectively emasculates any claimant and prohibits most mold litigation.
Consider the impact of using as the standard of proof the basic requirements for toxicity in fungal exposure, as set forth in the dubious paper written by Hardin and his co-authors.[ii][lv] First, there must be an actual presence of mycotoxins. These authors contend that even if Stachybotrys is present, it does not always produce mycotoxins. And if mycotoxins are present, they argue that toxicity requires concentrations far higher than are found in moldy homes; although odor, they believe, can occur at low concentrations. They note that when toxigenic molds have been grown on building materials, the amount of mycotoxin produced has been low or undetectable.
Comment A. They carefully avoid estimating how often mycotoxins are not actually produced. B. How can they possibly know the actual incidence of various levels of mold, and exposures to it, in homes in the absence of random samples of moldy houses? C. A mold victim’s first response is to dispose of, or clean up, the mold that is causing the illness, not to scientifically study the environment. How realistic is it that any claimant will be able to come up with mycotoxin production rates and concentrations at the time of exposure?Second, there must be a pathway of exposure, and in particular, there must be airborne particles to carry the toxin. According to these authors, most of what is known about mycotoxins comes from illnesses caused by eating them, which seems to suggest that air borne mold may be less lethal than indicated by research showing it can cause cancer or pulmonary disease when ingested. Stachybotrys is seen by the authors as an unlikely lung toxicant because it produces spores in slimy mass that are unable to become airborne. Wet spores, they maintain, are not easily disturbed without strong agitation or abrasion. Further, they say that mycotoxins do not readily escape into the air even when mold is inactive or dead. And, they add, airborne spores are 10 times too large to reach the lower respiratory tract in humans.
Comment B. These conclusions rely on opaque terms, such as “unlikely,” “not easily,” and “readily” that a plaintiff would have to precisely measure. It is not realistic to expect that an unsuspecting victim will have (or even could have) taken the trouble to measure levels of moisture in the mold, the number and size of spores, and his length of exposure to them. Sick victims are not likely to search out companies prepared to measure in a timely manner the amount of mold and its distribution throughout the environment. Anyway, the presence of air heating/air conditioning systems, and other conditions make a difference in how many spores enter a body, or how severely a person reacts to them. It is worth noting again that other researchers already cited have demonstrated that some spores do enter the air during the production cycle, and some are small enough to enter the respiration system.Third, the toxin must be inhaled in a dosage sufficient to cause toxicity. The authors insist that studies of micro organisms in indoor air are only “weakly correlated” with dry or itching eyes, nose or throat; tightness of the chest; and other breathing difficulties. Referencing a laboratory experiment, they speculate that for a person to absorb even the dose that caused no ill effects in rodents would require numbers of airborne spores vastly exceeding the numbers actually seen even in heavily mold-contaminated homes.
Comment C. To be credible, such a sweeping generalization must come from a stratified random sample of actual people, statistically controlling for appropriate medical, demographic, environmental, and life-style variables.
Myth: Science Provides Absolute Proof
One writer asserts that, “No scientific consensus exists at present on the health effects of mold…Most of the health effects are uncertain and unproven. And there are no standards for mold levels or consensus on risk.”[iii][lvi] But it is naïve to expect scientific consensus, and absurd to require it as a standard of proof. Controversy is inherent to science, because scientific conclusions are intrinsically based on probabilities, not absolutes. They will always be subject to dispute. Absolute proofs (of the type If A, then definitely B) are rare, if even possible. Scientific statements take the form, If A, then probably B. Because it deals in probabilities and is constantly searching for improved explanations, science thrives on controversy over how to reduce the magnitude of the known and unknown error. Because disagreement is ubiquitous, it should not be surprising that there is “not yet full scientific consensus” about mold’s affect on health, especially since concerted research on the topic is barely a decade old. What counts is not consensus but the preponderance of evidence. Most people understand this. It is significant that the same authors who scoff at the scientific evidence go on to warn, “Bottom line, living in a moldy house is not a good idea. We wouldn’t do it. Your customers shouldn’t live in moldy houses.”[iv][lvii]
Notwithstanding all of that, courts prefer, and often demand, unconditional proof that mold causes adverse health conditions. For example, a Texas trial judge invoked the previously described Dalbert test to dispute relationships between airborne toxic mold spores and adverse health effects. Several courts refuse to admit testimony from plaintiffs’ expert medical witnesses because of what they consider to be medical uncertainty about mold’s health risks. According to the National Law Journal, trial courts in Delaware, New York, Texas and a federal court in Arkansas have excluded expert testimony linking mold to various ailments. However, denying plaintiffs the right to use expert testimony is simply unrealistic. Indecisive results are not indications of junk science. They are an inherent aspect of science. But the other extreme, requiring plaintiffs to provide expert testimony, as courts are now doing, can also be unfair. One problem is that all an honest expert can do is cite probabilities associated with any particular piece of scientific evidence, which as noted, is not enough for many courts. Another problem arises when the plaintiff needs a physician to testify, since physicians risk having their insurance cancelled for testifying on behalf of a plaintiff. Given the uncertainties inherent in scientific knowledge, for every expert on one side of a controversy, there is another available to the opposing party able to pay for the testimony.
The bottom line is this: law and science are based on different forms of logic. Law is based on absolute logic; science is based on the logic of probabilities. There is a fundamental incompatibility between the probabilistic logic used in science and the logic of absolutes used in the law. Until courts acknowledge this contradiction, they will blindly continue demanding impossible information.
Myth: A Causal Explanation Must Account for Chemical Interactions at the Cellular Level
Courts around the country are denigrating any claim that can not account for all chemical links between exposure and outcomes. They have begun requiring attorneys to present sophisticated causal chains demonstrating (a) whether the plaintiff was in the presence of mold, and (b) if so, was in fact exposed to it, as reflected in blood tests (which do not exist), (c) was exposed for the (presently unknown) necessary period of time, and (d) exhibits clinically diagnosed symptoms consistent with the type of mold involved. In addition, the plaintiff must be able to prove that (e) the symptoms cannot be explained in any other way, and (f) the incurred loss can be quantified.[v][lviii] These stringent tests must inevitably be based in part at least on biochemistry. However, biochemistry cannot yet provide the necessary answers, and therefore should not be used as the only scientific basis of mold claims.
As already noted, biochemistry is not the only discipline with something to contribute to knowledge about mold-related claims. It is probably true that everything can ultimately be reduced to sub atomic particles, which some philosophers of science maintain holds the key to ultimate causes.[vi][lix] But reduction is not necessary. Philosophers of science have a saying: Just because it can be reduced does not mean it should be reduced. There is a hierarchy of respected scientific disciplines. Only a few of them reduce explanations to the chemical, cellular, or atomic levels. Explanatory models used in a wide range of scientific disciplines ( some branches of astronomy, computational biology, economics, and mathematical modeling to mention a few) rely on finding consistent correlations among higher-order variables. True, perhaps statistical correlations might not meet the strictest test of final causation. However, under carefully measured conditions, using control variables, they can be used to infer cause. As a simple illustration, suppose that 80,000 of 100,000 regular smokers with similar backgrounds and environments have developed lung cancer. Further suppose that the cancer disappears in 70,000 of them after they have stopped smoking for 10 years. Let’s say that this relationship holds up when relevant variables (e.g., demographics, medical history, life style, and the like) have been taken into account. Smoking can be inferred to be a probable cause, or at least a significant contributing cause, without needing to explain the chemical processes responsible at each step in each affected organ. Or, suppose that giving a particular medication to patients from diverse backgrounds and environments consistently stops or reverses an ailment. That medication can be considered a cure, even without more detailed chemical explanations.
The problem is that standards being used by some courts open the door to extremes—for example that every explanation must account for an entire causal chain of chemical interactions. While that standard may not necessarily be used, it does set an absurdly unobtainable hurdle that a lawyer can exploit. It may or may not occur frequently. But the possibility is there and it is intimateding.
Studies demonstrating consistent correlations between exposure to mold and resulting illnesses are no less valid because the underlying chemical interactions are unknown, or because valid tests of exposure and guidelines for admissible levels of mycotoxins are not yet available. It is not necessary to prove the exact relationship between a particular mold and biochemical processes related to it in order to demonstrate that mold is at least an important part of the explanation. The research to date has shown that Stachybotrys is significantly associated with many types of adverse health effects. Even if one were to grant that other variables (such as second-hand smoke or underlying genetic deficiencies might also be contributing factors), it has become readily apparent that mold is an important part of the equation. Thus, if several people living in a Stachybotrys-infected house acquire similar illnesses when in the house, and if their symptoms disappear when they leave, and then return when they come back, the pattern provides valid grounds for inferring probable cause, or contributing cause, even without accounting for chemical interactions going on within the body.
Anyway, requiring illness claims to be explained at the biochemical level is unrealistic given the limits of current technology. It may take decades to develop the tests need to establish causality at the chemical level with certainty. And even then, there will never be full consensus. Definitive studies are rare. If the courts are expecting undisputed data, driven by reductionistic causal models, they have a long wait ahead. In the meantime, the “body count” mounts. At some point, the courts will have to make decisions based on the overall weight of evidence. This is not an unreasonable requirement. Expecting mold victims to produce the biochemical chain is a standard not normally applied to other types of victims. Take as an example, an alleged smoke-inhalation victim involved in a house fire. Would it not usually be sufficient to show that he was close to the fire and that his recent symptoms are consistent with fire exposure? It may or may not be possible, or even necessary, to conclusively explain the underlying chemical processes, or even to rule out the remote possibility that another variable like smog was responsible. What is important is that the victim can demonstrate consistency between his malady and his relationship to the most likely cause.
Myth: The Health Risks Associated with Mold Are Inconsequential
Even though it is not always possible to definitively prove that mold causes a health problem, it remains a serious threat. Hutchinson and Powell complain that Americans are fixated on risk.[vii][lx] They should be. The existing evidence warrants extreme caution. Threats posed by mold constitute a legitimate concern because it has been demonstrated that some molds are at least capable of damaging a person’s health, even though that threat may not always materialize. The significance of risk from mold, apart from its actual consequences, becomes clear when you consider the scientific evidence relating to Stachybotrys. The argument in that case is that most people can rely on their immune system to fight off its worst effects. But it is ludicrous to deny that something is harmful only because its worst consequences are not always realized. What about this? Mold is a health risk. That fact is hardly inconsequential.
The only justification for living with mold is that it cannot adversely affect health. That has not been proven. What is the rationale for exposing people to the known chance of developing illnesses on the grounds that they were not stricken down? The burden of proof should be on those who say that mold is not a health threat, rather than on those who are exposed to probable risks associated with it. Since that cannot be guaranteed, potential victims should take action against the parties responsible for exposing them to probable and known risks. Two tests for harm must be recognized by the courts: whether mold victims can definitively prove they were hurt by mold, and whether they can show they were exposed to unnecessary risk.
Daubert exemplifies the law of unintended consequences. Prescribed as way to protect courts from sub-standard and fraudulent science, the test has tipped the scales decidedly against plaintiffs seeking to show they have been harmed by mold. And, probably for the most part other barriers the courts have inadvertently erected are equally benign. There is no evidence mal intent. The barriers are products of highly revered arcane rules that too often simply do not fit mold cases. Ask any officer of the court why courts routinely demand standards more stringent than preponderance of evidence in torts cases and they will probably tell you “that is just how it is.” Complain that plaintiffs are being required to establish causation when it is either scientifically impossible or too costly to do so, and they will glibly talk about the burden of proof. And, probably most members of the legal community would have no problem ruling against a plaintiff who has been living with obvious but un-fulfilled risks associated with mold when they themselves would not live with it.
That is how the law works, and that is how members of the legal community excuse themselves from responsibility for health risks to mold victims. However, pointing to legal traditions provides no answers. On the contrary, they are the problem. And, in this respect, the legal community is complicit in that problem. To be sure, the rules are there to protect innocent defendants, as it should be. However, the way courts are misusing science has stacked the deck against plaintiffs with legitimate grievances. The courts need to acknowledge that there is a problem and grapple with how to cope more fairly with the uncertainties of science.
The courts role as adjudicator of wildly contradictory scientific claims has become crucial. The “mold-is-benign” crowd complacently disparages the threat toxic molds pose to human health, even in the face of diverse evidence establishing associations with not only minor irritations but also more severe respiratory and pulmonary diseases, lung congestion, some grave illnesses, and even permanent damage. Whether or not it turns out that some serious ailments like cancer are caused by toxic mold, the preponderance of evidence confirms that it is not a trivial threat. True, some studies have been methodologically weak, and those sponsored by advocates of one kind or anther are suspect. Even so, findings have been fairly consistent irrespective of designs and methods used. And, in any case, rat experiments—no matter how well-executed—and unsubstantiated speculations about mold in hypothetical homes do not provide definitive conclusions about the actual threat to real individuals.
Even if it were true that mold is not a serious threat to “most” people, it would mean nothing to the susceptible individual who has become a victim of mold. And, it turns out that the so-called “minority” at risk add up to millions and millions of people. But beyond those who are already susceptible to allergic reactions, there are millions of people with healthy immune systems who some research documents are vulnerable to illnesses ranging from short-term to long term, from minor to catastrophic. The overblown claim that exposure to toxic mold in homes, schools, or workplaces has no adverse effect on otherwise healthy people is simply impossible to verify, and furthermore, is incredible.
Scientists like to distinguish molds that cause allergic reactions in predisposed individuals from more toxic molds capable of causing serious infections in almost anyone. Much of the mold controversy focuses on the latter. A previously discussed paper sponsored by The U.S. Chamber of Commerce claims that, because of its physical properties, Stachybotrys cannot do serious harm to human beings. The authors—who work with a controversial corporation that often testifies for insurance companies—carelessly commingle documented evidence based on rats with their own dubious extrapolations to humans, and other hypothetical conjectures. In their haste to slough off the 60 million immune-compromised individuals who are most vulnerable, they craftily exploit inexplicable terms like “some people,” and “rare, uncommon, and superficial” infections. Even when conceding that mold can adversely affect “predisposed” individuals, they use flawed logic: If someone gets sick, he or she must have been predisposed. Apologists are more interested in denying that mold can do real harm than in acknowledging its actual dangers. But the truth is that even short term illnesses that do not usually cause crippling reactions or death are indefensible. No one advocates living with toxic mold.
The conclusion that most healthy people cannot be seriously harmed by mold is rooted in shaky probabilities, fledgling technologies, and vast knowledge gaps. And, don’t forget the fallacies that mold advocates use to support their position, namely: Denial of a preponderance of evidence showing that mold causes, contributes to, and at least exacerbates potentially serious upper and lower respiratory symptoms. Willingness to minimize the health of millions of vulnerable people on the grounds that they represent a minority of the vast U.S. population.
- Dismissal of many ailments that, while not life-threatening, can make people sick for a period of time, or can develop into incapacitating illnesses.
- Eagerness to slough off the significance of some serious illnesses only because they have been reported infrequently. Disregard for unjustifiable risks borne by anyone who has been exposed to mold regardless of the immediate outcome.
- Smug disregard for any proof not based on obscure, even non-existent, chemical tests. Readiness to deny the validity of evidence from correlations among macro-level events.
In their efforts to police the boundary between respectable science and so-called “junk science,” the courts have sometimes lost sight of common sense. The Daubert rule has obstructed mold victims by setting standards of proof that not only are unreachable in themselves but are impossible to meet because most plaintiffs do not have the resources to commission the required research. Inability to describe so-called causal chains between mold exposure and illness has been a major issue in the courts, and at some seem to be unrealistically looking for certainties. But the fact is that tests showing detailed chemical interactions in the air and in human bodies are impractical given pertinent realities. It is impossible to reliably measure levels of mycotoxin in the blood stream with current technology, and anyway, it is usually not practical for sick individuals to obtain that kind of data. For one thing, victims often do not become aware that mold is causing their problems until after the exposure, and then they are likely to be more focused on recovering, removing or cleaning the mold than living with it while arranging for obscure tests. For another, physicians are afraid to testify for a plaintiff under threat of losing their insurance, hospital privileges, or even certification. Finally, for many plaintiffs the cost of hiring technical experts is prohibitive. Nevertheless, some courts callously discriminate against mold victims when they are unable to produce expert testimony.
Even granting that current technology is incapable of proving beyond doubt that mold is harmful, there is enough evidence demonstrating that it is at least a menacing health threat. It does not take expert witnesses and refined causal chains to show that all sorts of people become sick after they have been exposed to mold. If a threatening form of mold is located where occupants of a building can easily breathe it, and if occupants develop a clinically diagnosed disease linked to that particular type of mold, then the probability that their sickness resulted from exposure is high enough to satisfy the requirement that mold is more likely than not to be at least a contributing cause.
Mold advocates are recklessly calling research on mold “junk science” because it has not yet provided definitive answers. However, uncertainty is intrinsic to science. Much of the research showing that there is a high probability that mold is detrimental is coming from respected universities and research centers, which typically require peer reviews. Of course, it is always desirable to have more studies and larger, more representative samples using more sophisticated analytical techniques. But any deficiencies present in individual studies ultimately cancel out when the body of research is considered as a whole. That many different methods are being used is a plus; because results have been consistent independent of methodology.
There are still many anomalies puzzling scientists. For example, there is as yet no “signature disease” that can be linked to each specific type of mold, which rules it out as a “proximate cause.” A given type of mold, it appears, can have a variety of adverse affects on different individuals, perhaps depending on its potency, length of exposure to it, and the victim’s medical history, and biological tolerance and predispositions. Eventually perhaps some of the riddles will be solved, but perfectionists waiting for scientists to reach total consensus have a long wait ahead. That is not a realistic standard for any scientific discipline, especially in the early phases of research on a complex topic. But scientific conclusions are made every day without full consensus. The courts must decide which type of error to live with: the error of treating potentially dangerous mold as benign, or the error of treating potentially benign mold as dangerous. In either case, what counts is not consensus but the preponderance of evidence. It is fair to say that enough evidence has now accumulated to warrant the conclusion that anyone responsible for subjecting someone to toxic mold should be held accountable.
The mold wars will not end soon. Scientists are only partly to blame for that. The courts bear a major responsibility. By imposing a far-fetched burden on science, they have inflamed and unnecessarily perpetuated the mold wars. There is no doubt that toxic mold causes or contributes to the health problems of millions of victims, and at minimum it constitutes a genuine risk for anyone exposed to it. The courts are now obstructing mold victims by imposing implausible standards of scientific certainty, and other absurd myths about science. They need to adopt more realistic standards of proof.
This is a position paper intended to make a plausible argument on behalf of mold victims. Demonstrating precisely how particular legal rules may be impeding even handed justice in mold cases is a job for the legal community. Hopefully someone will accept the challenge.
Toxic tort is an injury caused by a toxic material or substance. Victims of toxic exposure can file a toxic tort personal injury lawsuit. Theoretically at least, plaintiffs in toxic tort cases do not need to prove their cases beyond reasonable doubt, as is needed in criminal cases. They instead need to prove only that their claims are more likely to be true than not. In practice, the standard seems to be much higher. In any event, if the court finds the injury is directly linked to exposure to a toxic substance, the victim and his family will be eligible for the following types of damages: Replacement of destroyed or damaged property, Medical costs, Emotional trauma/distress, Mental limitations or anguish, Pain and suffering, Permanent disability, Potential future income loss, Profit loss, loss of wages, and interest on money withheld. According to an independent insurance association, toxic mold lawsuits against building owners and managers, building product manufacturers, builders, architects, engineers, contractors and insurance carriers are beginning to rival construction-defect claims in their number and magnitude.
Examples of litigation
In April 1996, an Indian River, Florida, jury awarded Martin County $11.5 million against a construction manager and three surety companies. The county alleged that two buildings evacuated in December 1992 suffered from construction defects that resulted in leaks to the building’s exterior skin and problems with the air conditioning. Water intrusion and high humidity fostered the growth of toxic molds and mildew in the buildings. It is important to note that this jury verdict dealt with only property damage and did not include personal injury claims, which were the subjects of separate cases. In a personal injury claim related to the above case, an appellate court upheld expert testimony by two doctors, who suggested the existence of a health hazard stemming from the presence of toxic molds in two buildings. The court of appeal held that the county met its burden of proof under Frye v. U.S. (54 App. D.C. 46, 293 F. 1013 (D.C. Cir. (1923)), noting that both experts testified about numerous publications accepted by the scientific community that recognize the link between toxic mold exposure and adverse health problems. (Centex-Rooney Construction Company Co. v. Martin County, No. 96-2537, Fla. App., 4th Dist. (1998)).
The Delaware Supreme Court upheld a $1 million jury award to plaintiffs who alleged mold related problems because their landlord failed to repair leaks. This case recognized the use of “differential diagnosis” as acceptable expert methodology in a mold case. This is a process whereby a physician examines a patient, takes a medical history of the patient, conducts laboratory tests as indicated from the exam and history and considers and eliminates alternative causes of illness.
A verdict of $32 million was awarded by a Texas jury against an insurance carrier for acting in an unfair, deceptive, and fraudulent manner when evaluating the homeowner’s property damage claim. (Ballard v. Fire Insurance Exchange).
Polk County, Florida, recovered $47.8 million in settlements against various companies involved in the construction of the Polk County courthouse (including $35 million from the general contractors’ builder’s risk insurer).
A North Carolina motel owner was award $6.7 million for construction defects that resulted in water intrusion and mold accumulation.
A Sacramento, CA jury awarded $ 2. 7 million to a family that claimed to have suffered a toxic reaction to mold growing in its apartment (Mazza v. Shurtz, 2002).
Over one million dollars was awarded by The Delaware Supreme Court to two tenants after their landlord allegedly failed to fix water leaks and resulting mold growth (New Haverford Partnership v. Stroot, May 8, 2001).
A group of tenants in a New York City housing complex settled for over a million dollars for numerous mold-related lawsuits against building management. A suit for $20 million was filed by Ed McMahon holding his home insurer and several contractors responsible for illnesses suffered by him, his wife and their household staff and the death of his dog from a mold-related infection. A confidential settlement was reached.
In May 1998, the owners of a 7,000-square-foot custom home in Playa Del Rey sued the builder after the ceiling caved in as a result of roof leaks that occurred before they moved in. Stachybotrys was found in many locations in the house. The case settled for $900,000. (Confidential Report for Attorneys, CRA No. 10272, 1998 Issue, at pg. 12-54; Doe Homeowners v. Roe Builder.)
On October 3, 2000, a California jury ordered Allstate Insurance to pay a policyholder $18.5 million in a coverage dispute over mold in the plaintiff’s home in Placerville, California. The award included $500,000 in damages and $18 million in punitive damages. The trial judge reduced the award to $3 million. (Thomas Anderson v. Allstate Insurance Company)
Claiming that she was exposed to mold, Superior Court Judge Elisabeth Krant, sued the county for dangerous condition of public property, fraudulent concealment, battery, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence by construction defendants and continuing nuisance. (Elisabeth B. Krant v. County of Tulare, et al. No. 00-0190367, Calif. Super., Tulare Co.)
In February 1997, the owners of a new Malibu beachfront home recovered $1,353,000 for the home purchased from the defendant for $2.5 million. The husband complained of mild respiratory problems and headaches in response to exposure to mycotoxins released by Stachybotrys. The wife, who previously had been diagnosed with an immuno-compromised condition, suffered flu-like symptoms, sore throat, diarrhea, headaches, fatigue, dermatitis, and general malaise. Plaintiffs’ cost to repair home was $662,000. (Confidential Report for Attorneys, CRA No. 8795; 1997 Issue, pg. 10-53; Doe Homeowners v. Roe Seller)
In May 1999, a Simi Valley woman recovered $350,000 against her homeowners association for failure to repair and remediate chronic water damage to her condo and for her personal injuries suffered from exposure to toxic molds, including Stachybotrys. The plaintiff also contracted Meniere’s disease as a result of microbiological contamination of her unit. (Tri-Service Reference No. S99-09-19; Jan Hickenbottom v. Raquet Club Villa HOA, VCSC case no. SC 020 526)
In February 1998, three families in Alameda County, CA sued their homeowners association after leaky pipes caused toxic mold to grow in the crawl spaces of their condo units. The plaintiffs reported depression, anxiety, emotional distress, gastrointestinal maladies, vomiting, diarrhea, respiratory tract infections, severe headaches, fatigue, lethargy, and other symptoms. Blood samples showed elevated antibodies to neurotoxin-producing molds, including Stachybotrys, Aspergillus, and Penicillium. The case settled for $545,000. (Confidential Report for Attorneys, CRA No. 9855; 1988 Issue, pg. 08-76; Jacqueline Berry v. Mission Terrace HOA, ACSC case no. H-182260-5)
A judge entered a $2.7 million jury verdict for a family for personal injuries related to mold exposure. The plaintiffs successfully introduced evidence of headaches, respiratory problems, joint pain, skin rashes, repeated colds, gastrointestinal ailments and other health issues to the jury. (Mazza, et al. v. Schurtz, et al.; See “Legal Issues Involving Mold Contamination” By Robert B. Casarona, Esq. Aaron E. Mcqueen, Esq. Http://Www.Ralaw.Com/Files/Articles/Mold%20litigation%20paper.Pdf#Search=’Legal%)
In November 2003, a Massachusetts jury awarded a Gloucester condo owner $549,329 in damage and interest after she was exposed to mold that her doctors said made it difficult for her to breathe and forced her to leave her home after only six weeks.
Political Action Committee – National Apartment Association (NAA) files Amicus Brief in mold case (two infant deaths in mold filled apt – Wasatch Prop Mgmt) citing US Chamber/ACOEM ‘litigation defense report’ to disclaim health effects of indoor mold & limit financial risk for industry
“Changes in construction methods have caused US buildings to become perfect petri dishes for mold and bacteria to flourish when water is added. Instead of warning the public and teaching physicians that the buildings were causing illness; in 2003 the US Chamber of Commerce Institute for Legal Reform, a think-tank, and a workers comp physician trade organization mass marketed an unscientific nonsequitor to the courts to disclaim the adverse health effects to stave off liability for financial stakeholders of moldy buildings. Although publicly exposed many times over the years, the deceit lingers in US courts to this very day.” Sharon Noonan Kramer
Information on Riverstone Residential, the Louisiana Housing Finance Agency, and the owners of Toxic Mold Infested Jefferson Lakes Apartments in Baton Rouge, Louisiana continuing to allow tenants to be exposed to extreme amounts of mold toxins