An article ran on Reuter’s today titled, “Better Science Means More Toxic Mold Lawsuits”
Although the article appears well intended, it’s exactly the type of article that strikes fear in stakeholders of moldy buildings and causes the science to be actively stifled. The article claims,
“Toxic mold lawsuits have historically been met with speculation. Much of this was the result of the science — differing opinions on causation and whether visible mold automatically implies the presence of toxins. Some even went so far as to claim mold litigation was based on ‘junk science and hysteria.’
However, a recent ruling from a New York appeals court suggests that prevailing opinions about mold science may have changed. At least when it comes to the courts.
Brenda Cornell had sued her ex-landlord for respiratory illnesses developed as the result of 6 long years of mold exposure. The trial court had dismissed her suit, relying on the appellate court’s 2008 ruling in Fraser v. 301-52 Townhouse Corp.
In Fraser, the court declined to accept scientific evidence connecting the plaintiff’s illness with mold. The plaintiff failed to prove that the scientific theory connecting mold and dampness to illness is generally accepted by the scientific community.
Cornell’s toxic mold lawsuit did not meet this roadblock. Fraser, the court wrote, does not preclude all such suits. The plaintiffs were able to prove that Cornell’s former apartment was above a mold-infested basement and that mold was growing under her floorboards. Medical experts testified and relied on a number of studies.
Those studies, wrote the court, were “statistically significant” and demonstrated ‘that exposure to mold caused the identified ill-health effects.’ The court further concluded that “it is undisputed that exposure to toxic molds is capable of causing the types of ailments from which plaintiff suffers.’
This conclusion is an important one for plaintiffs bringing toxic mold lawsuits. It implies mold science may have finally reached a point where it helps, as opposed to hinders, litigation.”
Reuter’s has it backwards of what happens when science progresses. When science reaches the point that a specific environmental illness is acknowledged to have a specific cause; litigation is not increased. It is decreased. This is because it becomes less expensive for insurers and others to settle the claims early on. It becomes less expensive to stop the exposure before illness occurs. The risk to not address properly, early on, becomes too great to litigate.
When that happens, accurate science flows in policy because it then becomes financially advantageous for insurers and others – who have had to accept responsibility for the illnesses – to find a feasible way to lessen the damage from the illnesses they have caused.
This case in New York really is a significant case. Not because the science has advances so much. The science has always been there. It is significant because it just increased the liability for insurers and others who would choose to litigation – rather than do the right thing of taking care of the injured early on.
THAT is what the California case of Kelman v. Kramer has been all about. Stakeholders wanting to keep the real science on the QT. The California judicial system has many questions to answer for their aiding this to continue for seven years longer than it should have in US courts.
