Child Injury Claims in Georgia – Toxic Mold

The number of legal claims for toxic mold exposure exploded between 1990 and 2000. In recent years the number of suits filed has fallen. Recent claims, however, have included significant victories for the injured.

Toxic mold can create serious health issues. It hits children the hardest. One type of toxic mold, Black Mold, may be linked to a serious lung condition in infants, called Idiopathic Pulmonary Hemorrhage, or IPH. The formal name for Black Mold is Stachybotrys chartarum (or Stachybotrys atra).

Children who are exposed to toxic mold for a prolonged time can develop reactive airway disease, including the development of asthma[1], allergies and respiratory disease, wheezing, coughing and difficulty breathing. fatigue, headache, cognitive impairment, and central nervous system problems. There have been infant deaths linked to excessive exposure to toxic mold.

When a child becomes sick and the suspected cause is toxic mold, a number of steps need to be taken quickly:

Take pictures of the mold.

Mold tests are imperative. A kit can be purchased online.

Find a consultant to test the building for mold.

If legal action might be necessary, lining up expert testimony is essential. The right expert can make the difference between failure and victory. An expert opinion will be required in most cases in order to survive a motion to dismiss (or a summary judgment motion). Examples of experts that have testified in past mold cases include mycologists, microbiologists, environmental and occupational medicine board certified physicians, and neuropsychologists.

Prospective defendants in these lawsuits are insurance companies, architects, engineers, builders, remediation companies, landlords, manufacturers, repair services, and home sellers.

Starting around 2003 the insurance industry adopted mold exclusions and since 2003 virtually all property and liability policies have come to contain mold or fungus exclusions. This industry shift creates a challenge to making a recovery on toxic mold claims. Creative lawyering is essential to success. One strategy that works for some claims takes advantage of the fact that water leaks are a primary cause of mold growth. Water leaks are generally covered by insurance. If it can be proven that the mold that harmed your child was caused by a water leak that is a covered loss, the insurance company may be responsible for the injuries caused by the mold. Another possible approach is when a water leak occurs and the home owner puts the homeowner’s insurance on notice and the insurance company fails to process the claim (and remediate the problem) or delays the processing of the claim and mold grows, the insurance company may be responsible for the harm to your child’s health caused by exposure to toxic mold.

Another important consideration is that if the defendant responsible for the building has substantial assets, it may not matter whether there is insurance coverage.

Toxic mold cases are expensive to bring and win. For that reason there must be significant damages (high medical bills or permanent impairment) before you and an attorney can justify the costs of bringing a claim.

There are many variations on a successful toxic mold claim. Here are a few examples from recent cases:

Former Los Angeles Lakers Coach Ordered to Pay $250K in Punitive Damages

Bardack v. Tomjanovich, Los Angeles County Superior Court Case No. SC10185

Former Lakers coach Rudy Tomjanovich and his wife were ordered in 2012 to pay $250,000 in punitive damages, on top of nearly $3 million in compensatory damages, to a money manager for selling him a Pacific Palisades home replete with water leaks and mold.

Six Figure Verdict Against Landlord

Cohen v. Fox Management, Inc., Multnomah County Circuit Court Case No. 1010-1453

In 2011, an Oregon jury returned a verdict of $103,000, plus attorneys’ fees, against a property management company. The plaintiff, a radiologist, had rented a home managed by the defendant. When a water leak occurred in a stairwell, plaintiff advised the defendant property management company. Despite the complaint, no repairs were made and a strong musty odor developed. Plaintiff suffered eye irritation, headaches and allergy symptoms. Eventually the tenant hired an indoor air quality expert who found multiple building defects and excessive indoor humidity levels. Plaintiff was forced to move from the house.

New York Appellate Case permits case to proceed against Landlord for liability in mold case

Cornell v. 360 W. 51st St. Realty, LLC, 939 N.Y.S.2d 434 (2012)

In 2012, a New York appellate court held a tenant was not barred from pursuing a personal injury claim based on exposure to toxic mold. Prior to this decision, it was generally presumed that under New York precedent tenants were barred from attempts to prove causation under the Frye test (an evidentiary rule) in mold cases. The Frye test requires that claims of injury which must be proven by expert testimony be based on generally accepted scientific principles. In an earlier New York case, the Court effectively concluded that the Plaintiff could not show that his injury was caused by mold exposure because the theory that mold caused such injuries was not generally accepted.

[1] Mold exposure during infancy increases asthma risk. In August 2012, the University of Cincinnati published a study in The Journal of Allergy and Clinical Immunology concluding that exposure to three species of mold common to water-damaged buildings during infancy was associated with childhood asthma. These forms of mold—Aspergillus ochraceus, Aspergillus unguis and Penicillium variabile—are typically found growing in water-damaged homes. The study concluded that there is a statistically significant increase in asthma risk at age seven associated with high mold levels in a child’s home during infancy.

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Attorney Pete Pearson practices law in Atlanta, Georgia and has a special interest in helping families with injured children. He is a father to six and lives with his wife and children near Atlanta, Georgia. He can be reached directly at Six-Seven-Eight 358-2564 or through his main site, www.petepearsonlaw.com.

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