Overcoming the Hurdle of Causation in Toxic Mold Litigation

by Mary Hodges

Mold is a type of fungi that reproduces by releasing tiny spores which travel through indoor or outdoor air. It typically functions in wet or damp areas and digests whatever material it rests on. Some molds produce toxic substances called mycotoxins which are commonly referred to as toxic mold. Mycotoxins can enter the body though inhalation or skin contact.

Just like mold itself (with over 5,000 identified species), toxic mold litigation comes in many forms. Exposure to toxic mold can create health related injuries and property damage. Adverse health effects can range from more mundane and common symptoms such as headaches, nausea, fatigue, and respiratory problems to more exotic disorders like sick building syndrome, fibromyalgia, toxic encephalopathy, and multiple chemical sensitivity. The type of defendant can vary from architects, construction companies, commercial and residential landlords, property managers, contractors, and insurance companies.

Toxic mold cases became more popular in the 1990’s with the defining case of Allison v. Fire Insurance Exchange. This case marked one of the first instances a plaintiff prevailed over an insurance company for the insurance company’s failure to timely handle a mold claim. The delay caused mold to spread through the plaintiff’s home. This victory ignited many more plaintiffs to come forward with legitimate toxic mold claims. Initially, the biggest obstacles facing toxic mold plaintiffs were the lack of legislative guidelines and finding a causal link between mold exposure and the alleged injury.

The increase in toxic mold litigation has spawned several states to create guidelines and safety standards for mold exposure. In 2001, California created the Toxic Mold Protection Act which became a model for other states’ legislation. These guidelines have assisted the courts in determining whether issues such as the standard of care and whether a breach of duty have occurred in a negligence claim. Currently, there is no federal legislation concerning permissible exposure levels, inspection, or remediation.

The primary way for a plaintiff to prove that mold exposure caused the alleged injuries is through the use of expert testimony. However, because there is a lack of scientific consensus regarding whether mold can cause permanent severe illnesses and the level of exposure that causes such illnesses, the focus of the defense is to convince the court to exclude plaintiff’s proposed expert on the basis that the testimony is scientifically unreliable. Essentially, if neither side’s expert is excluded, the case turns on a “battle of the experts” and which side convinces the jury.

Toxic mold cases brought in federal court use both Federal Rule of Evidence 702 and the Daubert test to analyze the sufficiency of expert testimony. Under rule FRE 702, judges make a preliminary determination whether admitting the expert testimony will assist the trier of fact in understanding the case. In addition to FRE 702, the Supreme Court in Daubert delineated several factors to consider when determining whether expert testimony is admissible. These factors include: (1) whether or not the theory has been tested or proved to be valid; (2) whether the theory has been subject to peer review and/or publication; (3) whether or not there is a known or potential rate of error and if there are any relevant governing standards; and (4) whether or the not theory or technique has been generally accepted as valid by the relevant scientific community.

Prior to the Supreme Court’s ruling in Daubert, courts generally used the less stringent Frye test which determined whether the evidence is a scientific technique “sufficiently established to have gained general acceptance in the particular field in which it belongs.” Notwithstanding the Supreme Courts announcement of the Daubert test, a minority of states still follow Frye. For plaintiffs, the likelihood of success is higher in Frye jurisdictions because toxic mold expert’s testimony is more likely to be admitted despite the alleged uncertainty of scientific testing. For instance, in Centex-Rooney Construction Co. v. Martin Co., a Florida district court allowed two experts to testify about adverse health effects of mold. On the other hand, in National Bank of Commerce v. Associated Milk Producers, an employee who was diagnosed with laryngeal cancer alleged that his illness was caused by exposure to mycotoxins from contaminated aerosol milk particles which were produced during the cheese-making processes at his employment. The Arkansas District Court used a Daubert analysis to determine that the expert could not identify any studies, publications or direct scientific evidence linking the exposure to mycotoxins to laryngeal cancer.

In essence, a plaintiff’s case likely hinges on the admissibility of expert testimony. Therefore, knowing which test a state follows for determining the admissibility of expert testimony is extremely important, at least while scientific testing in this field remains somewhat uncertain.