Mark Wiechnik – December 10, 2012
Everyone knows that humans only use 10% of their brains (an untrue “fact”, unless you mistakenly voted for Pat Buchanan in 2000), that Christopher Columbus called Native Americans “Indians” because he thought he landed in India (that part of the world was called Hindustan in Columbus’ time) and that being cold will ensure that you actually catch a cold (also not true, sorry Mom). So when “they” say that “they” know mold causes serious personal injuries, you know it has to be true because the internet (as well as Dateline and 60 Minutes) tells us so. Many people have heard that a couple in Texas got $32 million dollars because their house was filled with so much mold they had to burn it down. What most people don’t know is that the money was paid by their insurance company for acting in bad faith and deceptively failing to cover their claim for property damage, not because they were physically damaged by mold exposure. Read closely the articles about “toxic mold” and you’ll find that most if not all of the money paid to homeowners is for lost personal items that have to be discarded because of mold/water damage, or some act of an insurance company. Rarely are the damages directly related to mold exposure and resultant health problems. Newspaper headlines are not designed to be accurate, but improper are designed to attract attention. “Toxic Mold Injures Family” unfortunately just sounds better than “Insurance Company Pay Money on Bad Faith Claim”.
The connection between wet or moldy houses and a particular physical ailment is a difficult one to make. Mold is everywhere. And while it is possible for some mold to cause temporary issues to an allergic person, there is little that exposure to a certain type of mold will cause particular symptoms in anyone. The effects of exposure differ from person to person. In fact, the Centers for Disease Control web site states that:
Mold exposure does not always present a health problem indoors. However some people are sensitive to molds. These people may experience symptoms such as nasal stuffiness, eye irritation, wheezing, or skin irritation when exposed to molds. Some people may have more severe reactions to molds. Severe reactions may occur among workers exposed to large amounts of molds in occupational settings, such as farmers working around moldy hay. Severe reactions may include fever and shortness of breath. Immunocompromised persons and persons with chronic lung diseases like COPD are at increased risk for opportunistic infections and may develop fungal infections in their lungs.
It’s clear that not even the scientists at the CDC know if the mold in your house or workplace will harm you. More importantly there are no recognized standards for the amount of mold that will cause symptoms, or the length of time you need to be exposed to certain mold to be injured, Most people who have mold allergies stay away from hay, potpourri and indoor plants. If they are exposed to mold that may have sneezing, coughing and breathing problems, but those go away as soon as they leave the horse stable or their grandparent’s house. These pesky facts however, have not precluded lawyers and plaintiffs from filing questionable “toxic mold” lawsuits. Lawsuits are filed based on the “I know it’s true” platform accompanied by “I’m a doctor and I’m pretty sure the Plaintiff was injured based on what the patient told me and that article I read last week” medical reports as proof.
Despite the fact that even the CDC is unable to determine a cause and effect relationship between mold and physical ailments, jurors around the country and asked every day to make that determination. Jurors have become the means by which the courts differentiate the junk science from the real science. This disturbing trend is, in part, a result of judges abdicating their responsibilities as expert witness gate keepers. Increasingly, courts are allowing experts to testify, regardless of how they arrive at their conclusions. The playoff football, “let them decide it on the field”, approach is one that is leaving the final decisions to jurors, who inevitably bring their own “knowledge” to the courtroom. Regardless of what “School House Rock” says, knowledge is not always power. Sometimes “knowledge” isn’t even accurate. Take this example:
Mr. Jones sues XYZ Apartments for keeping his apartment too cold. He claims that this resulted in him having a runny nose, cough and that “achy feeling” generally seen in Nyquil commercials. Mr. Jones produces a report from his family doctor that says “Mr. Jones told me it was cold in his apartment in November, so given the fact that his symptoms started in November, I believe that the low temperature caused his cold. In addition, when he warmed up at his friend’s house, the symptoms apparently went away.” The doctor/expert doesn’t specify how cold is cold enough to make Mr. Jones sick, nor does she account for the co-worker sneezing in the cubicle next to Mr. Jones at work, or the fact that Mr. Jones had 3 colds before moving into XYZ Apartments, or that during the 2 weeks between his first and second visit to the doctor, when he got better, Mr. Jones ate 28 oranges.
XYZ Apartments asks the judge to throw out Mr. Jones case because he can’t show that A) it was too cold in the apartment because they can’t define “too cold”, B) if it was “too cold”, that the temperature caused Mr. Jones to actually catch a cold, or that C) he didn’t catch the cold from his cubicle-mate, or that D) the vitamin C in the oranges cleared up the cold, not the fact that he went to a warmer apartment. The court denies XYZ’s request, saying that there is a sufficient basis for the report, and that XYZ is free to beat up (verbally of course) the expert during cross examination and convince the jury that the doctor has no idea what she’s talking about.
This appears to be a reasonable decision, until my Mom is picked to sit on the jury. All my Mom needs to hear is that it was cold in the apartment, and that he has a cold. Her decision would be made. As sure as the sun comes up in the morning, being cold gives you a cold. There is no disagreement, believe me. It doesn’t matter if XYZ produces the President of the Hot & Cold Association of America to testify that they took the temperature in the apartment, and its 59 degrees. And while that might be mildly chilly, it’s definitely not cold, and besides, being mildly chilly doesn’t cause any sort of illness. No such proof ever produced. In my Mom, however, Mr. Jones wins 10 times out of 10 question then is, shouldn’t the court have excluded this testimony to prevent my Mom from using what she “knows” to be true, even if there was no real casual connection? Shouldn’t the court know better than to allow an expert to testify that will at best confuse a jury and at worst confirm inaccurate “common knowledge”.
The New Jersey Appellate Division apparently thinks not. In an unpublished opinion, the court recently permitted a case to go forward where a tenant claimed to have been injured by exposure to toxic mold. In Smith v. Northridge at Edison, the Plaintiff’s doctor, relying on the Plaintiff’s explanation of the facts as she believed them to be, submitted a report that said essentially because the water intrusion and mold growth occurred at the same time as her symptoms, and because her symptoms seems to diminish when she left the apartment, she was obviously damaged by the mold in the apartment. The doctor claimed that the temporal similarities led him to believe that her condition was caused by the “harmful conditions present in her residence.” The doctor has never visited the apartment and did no testing or investigation of the types of contaminants present in the apartment. The trial court dismissed the plaintiff’s claims, finding that the doctors lack of specificity as to the type of mold spores, the lack of objective testing on the plaintiff, and the failure to identify that it was even mold in the apartment was fatal to the doctor’s ability to testify. There was no way to tell what the plaintiff thought was mold, actually was mold, and that whatever it was that was found type of mold caused the symptoms experienced by the plaintiff.
The Appellate Division, however, found that the temporal evidence (the fact that the “mold” apparently grew around the same time as the symptoms occurred and that the symptoms subsided when she left the apartment) and the plaintiff’s positive response to treatment, was sufficient to permit the doctor to testify at trial as to causation. The matter was sent back to the trail court for further proceedings, which means a trial will eventually be held to determine the outcome of the case. The apartment owner should hope that my Mom has not been called for jury duty.
This case is an example of the courts increasing unwillingness to dismiss claims which are based upon thinly based expert opinions. Much like the criminal justice system would rather a guilty man go free than put an innocent man behind bars, the civil courts would rather permit a marginal claim to proceed, than dismiss a single meritorious claim. No one doubts that Americans should have their day in court. Recent cases on toxic mold personal injury cases are a clear example of their philosophy. The problem is that the pendulum has swung too far in favor of allowing almost any doctor to testify as to causation of mold personal injuries, mostly based on what they have been told by their patient. This permits jurors to ignore the science in favor of what they think they know about mold and its health effects. Courts need to take into account the possibility of an erroneous jury decision based on facts not in evidence, and the implicit message they send to jurors when allowing a doctor to testify on matters on which they have only slightly more experience than do the jurors. Judges need to be the gatekeepers and the Appellate Division needs to support their effort.
Well. . . everyone knows it: the testimony of a mold expert – Lexology.