ENVIRONMENTAL LEGAL BLOGS

EVEN THE COURT ENJOYS NO MOLD IMMUNITY

     AP reports today that:

A federal judge has closed portions of Miami's historic downtown courthouse after a report identified widespread mold infestation and ongoing water leaks, with one part of the basement termed "disgusting" by inspectors.

U.S. District Judge Federico Moreno, the chief judge in Florida's Southern District, said in a memo that parts of the basement that house court records and a stairwell used by judges were being closed until further notice.

EPA'S "ERMI" TEST-PROMISING, BUT NOT A DEFINITIVE HEALTH TEST

     On July 22, 2007 (go to "Categories"/"Toxic Mold" on the right-hand side of this page), I posted an article on the state of toxic-mold liability in the United States, essentially pointing out that there were as yet no definitive standards to "prove" that mold in any particular situation had caused someone's health problems.  In response, one reader sent in a comment that such a standard now exists in the form of the US EPA's "Environmental Relative Moldiness Index", or "ERMI".

     I am grateful for the reader's posted comment. However, the ERMI is not a health-based standard but rather simply a method to compare levels of mold in a home environment to a representative sampling of homes across the nation.  From this comparison, one can conclude that a home is overburdened (or under-burdened) with mold compared to the average home; but, as even the most ardent proponents of using the standard agree, there is no proven correlation between the level of mold in a home and particular health conditions.

     The ERMI approach starts with a highly scientifically accurate sampling of mold, using a specialized vacuum device to scoop up dust particles for mold measurement (as opposed to air sampling, which up until recently was the usual method to collect samples for mold measurement).  Whereas air samples reflect a very short duration of measurement in a potentially changing environment (i.e., air currents can vary from time to time), the dust sample is relatively stable, reflecting as the sample does materials that have collected over a relatively long period of time in such media as carpeting. 

      The dust sample is then analyzed in the laboratory by mold DNA traits, producing conclusive identification of the types of mold in the sample (as opposed to observations of the mold appearance, which observations are apparently prone to more subjective interpretation).  36 types of mold are categorized--26 types which result from historic water damage and 10 types that are associated with common household molds.  The quantity (derived at by a "log-transforming" method) of common household molds are subtracted from the quantity of the more dangerous molds to produce a score ranging from -10 to 20.  The lower the score, the less of a mold burden is deemed to exist.

     The mold-burden score from between -10 to 20 is then compared to a survey of over 1,000 homes done in 2006 by the United States Department of Housing and Urban Development ("HUD").  A mold burden of -10 to -4 places a house in the "low" mold burden category compared to the homes surveyed; from -4 to 5 places the home in the "moderate" burden category; and a score greater than 5 places the home in the "high" burden category.

     While the ERMI score is clearly helpful in alerting a homeowner to the possibility of dangerous health conditions being caused by mold, since there remains no definitive correlation between mold exposure and chronic disease the ERMI test is essentially useful only as a warning system that further investigation is required.  In a home with a high ERMI score and evidence of health problems (e.g., aggravated asthmatic conditions and other respiratory problems), the high score should sound alarm bells. 

     However, a low ERMI score does not mean that resident are not suffering apparent symptoms which have been caused by the presence of mold.  Nor does a high score where no symptoms are apparent mean there is a definite health problem.  The ERMI score is simply one additional indicator of the need for further investigation and interpretation.

     Moreover, the ERMI approach has its own methodological limitations.  The ERMI test was developed for homes, not commercial buildings.  One needs to extrapolate to draw any conclusions in the latter context.  Further, the dust sampling used in the HUD survey was done in specific areas of the living room and the bedroom.  Varying these sampling areas arguably would introduce some subjectivity in comparison of the dust-burden in any given home with the national sample used for ERMI results.

     Thus, the ERMI approach is an important step in ultimately developing a conclusive test of the effects of mold exposure on human health.  However, ERMI is just that--a step on the road to such a conclusive test and not the conclusive test which still continues to elude us.

     For good website discussions of ERMI, please see     http://www.aemtek.com/newsite/?q=node/98,   http://www.cleanairlabs.com/media/downloads/ERMI-scores.pdf, http://www.aerotechpk.com/AnalyticalServices/ERMI.aspx, http://www.joem.org/pt/re/joem/abstract.00043764-200708000-00002.htm;jsessionid=H4yTqJLb8G1LSrB0gWQmJv0wLh8bw2hDRXzDKpk4htBKvFJTFn1v!-383192544!181195628!8091!-1 and  http://www.mycometrics.com/articles/ERMI_Lin_IEC2007.html

THE TOXIC MOLD LEGAL LANDSCAPE

     I am a columnist for the Warner Center News (Woodland Hills, California); my column is entitled "Legal News You Can Use". Here is my recent column on toxic mold, which summarizes the present state of the toxic mold legal landscape:

What is “toxic” mold?

     Mold is a naturally-occurring fungus which serves the necessary function of digesting dead wood, leaves and other bio-refuse.  In your house or business, however, you of course don’t want that function occurring on yourwood.

     In addition to feeding on things like wood, mold needs water to survive. That’s why wet or damp environments inside your home or business are natural places for mold to form.

     “Toxic” mold is so called because certain types of the fungus produce chemicals knows as mycotoxins.  These toxins are thought by some to produce acute reactions in susceptible people, ranging, among other things, from allergies, rashes, headaches and fatigue to dizziness and inability to concentrate.  However, regarding such reactions, it is generally agreed that when a person is removed from the source of the problem (the mold), the problem goes away.

     The real controversy is whether toxic mold can produce “chronic” reactions-that is, reactions that don’t go away even when the person is removed from the mold exposure.  Plaintiffs’ lawyers and their experts contend that toxic mold can cause asthma, rheumatoid arthritis, chronic obstructive pulmonary disease, and even cancer, among many other terrible things.

What does science say about “toxic” mold exposure?

     There is significant doubt, however, regarding whether these chronic conditions are in fact mold-driven.  For example, the Centers for Disease Control states on its website that, with the possible exception of asthma, a cause-and-effect relationship between mold exposure and chronic illness has yet to be proven. Moreover, neither the federal nor State government has issued any “Permissible Exposure Limits” regarding toxic mold.  In 2001, California enacted the Toxic Mold Protection Act, which required that a study be done to see if such limits could be formulated. Four years later, however, the study group reported that there simply was insufficient scientific consensus to come up with exposure limits.

How have the Courts treated toxic-mold claimants?

     Nonetheless, this doubt has not stopped Plaintffs’ lawyers, in some cases successfully, from trying to convince Courts and juries that their clients’ medical problems are linked to their mold exposure. There may be as many as 10,000 toxic-mold cases now pending nationwide in the Courts; the results have ranged all the way from a $32 million verdict in Texas to defense rulings in New York and other States.

     If there is any unifying theme in the cases, it is that juries seem to be sympathetic to claimants where the injury appears severe and the defendant landlord, contractor, etcetera either acted indifferently to the claimant’s pleas and/or performed remedial work in a negligent fashion.  With the science so much in doubt, juries may be making up for such doubt by penalizing the defendant who does not show proper cocnern. Therefore, if you’re on the receiving end of a mold claim, responding quickly, decisively and with concern may go a long way to limit your liability in any subsequent litigation.

"Are Black Molds Toxic?", from Article Dashboard.com, by Amy A. May

     I came across an interesting website, ArticleDashboard.com, which lists itself as "The Internet's premier website for article distribution."  Included at the site is an article, "Are Black Molds Toxic?", by Amy A. May.  I don't know her qualifications or background.  However, her commentary on toxic mold is not out of the mainstream of other comments on the still controversial subject of exactly what symptoms/diseases are provoked by mold exposure:

There are very few reports that toxigenic molds found 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 toxigenic mold and these conditions has not been proven. A common-sense approach should be used for any mold contamination existing inside buildings and homes. The common health concerns from molds include hay fever-like allergic symptoms. Certain individuals with chronic respiratory disease (chronic obstructive pulmonary disorder, asthma) may experience difficulty breathing. Individuals with immune suppression may be at increased risk for infection from molds.

    

New Study Claims "Mold Usually Harmful Only in Large Concentrations to Allergic Individuals"

A new study from the American College of Allergy, Asthma & Immunology ("ACAAI") falls into line with a growing consensus the effects of "toxic mold".  For what it's worth, the study was funded in part by the Clorox Corporation.  Anyway, here are key conclusions from a press release put out by the ACAAI:

Mold is normally present in all homes, but is usually harmful only in large concentrations to allergic or sensitive individuals, according to a report published in this month’s Annals of Allergy, Asthma & Immunology, the scientific journal of the American College of Allergy, Asthma and Immunology (ACAAI).

"Although toxic mold has received much media attention lately, toxic reactions caused by fungal exposure have not been found to be a significant health problem," said lead author Jay M. Portnoy, MD, of the Children’s Mercy Hospital in Kansas City, Mo. "The more common household molds, when in the presence of moisture, can proliferate and cause problems and health effects that are generally due to allergy or irritation to fungal substances."

***

"A number of studies have suggested that exposure to indoor fungi can trigger allergy symptoms. Fungal exposure is also associated with exacerbations of asthma, although it remains unclear that this exposure causes the disease," Dr. Portnoy said.

Adverse health symptoms associated with fungal contact also include fungal infection, irritant reaction to spores or fungal metabolites, and toxic reaction to mycotoxins, described in the report as follows:

• Infection: Most common indoor fungi grow near room temperature and do not easily grow inside the human body. Aspergillus is the most likely to cause respiratory infections, where most other fungi tend to infect the skin, nails and other areas of the body that function a lower temperatures.

• Irritant: An irritant reaction to fungi exposure causes inflammation and can happen without previous hypersensitivity. Substances produced by fungi that are suspected to cause irritant reactions include microbially derived volatile organic compounds (MVOCs), ergosterols and glucans. MVOCs are produced by fungi as a byproduct of their metabolism, and their health effects are undetermined. They may cause nontoxic adverse effects as irritants or trigger psychological effects because of their odor. Toxic reactions do not likely occur as a result of MVOC exposure due to the low concentrations present in even the most contaminated environments.

• Toxic reaction: Most toxic reactions to fungi occur as a result of eating mold-contaminated foods. A toxic reaction is unlikely to occur from inhalation of fungi since the amount of exposure generally is too low to cause health effects.

STUDY QUESTIONS TOXIC-MOLD SYNDROME

     I must have missed this, but last October an Oregon Health Sciences University study concluded that "toxic-mild syndrome" may --despite the fact that some Courts and juries have awarded substantial sums to plaintiffs-- not exist.  In an October 15, 2005 news report, Dr. Will Boggs reports for Reuters:

Mold and dampness can cause coughing and wheezing, but there is little evidence to support the existence of the so-called toxic mold syndrome, according to a report by researchers at the Oregon Health Sciences University in Portland.

Toxic mold syndrome -- illnesses caused specifically by exposure to mold -- continues to cause public concern despite a lack of evidence that supports its existence, researchers explain in the September issue of the Annals of Allergy, Asthma & Immunology. Several critical reviews have failed to find scientific support for toxic effects from breathing in mold spores as a viable mechanism of human disease, they add.

     Of course, the Oregon study actually settles nothing and rather just ensures that the defense bar will have one more arrow in their quiver, making defendants bolder and less likely to settle toxic-mold litigation.  A critical mass of appellate law is going to be necessary before we know whether or not toxic-mold suits are a fad or a long-term feature of the legal landscape.

NASHVILLE FIREFIGHTERS WIN TOXIC MOLD CASE

     The Tennessean reports today that 2 Nashville firefighters and their wives have been awarded $76,000 in their suit against the City over toxic-mold related health problems.  The firefighters alleged that damp, moldy conditions at their fire station aggravated already-existing health problems.

     According to the Judge in the case:

"(Johnson) [one of the firefighters] had a pre-existing condition of chronic sinusitis and chronic obstructive pulmonary disease," Kurtz wrote in his opinion. "The mold-moisture at the fire hall aggravated his symptoms."

He made a similar finding for Berry [the other firefighter]. The judge also faulted the city for failing to do anything about conditions at the fire hall.

     The award, while a victory for the plaintiffs, does seem pretty mild (probably because the plaintiffs already had preexisting health problems not caused, but only allegedly aggravated, by the mold).

$22.6 MILLION TOXIC-MOLD SETTLEMENT

     It's been all over the news this morning, but in case you haven't heard:

     According to the AP as published on the San Jose Mercury News website (free registration required), a Manhattan Beach, California family has settled with defendants for $22.6 million, making the settlement the largest one in the history of toxic-mold litigation.  The parents alleged that various defendants were responsible for causing brain damage to their child as a result of mold forming in the family's newly-constructed home; the defense countered that the child is autistic and that there is no know cause of autism.

     The case settled after the trial judge ruled that 10 of the 17 defense experts would not be allowed to testify.

     This latest result follows other highly-visible toxic-mold litigation outcomes, which have been mixed.  See "TOXIC MOLD" under "CATEGORIES" on the right-hand side of this page.

POST-HURRICANE MOLD

     The AP reported yesterday ("Monster Mold Threatens Health in the South") that, in the aftermaths of Hurricane Katrina and Rita, flooded homes and hospitals are now contaminated by mold.

MAYBE "REEFER MADNESS" WAS RIGHT...

     For those of you old enough to remember, or for the younger among us who learned about it as a joke, the black-and-white '50's film "Reefer Madness" has come to symbolize old-fashioned attitudes toward marijuana use.  Now we are told, however, that "reefers" may be an environmental hazard- causing "madness" among environmentalists.

     In a letter published in today's Long Beach (CA) Press-Telegram, Detective Gregg Roberts of the Long Beach Police Department outlines some of the dangers his officers face when raiding a home marijuana factory:

The concerns of police officers at a clandestine indoor marijuana grow are as follows:

Mold spoor. Marijuana mold spoor is documented as being toxic and causes respiratory and allergic reactions. At an indoor grow operation, decaying marijuana plant material is prevalent and mold is common.

Toxic chemicals. The chemicals used in the hydroponic cultivation of marijuana include fertilizers, pesticides and steroids, which can all create health hazards for humans.

Mercury. Mercury vapor lights are used in the grow rooms. Any broken bulbs can cause harmful mercury exposure. ...

...Various studies are now indicating that the use of respiratory protection is probably appropriate at any marijuana grow, and almost always at a clandestine indoor grow operation, and especially when handling items coming out of the grow room.

     Peace, man!