mold - law firm

[Guest guest]

http://www.imakenews.com/pureaircontrols/e_article000532062.cfm?x=b6MqGs7,bsqc8t\

8

Mold Spawning Litigation

by Tony Quesada, MSNBC.com, The Business Journal of ville, Feb. 12,

200

JACKSONVILLE -- Ten years ago lawyer Freed had never litigated a

case related to mold damage.

Last year, he filed about a dozen mold-related lawsuits for plaintiffs and

represented about an equal number of defendants in such cases. He expects both

numbers to rise this year.

Twenty percent to 30 percent of his cases now involve mold, said Freed,

the ville-based managing partner for the Florida offices of Brennan,

Manna & Diamond LLC. The demand for mold litigators is high, and the only thing

limiting how much of his caseload focuses on it is his preference to maintain a

diversified practice.

" There's room for a mold litigation boutique firm in ville, " he

said.

Mold litigation is more than a decade old, but it picked up steam after

2000. A spate of high-profile cases and large awards attracted media attention,

which in turn created public awareness leading to more litigation.

In many ways the market for mold inspection and removal, which continues

to grow without a peak in sight, owes its prosperity to the increased concern --

some would say hysteria -- for health and liability arising from litigation.

By some accounts, the total money paid to mold plaintiffs through trials

or from settlements exceeds that resulting from asbestos cases.

The largest recent case concluded in October 2005 in California when a

lumber company settled with a plaintiff for $13 million. That combined with

settlements from co-defendants brought the case's total to $23 million.

In 2003, a class-action suit in Washington state against a paint maker

ended with a $55 million settlement for 5,000 state residents and a $107.5

million settlement for national members of the class.

A Texas jury in 2001 ordered an insurance company to pay a couple $32

million, although the award was reduced to $4 million on appeal.

And in 1996 in Florida, County was awarded $14.2 million in its

lawsuit against a construction manager and several insurance companies involved

in building its county courthouse.

Meanwhile, more lawyers are getting involved in mold litigation, and the

rise in mold torts has fueled a cottage industry for those who provide expert

testimony on both sides of such cases.

Lipsey, a former toxicology professor who has taught at the

University of Florida and the University of North Florida, gave that up in 1986

to be a full-time consultant. Lipsey, whose office is in Downtown ville,

bills himself as the only mold toxicologist with a Ph.D. consulting on mold

litigation in the U.S. While his cases involve many kinds of toxic substances,

his experience in mold mirrors the trend in that area of litigation.

In the 1980s and 1990s, Lipsey worked two or three mold cases a year. That

number jumped to about 20 by 2000 and went up again to about 30 by 2002. Mold

litigation now makes up about 60 percent of his total workload, which is around

100 cases a year, and he doesn't see it dropping soon.

" It's going to keep growing, " he said, " but it's going to keep growing

smarter. "

Many working in mold litigation concede the rise in lawsuits and the

number of lawyers filing them is partially driven by the opportunity for a large

payday.

" More and more lawyers, " Freed said, " are willing to take the chance of

getting involved in something they may not be totally familiar with in hopes of

getting a big verdict. "

But he and others also point to newer construction and design methods.

" Buildings are not made as well. They use a lot of particle board, " Lipsey

said. " fir, when it gets wet, will dry out fine. When particle board

gets wet, it gets saturated and becomes a breeding ground for mold. "

Another problem, Freed said, is that many " newer buildings suck. " By that

he means that some houses and buildings have air-conditioning systems that fail

to maintain a higher or equal pressure inside than the pressure outside,

resulting in drawing in warm, hot air.

As an example, Freed cited one of his cases that ended in September. He

won a $475,000 judgment for a company that sold two newly built hotels in

ville at a big loss because they were infested with mold before they

opened.

The court concluded that the main cause was improper ventilation system

design by the subcontractor handling that part of the construction.

Whatever the reason, there are many who say mold litigation is out of

control. Those worried about its economic effect became so bothered that the

U.S. Chamber of Commerce's Institute for Legal Reform held a conference in July

2003 on " The Growing Hazard of Mold Litigation. "

Copland, director of the Center for Legal Policy at the Manhattan

Institute, who was one of the event's main panelists, said there is good cause

for concern.

" The [American Bar Association] journal called it black gold, the next

asbestos, " Copland said. " Unlike asbestos, which is gone from the marketplace,

mold litigation could go on forever. "

Copland argues that because mold is so naturally prevalent and " virtually

impossible to stop, " putting liability on builders and property managers is

tantamount to a " substantial tax " on renting an apartment or buying a home.

" How these cases are handled is going to have a substantial impact on the

cost of housing, " he said.

The main outcome from the 2003 conference was a report arguing that

science does not support claims that mold can be toxic.

" Since then, the state of science has buttressed what we said in our paper

and at the panel, " Copland said. " The claims of mold toxicity are provably wrong

and have been rejected by the scientific evidence. "

Media attention on mold litigation seemed to peak a few years ago in the

wake of several high-profile cases.

In 2003, the Insurance Information Institute estimated 10,000 mold-related

lawsuits were pending in the country. But since then none of the organizations

opposing the rise in such cases has kept a tally on how many there are at a

given time.

Nevertheless, those involved in mold litigation say the volume of active

cases is either holding steady or growing.

Bryson, a North Carolina lawyer who led a national conference on

construction defects and mold litigation in November 2005, said the field is

poised for an uptick. All that's needed for a dramatic change is for researchers

to identify more links between mold and health problems.

" If the science can catch up to the claims, I think you'll see an increase

in cases, " Bryson said. " What we're waiting for is more science to help prove

the personal injury claims. "

On the other hand, some people see changes in the insurance industry

reducing mold litigation. Many of the large early mold lawsuits involved claims

of bad faith by insurers, but since then policies have been changed to exclude

mold coverage.

O'Neal-Coble, an Orlando lawyer who tried the County

Courthouse case, said bad-faith claims present a chance for greater damages.

Such claims will continue under older policies but they'll become less common

and less successful.

" It takes a while for policy changes to go into effect, " she said. " You'll

see fewer bad-faith claims stick. "

# # #