FYI: I think we all ready new this: thought I would send it anyways

[Guest guest]

This article was in the Gazette, Colorado Springs

Darlene

January 14, 2007

Mold case files: Science can be key to `evidence'

OPINION Jim Flynn

Going back a few years, the hot new ticket to wealth through

litigation was " toxic mold. "

Lawyers and their clients were able to convince judges, juries and

insurance adjusters that mold found in homes and buildings was ruining

their health and their lives, and somebody, by golly, was legally

responsible for this and should have to pay compensation as a consequence.

By way of example, in a 2001 Texas case against an insurance company

accused of bad faith in the handling of mold claims, the jury awarded

$33 million in damages. (Word of verdicts like this spreads quickly in

the legal community.)

But, because

of several recent developments, toxicmold litigation appears to be on

the wane.

The main reason for this has to do with science.

There seems to be general consensus in the medical/scientific world

that most varieties of mold are no more toxic than, say, a shedding

golden retriever.

Additionally, well-constructed studies by reputable organizations have

failed to establish a clear link between human ailments and even mold

that does have toxicity, except in individuals who are already

suffering from some form of serious pulmonary disease.

People with these conditions know they must be careful to avoid mold

and a host of other common items (including, presumably, golden

retrievers).

Then, in the absence of scientific support for a connection between

mold and sickness, courts have been refusing to allow plaintiffs to

present evidence blaming their health problems on mold.

In this regard, the law regularly struggles with the problem of paid

witnesses wanting to testify as experts in support of an injury claim.

If a judge concludes that the witness is basing his or her testimony

on junk science, the testimony will not be allowed.

The tricky question, of course, is separating junk science from other

science.

Also, the insurance industry, although occasionally slow to learn, has

figured out that mold injury is not something it wants to deal with,

so insurance policies now contain exclusionary clauses specifically

addressing mold.

Thus far, courts have been willing to enforce these clauses, and the

absence of insurance companies obligated to pay claims has had its

usual dulling effect on the enthusiasm of personal-injury lawyers.

Finally, real estate brokers and sellers have learned to put the

burden of discovering and evaluating mold on buyers in the same manner

they deal with radon — " There may be mold. There may not be mold. If

you're worried about mold, hire somebody to look for it and determine

its significance. If you don't like the results, don't buy the

property. In all events, you can't sue us. "

The only mold claims left that seem to have much viability result from

intentional misrepresentation — a polite term for fraud.

If a seller knows there is toxic mold lurking in a home or building,

fails to fix the problem and fails to disclose the problem to a buyer,

the seeds for a successful lawsuit for damages measured by a reduction

in value of the property may have been planted.

Contact Jim Flynn c/o The Gazette, P.O. Box 1779, Colorado Springs

80901; fax 578-8836 or e-mail jtflynn325@.... Not all

questions can be answered.