Law Resources for a Legal Case Regarding Mold
by Michael Rubino // November 12
While we hope you never need to take someone to court to settle a mold problem, sometimes it’s the only option available to hold someone accountable. Whether your family just built a home with a contractor that didn’t take mold growth seriously or you live in a building where the landlord didn’t maintain the property, we’re here to help.
BRINGING IT TO THEIR ATTENTION
Your first step should be bringing the issue to the other party’s attention. During the discussion, give them resources to look into so they better understand what you’re going through. Our website is packed full of information you can send over to them!
Confusion and a lack of knowledge often drive the initial dismissal of a concern. Giving them the tools to better understand the scope of the problem can clear up any confusion and get them on board to help solve the issue. If this discussion doesn’t get the results you’re looking for, then you may need legal action.
UNDERSTANDING THE HISTORY
The best way to start is to get up to date on the studies and cases involving mold over the years. We’ve created a page with an extensive timeline of all major moldy events dating all the way back to 1837 for you to read through. During your research, keep in mind that there aren’t very many precedences set regarding mold exposure (other than legal settlements). This means that you need to find a toxic tort lawyer that understands what groundwork exists and is prepared to battle for you in court. To be completely transparent, it will be a lot of work. With your health on the line, though, it’s worth it.
Below are a few court cases from the past 20 years that can offer insight on how to improve your case.
While studying the results, we noticed one particular takeaway from a majority of these cases. Most of the plaintiffs brought in expert witnesses (doctors and mold experts) to testify about the plaintiff’s suffering caused by mold exposure. The testimonies were sound, but they were considered inadmissible every time because of the defense’s counterargument. By pointing to Rule 702 of the Federal Rules of Evidence, the defense convinced the judge that testing used for that particular case doesn’t meet the correct criteria.
Rule 702 of the Federal Rules of Evidence
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
- the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
- the testimony is based on sufficient facts or data;
- the testimony is the product of reliable principles and methods; and
- the expert has reliably applied the principles and methods to the facts of the case.
If this is approved, it’s up to the judge to determine the result of each case. More often than not, they ruled against the plaintiff because of “inadmissible evidence” which means the testimonies are also “inadmissible.”
Another defense strategy we’ve seen is for the defense to discredit the expert. Here’s an excerpt from a court case in 2020 where this tactic was used.
“Defendants moved pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), Parker v. Mobil Oil Corp., 7 NY3d 434 (2006), and Cornell v. 360 West 51st Street Realty, LLC, 22 NY3d 762 (2014) to preclude Dr. *****’s testimony on the grounds that:
(1) It is not generally accepted by the relevant scientific/medical community that inhalation in a residential environment of the types of molds and mycotoxins to which Plaintiff was allegedly exposed can cause the illnesses alleged by Plaintiff in humans. (2) The method by which Dr. ***** attributed Plaintiff’s medical conditions to the alleged mold exposure is not generally accepted as reliable by the relevant scientific/medical community. (3) Assuming arguendo that Dr. ***** employed generally accepted principles and methods, her opinion should nevertheless be excluded based on the “analytical gap between the data and the opinion proffered.”
Things to consider following this excerpt:
- Even the CDC states that some people can be sensitive to mold and their byproducts; everyone is different and will experience exposure differently.
- The medical community at large does not disagree that mold can cause health reactions.
- In the 90s, millions of dollars were awarded to those suffering from mold exposure.
Our biggest takeaway? We shouldn’t be suppressing the public of their right to hold people accountable. Instead, we should be educating our industries and making them build and maintain better living environments.
EVIDENCE THAT COULD WORK
Valparaiso University Law Review gives an example.
This review shows the technology we aren’t using to provide proper evidence that can win cases. Some cases over the past few years have managed to advance and set new precedents that set up plaintiffs for success.
In 2016, Judge Raymond A Jackson allowed NeuroQuant® and NeuroGage® to be used as evidence, even with objections from the defense counsel. NeuroQuant® and NeuroGage® are commercially available software products that can measure and track brain volume abnormalities in patients with mold-related illness and many other brain disorders. They provide important, objective data which supports the patient’s neuropsychiatric symptoms that otherwise would be difficult to prove.
This was the first time these brain volume measurement tools were admitted in Federal Court. David E. Ross, M.D., neuropsychiatrist, testified on the neuropsychiatric aspects of mold-related illness which had affected the plaintiff. The results showed brain atrophy and the jury voted in favor of the plaintiff.
In court, positive rulings are crucial because they set a precedent that other judges in future cases will look back on and use as a reference. Meaning, they’ll allow the same evidence to be used for other court cases. That it happened at a Federal level means that state courts will be far more inclined to follow the lead of that ruling as well.
Dr. Tania Dempsey has also started looking into whether Epigenetics (a study that analyzes DNA) could be a test that experiences success in courts as well. It could help determine if chemicals, mold, mycotoxins, heavy metals, and DNA adducts are present in the body. That would be a huge step towards proving the correlation between mold presence in a body and mold presence in the environment.
THE SCIENCE SO FAR
Below is a list of clinical trials, peer reviews, and clinical microbial reviews that show the medical and scientific communities are studying the effects of mold and do not generally accept that there’s nothing correlating mold and biotoxin exposure to someone’s health.
“Mycotoxins” by J.W. Bennet and M. Klich:
“Toxic effects of mycotoxins in humans” by M Peraica, B Radić, A Lucić, M Pavlović
“Indoor Mold, Toxigenic Fungi, and Stachybotrys chartarum: Infectious Disease Perspective” by D.M. Kuhn and M.A. Ghannoum
“Structural brain abnormalities in patients with inflammatory illness acquired following exposure to water-damaged buildings: a volumetric MRI study using NeuroQuant®” by Ritchie C Shoemaker, Dennis House, and James C Ryan
“Biochemical Impedance on Intracellular Functions of Vitamin B12 in Chronic Toxigenic Mold Exposures” by Ebere C. Anyanwu and Ijeoma Kanu
“Metabolism of Mycotoxins, Intracellular Functions of Vitamin B12, and Neurological Manifestations in Patients with Chronic Toxigenic Mold Exposures. A Review” by Ebere C. Anyanwu, Mohammed Morad, and Andrew W Campbell
“The effect of Aspergillus fumigatus infection on vitamin D receptor expression in cystic fibrosis” by Catherine A Coughlan, Sanjay H Chotirmall, Julie Renwick, Tidi Hassan, Teck Boon Low, Gudmundur Bergsson, Ahmed Eshwika, Kathleen Bennett, Katie Dunne, Catherine M Greene, Cedric Gunaratnam, Kevin Kavanagh, Patrick M Logan, Philip Murphy, Emer P Reeves, Noel G McElvaney
“Exposure to Stachybotrys spp. and the guttation phenomenon” by Manfred Gareis, Christoph Gottschalk
“Glutathione deficiency from Mycotoxin Exposure” by Frederick T. Guilford and Janette Hope
“Chronic Fatigue Syndrom diagnosis connection to toxic mold exposures” by Joseph H. Brewer, Jack D. Thrasher, David C. Straus, Roberta A. Madison, and Dennis Hooper.
“Neurophysiological Effects of Chronic Indoor Environmental Toxic Mold Exposure on Children” by Ebere C. Anyanwu, Andrew W. Campbell, and Aristo Vojdani
“Mycotoxin Exposure related to some Children’s Diseases” by The World Health Organization
“What the primary care pediatrician should know about syndromes associated with exposures to mycotoxins” by Ruth A Etzel
We will continue to update this as more information becomes available. If you court cases to find precedence, see our Mold History page for plaintiff victories so far.
THE HISTORY OF MOLD
Read through our extensive timeline of studies and legal cases throughout the years regarding mold.
Still Have Questions?
A member of our team is here to help! Click on “Get Started ➤” below to book a consultation with a member of the HOMECLEANSE team. We have a few quick questions that will help us put together a roadmap to solve or prevent all of your mold problems.
Two minutes of your time could lead to better health for you and your family.