[Editor's Note:
Alexander
Robertson, IV , is the managing partner
of the Los Angeles law firm
Knopfler and Robertson
, LLP, a civil litigation practice that
specializes in construction defect litigation. Prior to becoming an
attorney, Mr.
Robertson
had extensive experience in the construction industry in both
field and management positions with a large general contractor. He has
focused his practice on construction defect litigation over the past 13
years for both defendants and plaintiffs. He currently exclusively
represents homeowners and homeowner associations. Alex has lectured to
national and local consumer organizations, bar associations and recently was
an instructor at the CJER judges’ college, where he taught a course on
construction defect litigation to trial and appellate judges throughout
California. He is a lecturer and author for The Rutter Group on
construction defect litigation and was a co‑author of the Manual on
Multi‑Party Construction Defect Litigation prepared for the Los Angeles
Superior Court in 1996. During the past five years, he has handled dozens
of high profile microbiological contamination cases.]
The next time you visit your local
courthouse, spend a moment to look up at the ceiling tiles and look to see
if they are visibly stained from water leaks. Unfortunately, most of our
courthouses in this country are in a ruinous condition. We take the indoor
air quality for granted. After all, if it wasn't safe to breathe the air
inside these buildings, surely "they" would tell the us, right? If you
believe that, you probably still put milk and cookies out each year for
Santa Claus
There have been a shocking number of
courthouse closings across the country in recent years due to mold
contamination. Mold spores are problematic, because they are only one
micron in size. That means that 250,000 spores can fit on the head of a
pin. Most of these closings have been the result of construction defects
that cause chronic water intrusion, such as window leaks, roof leaks, excess
condensation from the HVAC pipes leaking onto ceiling tiles, and improper
moisture barriers in exterior finishes. Last year, a Santa Clara County
courthouse in California was closed following the discovery of
Stachbotrys mold that had colonized as a result of leaks. Approximately
a dozen personal injury cases are presently pending brought by courthouse
workers who reported developing mold-related illnesses. The county also
filed a multi-million dollar construction defect lawsuit against the builder
of that courthouse, seeking costs to repair the building and perform mold
remediation.
In Tulare County, California, the main
courthouse in Visalia is currently the focus of one of the largest microbial
contamination cases ever filed in the state. In March of 2000, a Superior
Court Judge filed the first of what would become hundreds of lawsuits
against the County alleging that the Visalia courthouse was a dangerous
condition of public property and that the county and County Counsel had
concealed and suppressed results of microbial tests performed a year
earlier. The lawsuits seek monetary damages for personal injuries, punitive
damages for fraud, as well as injunctive relief to close the courthouse
until proper remediation has been performed.
To date, three other judges and
approximately 200 courthouse workers, including bailiffs, court reporters,
clerks and others have filed claims against the county pursuant to the
Government Tort Claims act, a prerequisite to filing their own personal
injury lawsuits. Additionally, 89 assistant district attorneys and public
defenders have filed government tort claims as well. In addition,
approximately 70 county employees have filed worker's compensation claims.
Approximately 200 personal injury lawsuits against the county have been
filed so far. Needless to say, these cases have raised numerous legal and
public health issues, some of which are discussed herein
Common Fungi Found In Water Damaged Buildings
Fungi commonly found in buildings with
chronic water intrusion problems include Stachybotrys, Aspergillus,
Penicillium, Trichoderma, Ulocladium and Chaetomium, among
others. In order to understand the health effects of exposure to these
fungi, a brief background is necessary.
Fungi And Mycotoxins
Several mold species, including
Aspergillus, Fusarium, Penicillium and Stachybotrys can produce a
wide variety of non-volatile chemicals, commonly referred to as mycotoxins.
Stachybotrys alone produces over 163 different mycotoxins. According
to a current text-book of miltary medicine on the medical aspects of
chemical and biological warfare published by the Office of the Surgeon
General, the Soviets are believed to have used neurotoxins from
Stachybotrys as a biological weapon in Afghanistan. Even in low
concentrations, these chemicals are reported to cause adverse health
effects, including skin irritation, respiratory distress, pathogenic
disease, cancer and immune disorders. Unlike allergens, mycotoxins elicit a
toxic response in virtually all individuals who come in contact with them.
Aspergillus Favus, a commonly discovered indoor fungus, produces
alflatoxins, notoriously potent animal carcinogens. Penicillium,
while unable to produce aflatoxin, may produce more than 100 different
classes of mycotoxins.
Stachybotrys , one of the most
notorious mycotoxin-producing molds, has received much publicity in both the
media and in high profile closing of public and private buildings, schools,
courthouses and hospitals. Various species of "Stachy", as well as Fusarium,
can produce macrocyclic trichothecenes, which have potent adverse health
affects on the immune system, as well as protein synthesis. Stachybotrys
Chartarum (or atra) produces five different trichothecenes, which are
both dermotoxic and cytotoxin. In one clinical study, an extract of various
Stachy-produced trichothecenes was given to rats. It resulted in their
deaths within 24 hours.
Mycotoxins can enter the body via
inhalation or contact with the skin. Inhalation of mycotoxins is a much
more potent route of exposure, compared with ingestion. Adverse health
affects have been noted in individuals who came in contact with
Stachybotrys , suggesting that the toxins were absorbed through the
skin. Fungi also product a wide range of volatile organic compounds ("VOC's"),
consisting mainly of alcohols, ketones, hydrocarbons and aromatics, many of
which have distinct ordors. These VOC's which are sometimes referred to as
microbial VOC's or MVOC's, are typically what cause the characteristic musty
or dank smell which people associate with mold growth. Odor thresholds for
some MVOC's are very low, as low as 1 part per trillion.
Health Issues
Health Affects
Inhalation of mold spores, fragments
(parts), or metabolites (e.g., mycotixins and VOC's) from a wide variety of
fungi may lead to or exacerbate immunologic (allergic) reactions, cause
toxic effects, or cause infections.
Immunological Effects
Immunological reactions include asthma,
Hypersensitivity Pneumonitis (HP), and allergic rhinitis. Skin contact with
mold spores may also cause dermatitis, noted by visible red itchy patches of
skin. The most common symptoms associated with allergic reactions are runny
nose, eye irritation, cough, congestion, and aggravation of asthma. HP may
occur after repeated exposures to an exposures to an allergen and can result
in permanent lung damage.
Toxic Effects
A wide variety of symptoms have been
attributed to the toxic effects of mold. Symptoms such as fatigue, nausea,
headaches, respiratory distress, and eye irritation have been reported.
Some of the symptoms are "non-specific", such as joint or muscle pain,
inability to concentrate and chronic fatigue.
Organic Dust Toxic Syndrome (ODTS) has been
classified as a serious disease resulting from exposure to toxic species of
fungi. ODTS is the abrupt onset of fever, flu-like symptoms, and reparatory
distress within hours following a single, heavy exposure to dust containing
organic material including fungi. ODTS differs from HP in that it is not an
immune-mediated disease and does not require repeated exposures to the same
agent. ODTS may be caused by a variety of bioaerosols, including common
fungi such as Aspergillus and Penicillium.
Infectious Disease
Only a small group of fungi have been
associated with infectious disease. Aspergillosis is an infectious disease
that can occur in immunosuppressed person. Health effects can be severe.
Several species of Aspergillus are know to cause Aspergillosis. The most
common is Aspergillus Fumigatus. These species have also been called
oportunistic pathogens, meaning they are organisms that can produce disease
in an immuno-compromised person.
Medical Relocation
According to the recently revised New York
City Department of Health guidelines, infants (less than 12 months old),
person recovering from surgery, or people with immune suppression, asthma,
hypersensitivity pneumonitis, severe allergies, sinusitis, or other chronic
inflammatory lung diseases may be at greater risk for developing health
problems associated with certain fungi. According to these guidelines, such
persons should be removed from the contaminated area during remediation.
Persons diagnosed with fungal related diseases should not be returned to the
affected areas until remediation and fungal testing are complete.
Government Tort Claims
In the Tulare courthouse cases, all the
plaintiffs, whether judges, courthouse employees or bailiffs, first had to
comply with the Government Tort Claims act by filing a claim against the
County with Board of Supervisors in accordance with California Government
Code Section 910, et seq. The time to present such a claim is not
later than 6 months from the accrual of the plaintiff's cause of action. In
the Tulare cases, the county took the position that the government tort
claims were untimely, because the plaintiffs alleged that their exposure to
toxic mold began more than 6 months before they filed their claims.
However, the plaintiffs claimed that the county had concealed the results of
mold testing for nearly a year before County Counsel disclosed the test
results and thus the delayed discovery rule did not toll their causes of
action from accruing until they discovered the county's alleged fraud.
Additionally, in cases involving continuing injuries, such as exposure to
microbiological contaminants, a plaintiff is entitled to treat the claim as
one that keeps accruing from time to time and present either periodic claims
as the damage persists, or may treat the entire sequence of events as the
occurrence from which the claim arose and compute the time to present the
claim from the last event in the series. See, Natural Soda Prods. Co. v.
City of Los Angeles (1943) 23 Cal.2d 193. In the Tulare cases, the
plaintiffs claimed that their last day of work was the "last event in the
series" and calculated the 6 month period from that date.
Statute Of Limitations
In the only California decision involving a
personal injury claim from mold exposure, the Court of Appeal held in Miller
v. Lakeside Village Condominium Association, Inc. (1991) 1 Cal. App. 4th
1611 that the one (1) year statute of limitations provided by Code of Civil
Procedure 340(3) applied to a homeowner's claim against her homeowner's
association for failure to maintain the plumbing system, which resulted in
the plaintiff suffering personal injuries from her exposure to toxic mold
after flooding occurred. Although the plaintiff's condition was not
diagnosed as immune dysregulation until 1986, she suffered "extreme allergic
reactions" and severe bouts of asthma" for which she sought medical
attention in 1983 and 1984. The court ruled that the " delayed discovery
rule" did not apply because the plaintiff had actual knowledge of the
negligent cause of her injured in October of 1984, when the plaintiff hired
a microbiologist who pinpointed the source of the mold in her unit and the
plaintiff performed and unsuccessful remediation. For the one year period
to begin to run, the plaintiff must have been injured and know of the cause
of the injury.
In the Tulare cases, although many of the
plaintiffs were symptomatic more that a year prior to filing suit, they did
not know the cause of their injuries. In fact, the plaintiffs allege that
County Counsel concealed the mold test results for nearly a year, despite
the fact those reports advised the county of the adverse health consequences
that could result from exposure to toxic mold. Based upon tremendous
pressure to release information, the County Counsel's office began a series
of memos released to courthouse workers, the first of which was in February
of 2000. Thus, the plaintiffs could not have known of the cause of their
injuries any earlier than this date.
Worker's Compensation Exclusive Remedy
The Tulare judges are state court
employees. The court reporters, clerks and others are employees of the
County. The bailiffs are county deputy sheriffs. Because the judges are
not employees of the county, there is no worker's compensation bar as to
these claims. However, the county employees must allege an exception to
California Labor Code Section 3602, which provides that worker's
compensation insurance is the exclusive remedy for a work related injury.
Labor Code Section 3602(b) provides such a statutory exception. It says
that if the employer fraudulently conceals the existence of the injury and
its connection with the employment, and that aggravates the injury, the
employer is liable for the exacerbation of the injury. In the Tulare cases,
the employees of the county alleged that the county concealed the mold test
results from them for nearly a year, during which time the employees
continued to be exposed to toxic mold spores, which exacerbated their
injuries and delayed proper medical diagnosis and treatment of their
injuries.
Hazard Communication
Virtually every guideline published
dictates that the building owner, manager, and/or employer promptly notify
occupants in the affected areas of the presence of any fungal growth that
requires large-scale investigation or remediation. The New York City
Department of Health, the American Industrial Hygiene Association and the
American Conference of Governmental Industrial Hygienists all have published
guidelines on this subject.
The purpose of communicating the hazard is
to inform the employees and occupants of the building in order to reduce
suspicion and rumors and to provide persons seeking medical attention
correct information about bioaerosol agents they may have been exposed to so
they can seek appropriate medical diagnosis and treatment. The guidelines
require that notification include a description of the remedial measures to
be taken and a timetable for completion. Group meetings should be held
before and after remediation with full disclosure. Individuals with
persistent health problems should see their physicians for referral to
occupational/environmental medicine doctors who are knowledgeable about
fungal exposure. Individuals seeking medical attention should be provided
by the owner and employer with a copy of all inspection results and
interpretation to give to their medical practitioners.
Unfortunately, in the Tulare cases, the
lawsuits allege that the courthouse workers and judges were not provided
with any hazard communication from the county for nearly a year after the
county had commenced its testing and remediation program. Remediation was
often performed after hours and on weekends. Employees who worked late or
came into the courthouse on weekends described encountering personnel in
Tyvex "moon suits" wearing respirators and yet were told the courthouse was
perfectly safe. The failure to comply with these standards and provide
accurate and timely information is at the heart of the plaintiff's claims
for fraud and misrepresentation.
Injunction Against Destruction
of Evidence
In the Tulare courthouse case, the County
challenged the timeliness of the judge's original government tort claim and
demurred to the filing of her complaint as premature. the County objected
to all discovery propounded by the judge concerning contamination of the
courthouse. At the same time, the County began an aggressive campaign of
removing evidence of visibly contaminated drywall, carpets and ceiling tiles
and throwing evidence into dumpsters that were hauled to the landfill.
Because the courthouse is owned and
operated by the County, which is the target fo the lawsuits, attorneys
representing the judge went to Court and obtained a permanent injunction
against the County from removing and destroying evidence of possible mold
contamination. The Court ordered that before the County could perform any
further remediation of the toxic mold at the courthouse, the County must
give the plaintiffs' attorneys reasonable advance notice and an opportunity
to have their own consultant present to test and take samples of the
contaminated buildings materials before the County will be allowed to remove
and destroy them.
The granting of this permanent injunction
was a major victory for the plaintiffs who were concerned that the County's
remediation program, which did not commence until after the judge filed her
lawsuit, was compromising their cases. The preservation of the evidence is
a major concern in microbial contamination cases and the issue is even more
difficult when the plaintiffs do not own or control the contaminated
property. There is tension between the owner's duty to perform immediate
remediation and preservation of evidence for future litigation which must be
respected.
Recent Publicized Courthouse Mold Case
In the largest published verdict of its
kind, a $14 Million judgment was recently affirmed by the Florida Court of
Appeal against the contractor of the Martin County Courthouse for sick
building syndrome and construction defects. In April of 1996, an Indian
River, Florida jury awarded Martin County $11.5 Million against a
construction manager and three surety companies. The county alleged that
two buildings evacuate in December 1992 suffered from construction defects,
which resulted in leaks to the building's exterior skin an problems with the
air conditioning. Water intrusion and high humidity fostered the growth of
toxic molds and mildew in the buildings.
The trial judge reduced the jury's award by
$2.75 Million, reflecting the amount received by the county in pre-trail
settlements with other defendants. The court entered an amended final
judgment for $14.2 Million, including $8.8 Million in damages and $5.4
Million in prejudgment interest.
Approximately 181 courthouse workers filed
separate personal injury lawsuits against the county, which settled for a
total of $8 Million before trial.
The most notable portion of the appellate
decision to uphold the judgment was the affirmation of the trail judge's
admission of expert testimony by two doctors, that suggested the existence
of a health hazard stemming from the presence of toxic molds in the
buildings. The court of appeal held that the county met its burden of proof
under
Frye v. U.S. (1923) 54 App. D.C.
46, 293 F. 1013 D.C. Cir. , noting that both experts testified about
numerous publications accepted by the scientific community recognizing the
link between toxic mold exposure and adverse health problems. Centex-Rooney
Construction Company Co., et. al. v Martin County, No. 96-2537, Fla. App.,
4th Dist.
Conclusion
The author is currently representing the
plaintiffs in the Tulare courthouse cases, and is handling several other
large toxic mold cases involving hospitals, schools, office buildings, condo
projects and residents. Although it may seem to many that mold follows
courthouses like tornadoes follow mobile home parks, the large number of
courthouse closings and cases involving mold may be accounted for by the
fact judges, lawyers and others who work in courthouses may be more aware of
their legal rights than others.
