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Three Deadly Sins that Can Ruin A Mold Case

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Published: 23Jul2008
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Although I've seen numerous ads screaming "MOLD DESTROYS YOUR HOME AND YOUR HEALTH!", and that 'EXPOSURE TO TOXIC MOLD CAUSES PSYCHOLOGICAL DEPRESSION, FATIGUE, PSORIASIS AND 'MOLD LUNG DISEASE!", the current scientific literature does not support these wholesale claims. As a result, the courts have, with increasing frequency, dismissed those mold claims that do not meet strict evidentiary criteria. In order to clarify those areas where mold claims are particularly vulnerable, I have compiled the following "Three Deadly Sins" list that should be consulted in evaluating the strength - or weakness - of a mold exposure claim.

Deadly Sin #1 - Failing to Get Appropriate and Timely Clinical Testing that Confirms a Mold Allergy

A 2006 peer-reviewed article published by the Journal of Allergy and Clinical Immunology recommends that patients with a suspected mold allergy should undergo an accepted skin or blood test for IgE antibodies to mold antigens as part of a clinical evaluation for mold allergies. The findings in this article have been cited by other experts in the relevant medical fields as being necessary to demonstrate a mold allergy. Consequently, when a plaintiff was purportedly unable to support her claims that she sustained various allergic and neurological injuries secondary to mold exposure with these test results confirming her mold allergy, a New York County judge dismissed these claims without allowing them to go before a jury for consideration.

Deadly Sin #2 - Failing to Get Appropriate and Timely Environmental Testing that Confirms the Presence of Injury-Inducing Mold

The scientific literature over the last several years has consistently noted that while exposure to certain fungi, or molds, can cause human illness through allergy or hypersensitivity, direct infection by the organism, or toxic-irritant effects from mold byproducts, not all species of mold have been correlated with these reactions. Therefore, simply showing pictures depicting apparent mold growth are insufficient to prove mold injury; in order for a mold exposure claim to survive, the plaintiff will likely need to show that specific species of molds, which have been scientifically linked to the particular injuries alleged, were present in sufficient amounts to cause these injuries.

Deadly Sin #3 - Failing to Notify The Landlord or Contractor About Potential Mold Problems in The Home

One of the bedrock principles of the United States tort system is that a landowner may not be held liable for a dangerous condition on his property unless the claimant can prove that the owner either knew, or should have known of this defect, and that it existed for a sufficient length of time prior to the incident complained of to permit the owner's employees to discover and remedy it. This is commonly referred to as the "notice" doctrine. In that regard, there are reported cases from New York's appellate courts stating that even where a landlord is tacitly aware of discoloration of walls, and has knowledge of previous water damage from a flood, neither constitutes "notice" of a likelihood of mold growth. Consequently, unless the owner is specifically notified of a mold condition, the claim may be subject to dismissal.

Jonathan Cooper is an attorney in private practice in New York. He represents small businesses, property owners and individuals in New York's trial and appellate courts. For more information on his firm, please visit http://www.jmcooperlaw.com

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