A risk to building contractors.

Frankenstein, Dracula and the Bogeyman don't scare anyone in our enlightened 21st century. The blood-curdling monsters of today bear names like Stachybotrys, Aspergillus, Chaetomium and Pennicillium. Don't worry about pronouncing them. They go under the simpler terms of fungus or mold. They are denizens of hell that get conjured up throughout the land by high priests of black magic, otherwise known as trial lawyers.

Toxic mold litigation is one of the hottest scams going in America today. That's where homeowners and commercial building tenants, egged on by the aforementioned sorcerers, sue everyone in sight over real or imagined ailments induced by mold growth resulting from moisture in confined spaces. All that's needed to enact a massive redistribution of wealth from hard-working folks to our society's burgeoning victimization class is a sick person, a slick lawyer, one of those “experts” whose main contribution to medical science is testifying in court, and a gullible jury.

Attorneys frequently file these lawsuits in handpicked rural counties far removed from the site of the alleged injuries. They do so to benefit from a jury pool of citizens whose demographics predispose them to hostility toward the business world. In this kind of civil litigation, it is not necessary for the trial lawyer to prove a case beyond reasonable doubt. All s/he needs to do is concoct a heart-rendering story of mold infection for juries who are primed to stick up for the little guy against corporations, and who tend not to be very well versed in the finer points of science and logic.

Researching this issue leaves one feeling transported back in time to around the year 1000 A.D., when maladies of every kind could be attributed to evil spirits and witchcraft. The medical facts presented to juries about mold contamination have a similar clarity about them. Headaches, sniffles, rashes, aches and pains, along with more serious ailments, all get attributed to mold contamination, and who's to say it can't be true, because it's impossible to prove a negative. Toxic mold litigation is about tugging the heartstrings more than establishing cause and effect.

Facts, Not Fiction

Almost everyone gets exposed to mold in the home or at work from time to time. The reason we aren't all keeling over is because not all strains are toxic, and casual exposure even to toxic strains can be shrugged off by the average person. A tiny percentage of people have allergies that may cause them to get seriously ill from exposure to certain strains of mold, and they form the litigant pool. At least they did at first. As with asbestos, the caseload has expanded to encompass not only people with ailments, but class action quests on behalf of everyone who gets exposed to mold, whether they get sick or not.

It's right to feel compassion for folks afflicted with mold allergies, but does fairness demand millions of dollars in compensation for contamination of uncertain origin? Some people suffer life-threatening reactions to peanuts or other common household substances. These people have to take precautions to avoid exposure to the allergen. Yet, would it make sense to sue everyone who makes and sells peanuts? (Hope I'm not giving anyone ideas here.) Besides, all strains of mold - toxic or not - can be removed by combining bleachy household cleansers with a little elbow grease.

I know this from personal experience. Several times a year, my wife gets out a spray bottle of nasty-

smelling disinfectant and points me toward our bathroom. The next time she messes with me when there's a football game on, I just might sue her for recklessly exposing me to the spores from hell. I have not the slightest doubt I can find some panting litigator to represent me.

Scientific Support

Until recently, medical literature was sparse about the impact of toxic mold because, understandably, household mold was not a high research priority. However, last May, the Institute of Medicine of the National Academies of Science published a 281-page study that is the most definitive look thus far at the toxic mold issue. A major conclusion was that the health hazards of household mold indeed have been exaggerated.

The study found that mold can contribute to some respiratory ailments, particularly for people with asthma, but uncovered no evidence at all to support lurid claims of memory loss, fatigue, seizures, fever, skin conditions and other horror stories perpetrated by the ambulance-chasers and their clients in so many lawsuits.

This study was widely reported, but it was disheartening to see the spin put on the story by most of the news media. Of several accounts I read, the May 26, 2004 issue of the Chicago Tribune was the only one to get it right with a front-page headline and subhead that stated: “Mold tied to trouble breathing, little else; Study finds no link to many ailments.”

A different twist was put on it by an Associated Press story headlined: “Mold Blamed for Breathing Problems, Panel Says.” The Wall Street Journal also chose to emphasize the negative with an article titled: “Indoor Mold Linked to Problems Such as Asthma and Coughing.”

Any editor worthy of the term knows that a headline trumps thousands of words of follow-up copy when it comes to forming lasting impressions. Moreover, the articles themselves displayed the usual journalistic tendency to sensationalize health-related news.

Summary is the essence of journalism. Nobody outside of the medical community cares to read the full 281-page study, so it's a reporter's job to pick out the most pertinent details and put them in their proper context. Most reporting of this story chose to emphasize mold's minor complicity in breathing ailments, while downplaying the study's larger message in debunking toxic mold hysteria.

The Tribune quoted one of the researchers as saying: “The consequences of being exposed to toxic mold have largely been overstated.” The other articles avoided that quote and gave top play instead to statements about mold's secondary connection to respiratory problems. They also made sure to quote participants reciting the standard boilerplate that still more research needs to be done.

More research always is welcome, of course. However, let's not miss a crucial point. We could invest the entire wealth of our nation studying toxic mold and never conclusively determine how much of a health hazard it represents.

That's because it is logically impossible to prove a negative. Nobody can ever certify to everyone's satisfaction that household mold does NOT cause severe toxic reactions. The Tribune article, for instance, noted that researchers haven't been able to sort out the effects of mold in combination with various other household agents. Moreover, according to the newspaper, “there are hundreds of thousands of different kinds of mold, each with its own characteristics and ability to produce different toxins under different conditions.”

It would take virtually an infinite number of experiments to investigate the interaction of all those mold species, agents and conditions. Faced with such absurdity, science must give way to common sense. The onus should not be on medical researchers to prove mold is not extremely toxic, but placed on trial lawyers and their plaintiffs to contradict the Institute of Medicine study and prove that mold is as harmful as they claim it is.

Contractors at Risk

Toxic mold has become an ingredient in the soup of construction-defect litigation that has been a favorite of the trial bar for a couple of decades. This is not to say some builders don't deserve to be sued. It is to say that the structure hasn't been built that doesn't have molehills of imperfections that can be made mountain-sized by a forked-tongued attorney. So crass have they become that in parts of the country, particularly out West, builders and subcontractors now have trouble obtaining liability insurance at any price for residential construction. And most liability policies nowadays have exclusions for mold contamination.

Architects, engineers, builders, GCs and subcontractors from various trades, along with manufacturers, suppliers and of course, the insurers, typically get named in these lawsuits as fingers point every which way. In the case of moisture, it's often impossible to pinpoint the source or apportion blame among building products, design, installation flaws or simply poor housekeeping.

One would think that if your products and workmanship don't cause leaks, you ought to be immune to toxic mold and construction defect lawsuits. Don't bet on it. Lawyers are trained to bend truth, justice and the laws of nature into unrecognizable shapes. Ironically, mold growth can be enhanced not necessarily by poor construction, but by work done right to provide an airtight, energy-saving indoor environment. Ventilation tends to inhibit mold development.

There may be some good news on the horizon. I've read about a couple of mold lawsuits in California actually being won by the defendants. How nice to know that common sense at least occasionally trumps legalistic flim-flam.

What this country needs is an epidemic of common sense.
ND