Commercial PropertyCourt Rejects Expert Mold Testimony
More often than is widely acknowledged, courts come up with good and sensible rulings. When that happens, we do well to acknowledge them. In the case of Dee v. PCS Property Management, California"s Second Appellate District Court of Appeal affirmed the good ruling of a trial judge. Inasmuch as the case had to do with claims regarding mold, it is of more than a little interest to a variety of parties involved with real estate.
The plaintiff, Darcee Dee, lived in a Los Angeles apartment from January 18, 2001 until June 1 of the same year. The property was managed by PCS Property Management, L.L.C. When she moved into the apartment, Ms. Dee noticed stains on the carpet and around the doorframe. Shortly thereafter she began to experience various health effects "including dizziness, fatigue, diarrhea, vomiting, bloody nose, migraines, itchiness, redness on her feet and hands, confusion, chills, depression, hair loss, stomach, back, head and neck aches, and the absence of menstruation." She also had problems with "breathing, tightness in her chest, excessive heartburn, burning skin, food sensitivities, hives, and eye infections."
After several meetings between Ms. Dee and PCS employees, testing was done by Scope Laboratories on May 14, 2001. The test found stachybotrys, a type of mold capable of producing mycotoxins. Ms. Dee moved out on June 1. Further tests by another company confirmed the presence of other types of mold as well. A lawsuit was filed.
As is common in these kinds of cases, the plaintiff had experts to testify as to her condition(s) and how they were caused by the mold that had been allowed to grow in and near her apartment. But the defense filed motions to exclude both test results and the testimony regarding the cause(s) of her ailments.
A full rehash of the testimony, arguments, and legal principles would be beyond the capacity of the space allotted here. But the basic facts are these: "Mold is a fungus which is essentially everywhere. Almost every breath we take contains mold spores." (That the appellate court"s discussion began with this quote might have given a pretty good hint at the direction in which it was going.) Molds themselves – even toxic molds – don"t cause illness and reactions. Reactions are caused by mycotoxins which, under certain conditions, may be produced by the molds.
The presence of mycotoxins was not detected by the tests, only the presence of molds. That mycotoxins were present was inferred from the results of specialized blood and other tests which were alleged to show that Ms. Dee had been exposed to mycotoxins. However, the court noted that "the only laboratory in the world that does this testing is [the doctor"s]. The work is not generally accepted in the relevant medical community as being capable of identifying exposure to mycotoxins." Because of that, the test results did not meet the legal requirements for admissibility as evidence.
Further, the court excluded the testimony of the physicians who attributed the plaintiff"s various ailments to exposure to mycotoxins caused by mold. Lacking "sufficient evidence of a causal connection" between Ms. Dee"s problems and exposure to mycotoxins, the trial judge opined that "what I heard was in the main speculation." The appellate court agreed, observing that "an expert"s opinion that something could be true if certain assumed facts are true, without any foundation for concluding those assumed facts exist … does not provide any assistance to the jury."
The ultimate result: Not only did the jury trial find on behalf of the defendants, but also the plaintiff was ordered to pay their court costs – slightly north of $330,000. The appellate court affirmed the trial court"s decision.
I certainly do not make light of the very real suffering that can be caused by exposure to mold-produced mycotoxins. But it"s nice to know that courts and juries won"t be overwhelmed by whatever so-called "experts" may have to say.