Using Experts to Prove Causation in Mold Litigation

From Qualifying & Attacking Expert Witnesses by Robert Clifford

Claims for personal injury and property damage based upon allegations that the injury or damage was caused by exposure to mold have increased significantly and have resulted in substantial awards and settlements. In addition to the enormous litigation expense, mold claims have the potential to cost huge sums in the inspection, investigation, abatement, remedial procedures and repairs. The prosecution and defense of mold claims are extremely expert-intensive; it is necessary to prove the existence and the toxicity of the mold,  the responsible parties and the injury or damage caused by the exposure to mold. Counsel must consider carefully the appropriate construction, medical and scientific experts. Multiple experts are generally necessary. And it is imperative to coordinate the testimony of the various experts.

The most difficult hurdle for a claimant is proving a causal connection between the existence of mold and the claimant’s injury, and whether the claimant suffered from mold toxicity as a result of a breach of duty by a defendant. Because mold is ubiquitous, the issue is not whether there is mold present, but the amount and type of the mold and its toxicity. Although jurisdictions vary as to the standards of proving causation, ordinarily to prove causation in a mold bodily injury case, the plaintiff needs to show that an exposure to a significant level of mold to which the defendant’s faulty conduct or product contributed caused the plaintiff’s injury to reasonable degree of medical certainty. If the experts’ opinion is based upon insufficient evidence of a causal connection between toxic mold exposure and the plaintiff’s injury the testimony should be excluded.

For example, in Dee v. PCS Property Management, Inc. 2009 DAR 7757 the plaintiff presented a number of experts. A physician who specialized in medical toxicology, emergency medicine and forensic medicine was presented and his proposed testimony as to a causal connection between toxic mold exposure and cancer, brain damage, reproductive harm and future birth defects was excluded because the testimony lacked foundation and was basically speculation.

The plaintiff’s next expert was also a physician who specialized in clinical toxicology and treated patients who claimed to be sick as a result of toxic exposure. He intended to testify that the plaintiff suffered from toxic encephalopathy, asthma, immune deficiencies and various other maladies. Again the court found that his proffered testimony did not satisfy the foundational requirements.

The plaintiff also presented a clinical neuropsychologist. The trial court found that he  was qualified as an expert who could testify regarding the tests he administered, the scores on the tests and whether the scores fell within  a normal range. The court concluded that there was nothing in the expert’s background that would provide him with the expertise to opine that the plaintiff’s emotional problems  directly flowed from her exposure to mold.

Bob Clifford, author of Qualifying and Attacking Expert Witnesses, resides in Carmel, California. He serves as a consultant to law firms and as an arbitrator and mediator in insurance and litigation matters. He has been the senior partner of an Oakland, California law firm where he specialized in general litigation, including real property disputes, personal injury litigation, insurance matters, contract disputes, will contests and estate matters.

Bob Clifford, author of Qualifying and Attacking Expert Witnesses, resides in Carmel, California. He serves as a consultant to law firms and as an arbitrator and mediator in insurance and litigation matters. He has been the senior partner of an Oakland, California law firm where he specialized in general litigation, including real property disputes, personal injury litigation, insurance matters, contract disputes, will contests and estate matters.

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