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Toxic
Mold Case In California Settles For $22 Million
by Natalie White, Staff
Writer January, 2006
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(This article was originally published in Lawyers
Weekly USA, another Dolan Media publication.)
A California family recently negotiated a landmark
$22.6 million settlement in a toxic mold case,
claiming that moldy lumber used to build their
house created a "poison prison" that
severely injured their son.
As one of the first successful mold lawsuits against
a lumber yard — and the largest to involve
a single-family home — the case should put
the lumber industry on notice, said the family's
attorney, Brian D. Witzer. "We hope this
settlement sends a signal to lumber yards nationwide
to treat mold growth issues seriously and establish
polices to protect the public's health and safety,"
Witzer said. Witzer predicted the settlement will
spur an onslaught of similar claims, saying that
mold litigation could become the "next asbestos,"
noting that his firm has handled several cases
in the last few years that have ended with settlements
of more than $1 million.
But attorneys for the defense believe the settlement
is an aberration caused by unfavorable rulings
prior to trial. The settlement was reached the
day after Los Angeles Superior Court Judge Victoria
G. Chaney excluded 10 of 17 expert witnesses for
the lumber company, because the company missed
court deadlines for witness lists and then backdated
documents, according to Witzer. In published reports
after the settlement was announced, the company
said in a statement that it believed jurors would
have "completely vindicated" it they
had been able to hear its witnesses, which included
a microbiologist and a toxicologist.
None of the 17 defendants, including the lumber
company, which agreed to pay $13 million, admitted
any wrongdoing. The other defendants in the suit
— which included the general contractor,
construction supervisor, framer, engineer, roofing
company, plumber and window installer —
agreed to pay a combined $9.6 million as part
of the settlement. Dream home turned nightmare
The Gormans contend their son, Kellen, suffered
serious neurological brain damage because of exposure
to toxic molds growing on framing studs that had
been improperly stored at Crenshaw Lumber Co.
in Gardena, Calif. The studs were used to build
the Gormans' $1.9 million home in Manhattan Beach.
The Gormans moved into their home in 1999.
Prior to that, Witzer said, the family had a spotless
health record. But soon after moving in, they
began to suffer respiratory and sinus problems.
At first the family thought the mold throughout
their home was caused by living close to the ocean
in an area of high humidity. They wiped it off
the walls and woodwork, but it kept returning.
Eventually they called an environmental company
to advise them how to get rid of the mold, and
the company told them to move out immediately.
They did not believe the situation was that serious,
however, and called another company. "Just
from their physical observations, that company
told them to get out right away, that staying
was a health hazard," Witzer said. Subsequent
testing showed that the house was contaminated
with dangerous molds.
The Gormans finally moved out after two years.
But by then, their son Kellen had suffered irreparable
damage, including brain lesions and cysts. At
age 5, he still functions as a 1 1/2 year old
and needs round-the-clock care. His two sisters,
now 7 and 3, did not suffer serious health problems.
Witzer said an MRI conducted when Kellen was 3
1/2 years old revealed the lesions and, when compared
to a problem-free MRI performed when he was 1,
clearly showed the jury that the youngster's brain
had been damaged.
The defense attempted to keep out medical testimony
regarding the child's neurological injuries, but
the judge ruled there was enough evidence to allow
jurors to hear the opinions of doctors linking
the damage to exposure to dangerous molds. Other
powerful evidence came in the form of environmental
testing and blood serum testing, which showed
high levels of exposure to molds.
Kellen's father also complained of cognitive and
neurological problems such as memory loss, which
the plaintiffs' medical experts testified is associated
with exposure to certain fungi, Witzer said. Head
in the sand?
Witzer said the owner of the lumber company testified
at trial that he did not believe the mold on the
lumber was dangerous and that the company did
not have a policy to prevent mold from growing
on its lumber. "He indicated that, yes, there
was black material on the wood prior to delivery,
but that in his opinion this was just black stains
or harmless molds," Witzer said. "This
is just inconsistent with all the scientific evidence
that is out there now."
He said Crenshaw did not follow industry recommendations
to cover lumber and keep it dry to prevent mold.
"Basically [Crenshaw] ignored the instructions
from the supplier to keep [the wood] dry, and
they just left it out in the rain," Witzer
said. "They didn't keep it raised twelve
inches off the ground and they didn't cover it.
In fact, they kept the lumber in a puddle, just
operating with their heads in the sand."
Although he believes mold litigation is poised
to take off, Witzer warned that attorneys will
have to put $250,000 or more into a case and be
willing to risk failure. He said mold cases are
typically very complicated, involving expensive
medical testing that is usually not covered by
health insurance, intensive environmental testing
and costly experts whose travel expenses add up
quickly, since many top mold authorities live
out of the country. "You have to treat it
like a poisoning case, meticulously building up
all the evidence and bringing in the top experts,"
Witzer said. "This is a potentially wonderful
area of litigation, but a toxic mold case cannot
be handled like an automobile accident case."
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