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2017 Mold Litigation Update – Big Dollars, Questionable Claims Reflect Continuing TrendsFebruary 13, 2017
Each year at this time, we look back at the cases, studies and other developments which have impacted mold personal injury litigation over the last twelve months. After more than a decade and a half of legal battles over which personal injuries can be attributed to mold exposure, the parties liable for those injuries, and the extent to which mold is a health risk, controversies remain.
The trends illustrated by the cases and studies highlighted in this year’s update reflect the dual nature of mold exposure issues. In a hospital setting, fungal infections among a population of immune-compromised patients can be deadly. In contrast, there still exists a cottage industry of “experts” who willingly connect any reported symptom to mold – for a price. This year’s cases also reflect the differing contexts in which mold personal injury claims can arise: occupational exposure, habitability claims in rental housing, and nosocomial infections in hospitals. Finally, several million-dollar-plus verdicts and settlements demonstrate that mold claims continue to be a serious issue for property owners, landlords, employers, and those who insure them.
Distinguishing between the serious claims and those that are subject to challenge remains as important as ever. The failure to properly handle a mold personal injury claim based on recognized medical testing can cost millions in damages. In the aggregate, paying claims without a scientific basis can cost just as much.
Occupational Exposure To Mold Leads To $1.8 Million Verdict For New Jersey Music Teacher
In what appears to be the largest single plaintiff personal injury verdict in 2016, an Essex County Superior Court judge awarded $1.8 million to a music teacher employed by the Milburn Board of Education. The teacher, Mary Jean Alsina, claimed that dripping water in her classroom lead to mold growth, stains, and seepage through the walls. Although the District tested and cleaned the classroom in response to her complaints, Alsina also alleged that the District retaliated against her.
Alsina was diagnosed with adult onset asthma and other pulmonary issues, conditions that were attributed to mold exposure by her treating physician. When these conditions persisted, despite the District’s efforts to remediate her classroom, Alsina reduced her work schedule from full time to part time, eventually limiting herself to working one day a week.
Judge Christine Farrington found in favor of Alsina, awarding her $1.8 million for medical expenses, lost wages and general damages. It is anticipated that the District will appeal the verdict.
Mold “Expert” Sent To Federal Prison
As with many trends, California led the nation when mold personal injury claims became a hot issue for plaintiff’s attorneys in the early 2000’s. Behind many of those cases was Dr. Gary J. Ordog, a physician and toxicologist who attributed a wide range of illnesses to the allegedly “toxic” effects of environmental mold exposure. Dr. Ordog treated patients in his clinic located north of Los Angeles and charged nearly $1,000 an hour to testify as an expert witness in the resulting litigation.
As scientific studies found that environmental exposure to mold in non-occupational settings only caused allergic reactions and irritation in otherwise healthy patients, Dr. Ordog persisted in offering his opinions regarding the alleged toxic effects of such exposure. Eventually, this led the California Board of Medical Quality Assurance to suspend Dr. Ordog’s license and prohibit him from acting as an expert witness.
Once reinstated, Dr. Ordog did not reform. According to an indictment filed in the United States District Court for the Central District of California, Dr. Ordog began operating a “mobile medical clinic,” where he would diagnose “patients with various toxicological symptoms, including, but not limited to, those related to various mold and chemical exposures . . . .” Dr. Ordog’s biggest mistake was to charge Medicare for these questionable services. Between 2010 and 2014, Ordog billed Medicare for $6,524,660 in services and was paid $2,573,667.
The United States Attorney alleged that Ordog’s patients were referred to him by a network that included lawyers and “counselors” for patients allegedly suffering from mold-related ailments. Dr. Ordog then overbilled or billed Medicare for services that were never provided. In some instances, services were allegedly provided to “beneficiaries who were deceased well before the dates of service.”
In early 2016, Dr. Ordog pled guilty to health care fraud. He has now been sentenced to eighteen months in federal prison.
Georgia Court of Appeals Addresses Evidence of Causation in Mold Personal Injury Context – McCarney v. PA Lex Glen, LLC
In March, the Georgia Court of Appeals addressed an issue which has been at the forefront of mold personal injury litigation: what evidence is sufficient to prove that mold exposure caused a specific injury?
The underlying facts reflect a common pattern. Plaintiff Kevin McCarney moved into an apartment unit in Sandy Springs, Georgia in 2012. In 2013, in response to comments by other tenants regarding the presence of mold at the complex, McCarney inspected the vents in his apartment and found a black substance. Plaintiff and his roommate also discovered water leaks and other problems with the HVAC system and complained to management. A mold remediation company was hired by the apartment complex to clean the unit. Plaintiff independently paid to have his unit tested. McCarney then notified the management company that he was cancelling his lease, based partly on the test results.
Earlier in his tenancy, plaintiff had suffered various sinus ailments, resulting in surgery. Those issues continued while plaintiff remained a tenant at the apartment. McCarney sued the management company for negligence, based upon these personal injuries. The trial court granted summary judgment in favor of the defendant, finding that plaintiff had insufficient evidence of causation. The Court of Appeals reversed.
The appellate court’s decision started by noting that in cases alleging personal injury due to exposure, a plaintiff must support his or her case with expert testimony demonstrating to a “reasonable possibility” that the injury was caused by the exposure. In McCarney’s case, he presented the testimony of his treating physician, an Ear, Nose and Throat specialist, that he had removed mold from plaintiff’s sinuses during the surgery. Although the physician could not state with certainty that the mold came from the apartment, when combined with the history of the illness, his opinion was that the sinus issues were linked to the tenancy. The physician specifically advised the plaintiff to leave the apartment.
The Court of Appeals noted that the opinion of the physician was bolstered by the environmental test results obtained by plaintiff, which demonstrated a comparatively high level of mold in the unit. Taken together, the appellate court found that plaintiff had presented sufficient evidence to allow his case to proceed and reversed the trial court. The case will now proceed to trial.
Mold In Military Housing Leads To $350,000 Verdict For Marine and Family
In April, a Virginia federal court jury found in favor of Marine Gunnery Sgt. Joe Federico and his wife Shelley, who alleged that their off-base housing, operated by Mid-Atlantic Military Communities, was contaminated with mold. Both claimed that they had become “extremely” sick as a result.
Attorneys for the Federicos made claims for both breach of contract and negligence per se. At trial, they asked for $8 million in damages. While the jury found for the plaintiffs on the negligence claim, they rejected the contract-based cause of action and the larger request for damages. The Federico’s attorney argued afterwards that these verdicts were inconsistent and he plans to seek post-verdict relief.
In all, nineteen families living in similar military housing in the area have filed mold claims and the issue has received publicity in the local media. We expect the issue of mold in military housing to be an ongoing story.
When The Medicine Makes You Sick – Legalization Efforts Highlight Issue of Mold In Marijuana
States across the country have legalized the use of medicinal marijuana. In regard to recreational use, a turning point likely occurred this fall, when voters in our largest state, California, joined Colorado and other jurisdictions in approving non-medicinal use of cannabis. These decisions have prompted the media to focus on the marijuana growing industry, a largely unregulated business that has numerous potential problems.
Those issues include mold. Cannabis grown in wet conditions is susceptible to mold growth. The perceived problems associated with smoking marijuana contaminated with fungus are not solely based upon anecdotal coverage in the press. In 2012, researchers with the National Aspergillosis Centre at the University Hospital of South Manchester in the United Kingdom reported on an association between long-term marijuana smoking in two patients and the development of aspergillosis. As noted by the researchers, aspergillosis is a progressively debilitating disease resulting from infection by fungi of the genus Aspergillus.
The title of the published study stands as a warning to all of those smokers newly emboldened by legalization efforts: “Too Many Mouldy Joints – Marijuana and Chronic Pulmonary Aspergillosis.” Future consumers of newly legalized marijuana, both medicinal and recreational, should be aware of this hidden health risk.
Deadly Hospital Mold Infections In Pennsylvania Lead To Lawsuits
In one of the most serious incidents involving mold personal injuries in 2016, at least five patients at the University of Pittsburgh Medical Centers were diagnosed with nosocomial fungal infections leading to their deaths. All were transplant patients. At least three of the patients had been placed in negative pressure rooms, designed to prevent a patient from transmitting infections to others, following transplant surgeries. Negative air pressure can also pull particles, including mold spores, into the rooms. This process likely contributed to the deaths at UPMC.
The federal Centers for Disease Control and Prevention was called in to investigate the outbreak. Organ transplant patients are often treated with immune system suppressive drugs to prevent rejection of the new organs. Treatment with these drugs also makes the patient particularly susceptible to systemic infections, including fungal infections.
In May, the family of one of the deceased patients settled a wrongful death lawsuit against UPMC for $1.35 million. The settlement was approved, and made public, by the Allegheny County Court of Common Pleas. Other claims are pending.
Georgia Mold “Expert” Loses Lawsuit, Faces Complaints
In November, local media reported on the dismissal of a mold exposure lawsuit that Michael Pugliese, the man behind the National Treatment Centers for Environmental Disease, had filed in Georgia State Court against his own landlord. The result was ironic. The impressively named “National Treatment Centers” has been the subject of complaints by patients to the Georgia Medical Board. The Centers For Disease Control and Prevention has found that Pugliese’s treatment protocol for mold exposure had “no scientific evidence of being beneficial” and “the potential to cause harm.”
The findings by the CDC are not surprising. Pugliese is not a licensed physician, although the website for the National Treatment Centers claims that “[t]he National Treatment Centers for Environmental Disease is the nation’s largest medical facility providing medical treatment for mold illness, mold exposure, mycotoxin poisoning, lead poisoning and other environmental exposures.” The website caused patients from across the country to pay Pugliese for his controversial treatments. These included “bowel evacuation” by eating “white rice and canned chicken white meat for 3 days” and avoiding all sugar, all gluten grains and all beans. Notably, the website lists litigation support as among the services provided.
Since the start of the mold litigation boom in the early 2000’s, a cottage industry of so-called medical and environmental experts has arisen. Many of them pushed the discredited theory that mold caused “toxic” reactions in patients. The “National Treatment Centers” clearly supports this “toxicity theory.” In explaining why most physicians can’t treat toxic mold issues, the Center’s website states:
“The reason being is that these types of poisonings are more of a toxicology problem in human health rather than a disease, they are an actual poisoning. Most MD’s are not equipped, or trained, in this area of medicine.”
In reviewing the stories in this year’s update, a key distinction should be noted between “toxicity,” which is not accepted as a known health effect of environmental mold exposure, and fungal infection, which is well supported in the medical literature. Another key difference: fungal infections are diagnosed by objective testing, including the culturing of tissue samples in a laboratory. “Toxic” mold claims have always been supported by a hodge-podge of homemade testing and the opinions of questionable experts. Let the buyer, and the jury, beware.
Wood Smith Henning & Berman’s mold defense practice is nationally known. We have tried more mold personal injury claims to verdict than any other law firm.
Our practice includes the defense of mold claims at both trial and arbitration, pre-litigation counseling, including the supervision and review of abatement and remediation projects, and consulting on mold personal injury, water and property damage issues across the country. We hope that this summary of the trends and developments of the past year helps prepare our clients and friends for what lies ahead. If you would like more information on any of the subjects mentioned in this update, or our practice in general, please feel free to contact us.