In-Depth Mold Information
The Law Offices of John S. Wessler provides specialized legal assistance to clients with toxic mold problems. Indoor air contaminated with mold can cause personal Injuries and property damage. These often result in legal problems.
We have experience with and knowledge about the medical, testing, remediation, insurance and cost issues that come from a mold contamination problem. We understand the range of possible medical harms caused by mold (keeping abreast of the most current medical evidence about mold and health), appropriate methods of testing for mold (mycology testing), how to decontaminate a living space of mold (remediation), and how to make responsible third parties, whether they are landlords, builders, contractors, condominium associations, home sellers, real estate brokers, home inspectors or insurance companies (who to sue), pay for the costs of mold remediation and other damages arising out of negligence or contract violations (Health and property damage).
It can be difficult to know what to do when faced with a mold problem. Do you even need a lawyer? Mold raises questions, problems and concerns even if you are healthy. If the mold is affecting your health, It becomes only more difficult to know what to do. We can help.
The Firm’s experience In toxic mold litigation has grown out of its long-established history of representing children injured by exposure to lead paint, and tenants and home owners experiencing health code or construction problems with their apartments, condominium units and homes. Although this portion of the site is designed primarily for people facing potential toxic mold litigation, the Firm provides representation in a wide array of areas involving personal injury and tenant’s rights.
INDOOR MOLD CONTAMINATION
The presence of mold spores in the indoor environment is not in itself a problem when the source is the normal interchange of outside air, and the amount and types of spores inside are similar in type and amount to those outside. However, mold actively growing indoors may affect the quality of the environment by potentially adding unhealthy mold spores to the indoor air. Higher levels of mold spores inside than outside or the presence of different species inside than outside reflect the “amplification” of mold. In determining whether there is indoor mold contamination in a building, it is important to assess both the amount of mold spores (measured as Colony Forming Units [CFUs]/cubic meter) and the types of molds. These are then compared to the quantity and type of molds found outside (the control). If the inside amount is significantly higher, or the types are different than those found outside, there is likely mold amplification, and a potential problem. Normally, people should not see or smell mold or mildew in their indoor spaces. A moldy odor or visible evidence of mold colonies or mildew on materials indicates the presence of mold. However, mold may be present even if not smelled or seen. Mold is often hidden in wall cavities behind sheetrock. The musty smell that is associated with mold is caused by microbial volatile organic compounds (MVOCs), which are emitted by the mold spores.
There are no established quantifiable levels for what constitutes a safe as opposed to an unhealthy or dangerous level of indoor mold. In part, this is because molds affect different individuals differently, depending on one’s degree of sensitivity to mold. Individuals with asthma are at increased risk for exacerbations of their asthma, whether or not they are allergic to mold. There is evidence that mold can cause asthma in previously asthma-free individuals, particularly children. It is not unusual for different members of a family occupying the same living space to experience vastly different reactions to mold contamination.
In New England, the most common molds that become amplified as a result of indoor water intrusions are Aspergillus, Penicillium, Cladosporium and Stachybotrys. These molds are known allergens, and when they are found indoors at higher levels than outdoors, are a strong sign of indoor water intrusion and indoor mold amplification.
Because it is mold spores in the air that we react to through inhalation or smell, we unreflexively think that the best indicator of harmful molds is an air sample. Air samples are helpful. A positive air test is strong evidence that there is respirable mold in the air. The problem with air testing, however, is that it can easily yield false negative results because an air sample captures air spores that become trapped during a very short period of time. Air currents within a home, and merely the presence of people walking in a room, can influence the amount of mold spores in the air. An air sample test is a momentary snapshot of the air in one location at one particular time. Because air currents in buildings are constantly moving, airborne mold spore levels fluctuate. This suggests that a positive air test is highly probative of indoor air amplification, while a negative sample does not strongly correlate with a conclusion of no indoor mold amplification. In addition, while air tests can provide a useful snapshot of a moment in time, they cannot provide an accurate measure of the amount of exposure over time. There are few medical studies that have evaluated the effects of low level mold exposure over an extended period of time.
Surface mold that has not yet become airborne is a hazard because the spores, when dry and disturbed by air currents, can become respirable. Thus surface mold is a reservoir of potential inhalants that can be released at indeterminate intervals over a period of time.
MOLD AND HEALTH
It is generally recognized that mold can cause hay-fever like allergic symptoms in individuals, even if they are not allergic to mold. These symptoms can be caused by irritation caused by mold exposure, or by an allergic reaction. It is also generally accepted that mold can affect individuals with chronic respiratory problems such as asthma or COPD. Common symptoms include wheezing, coughing, rhinitis, sinusitis, coughing, headache, fatigue, asthmatic symptoms and upper respiratory symptoms, along with hypersensitivity pneumonitis. Many allergists also believe that mold exposure can cause asthma in individuals who did not previously have asthma prior to their mold exposure. Individuals with immune suppression may be at increased risk for infection arising from mold exposure.
If you believe you are experiencing respiratory problems that may have been caused by or made worse by mold exposure, it is strongly recommended that you see an allergy and asthma specialist. These doctors understand that mold can have a significant impact on health, and can perform appropriate skin testing and intradermal testing to determine your allergic sensitivity to particular molds. If you know your allergic status with respect to particular molds, and you know the particular types of mold that are amplified in your home, then you are in a stronger position to demand that the individual or entity responsible for the mold contamination remediate the mold.
Much of the controversy over the health effects of mold has been generated by statements from various organizations downplaying the effects of mold exposure. Unfortunately, some of the research upon which these statements are based is derived from “research” authored by individuals who have a record of testifying for or working against plaintiffs in mold lawsuits. It is disturbing that respected medical and governmental organizations have allowed their position papers on mold science and medicine to be heavily influenced by individuals with a vested interest in minimizing the connections between mold exposure and poor health.
Remediation is the process of removing or inactivating biological contaminants in an occupied structure so that they no long represent a significant threat to human health or safety. The mold investigator who does the initial air and surface sampling should set forth the remediation protocol in his or her report. A qualified and experienced remediation contractor will contain the affected area and use negative air to prevent cross-contamination. Once the building has been remediated, clearance testing should be performed by the same mold tester who performed the initial investigation. After the building passes a clearance test, rebuilding can begin.
There are no regulations governing how to remove mold. There is a general consensus regarding remediation, however, that is found in the Institute of Inspection, Cleaning and Restoration Certification (IICRC) Standard and Reference Guide for Professional Mold Remediation S520. Perhaps the most significant rules of thumb are that most mold-contaminated building materials should be removed rather than cleaned, the removal of affected materials should be done by professional remediation companies, that a containment barrier should be erected between the contaminated work area and the remainder of the property in order to avoid cross contamination, and the sources of water intrusion must be mitigated first before the mold-contaminated materials are removed. If the underlying sources of moisture are not controlled, mold will continue to grow despite removal of contaminated material.
Mold remediation can be approached in a three-step process. (1) Mitigate moisture incursion into the home by abating leaks and moisture migration into the building envelope (roof, walls, floors and basement) and leaks from the building’s plumbing system, and ensure that HVAC system drip pans are clean and unobstructed. (2) Maintain low indoor humidity. The relative humidity should be below 60%, and ideally between 30 and 50%. (3) Clean or remove mold damaged building materials, furnishings and other items. Porous material should be removed and discarded (e.g. water damaged ceiling tiles and mattresses). In some cases, restoration and water damage professionals can clean valuable porous items such as books or upholstered furnishings. Mold found on non-porous building materials (bathroom tubs, between tiles) can be cleaned with water and detergent.
RESPONSIBILITY FOR MOLD REMEDIATION AND LIABILITY FOR DAMAGES
Landlords: Landlords are responsible for maintaining rental property in compliance with the warranty of habitability. The Massachusetts State Sanitary Code requires that a landlord maintain housing free from “chronic dampness”, which is defined as the regular and/or periodic appearance of moisture, water, mold or fungi. A landlord is supposed to maintain structural elements (foundation, floors, walls, ceilings, roof, etc) free from chronic dampness.
Condominium Associations: Associations of unit owners are responsible for maintaining common areas. Unit owners will generally be responsible for cleaning mold from within the interior of their condominium unit, unless they can prove that the mold is caused by water intruding from common area space. Common areas and unit areas are determined by reference to the Master Deed. In order to determine where responsibility lies, it is necessary to carefully review the condominium documents. Unit owners may bring a nuisance claim against an association of unit owners if water intrusion from a common area is affecting a particular unit.
Homeowners: Homeowners have claims against numerous potentially responsible parties: sellers, real estate brokers, home inspectors, contractors, mold remediators, and insurance companies. With respect to sellers, traditional concepts of misrepresentation will apply. In Massachusetts, this means that “bare nondisclosure” is non-actionable. Home inspectors are subject to detailed regulations that establish minimum standards of practice. Home inspectors are required to tell a prospective home purchaser that the buyer should ask their seller whether there is a history of water penetration in the basement or crawl space, and whether there has been a previous inspection.
Remediation and Property Damage: Structural damages may include the cost of initial mold assessment and testing, mold remediation, clearance testing, rebuilding and consequential damages such as loss of use, and alternative living expenses incurred while unable to occupy the mold-contaminated home. Some personal property can be cleaned, some cannot. Generally, hard surfaces can be cleaned but soft or porous surfaces cannot. Porous items include padded or upholstered items, and paper goods. Semi-porous items include unfinished wood and masonry. Non-porous items include finished wood, glass, metal and plastic. Often the effectiveness of cleaning will depend on the degree of allergic susceptibility that an individual has to mold.
Personal Injuries: It is generally accepted that there is strong evidence that significant disease can result from dampness and mold in the home or workplace. Common health symptoms associated with mold exposure include respiratory symptoms, headache, fatigue, and recurrent infections. Exposure to mold is associated with exacerbation of asthma. There is evidence that molds do not merely cause exacerbations of pre-existing asthma, but can actually initiate asthma onset in individuals not previously diagnosed with asthma. About 10% of the population has allergic reactions to mold, and 5% would be expected to show clinical illness. In addition, patients present with a broad array of possible “toxic effects” that include cognitive deficits and digestive system problems that maybe associated with mold exposure. In order to determine whether an individual has health problems related to mold, it is imperative to have the person tested by an allergist. The allergist should perform skin prick tests, intradermal tests and RAST (radioallergosorbent test) for the specific molds found in the housing unit. It is not uncommon for someone to react positively on one of these tests but negatively on the others.
Our law firm has the experience and knowledge to represent anyone who has been affected by toxic mold. We are happy to provide free initial assistance through a telephone consultation, email communication, or appointment.
John S. Wessler is one attorney. Sometimes that is all your case requires. Other times you may need a number of lawyers to provide assistance in many of numerous potential aspects of your case. The Firm works with other lawyers, physicians, mold testers, environmental companies and remediators as your case requires. We will help you find the right people. Often they are local, but we have used experts from all parts of the country when appropriate. But at all times John Wessler will be your attorney, and he does return phone calls.
While the firm will represent people in any area of the country with assistance from local counsel, our primary geographical areas of practice are the states of Massachusetts and New Hampshire, including the counties of, Essex, Middlesex, Bristol, Norfolk, Plymouth, Suffolk, Worcester, Rockingham County in New Hampshire, the entirety of eastern Massachusetts, all of the surrounding areas, and the Merrimack Valley, stretching from Lowell to Lawrence to Haverhill to Newburyport.