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For Some Lawyers, Mold Is Gold
Toxic troubles translate into millions of dollars for a practice that's bound to grow
A colleague describes Alexander Robertson IV as someone who is "building his practice on mold."
"But," he adds, "the foundation is solid."
Robertson , a plaintiffs lawyer in Woodland Hills, Calif., doesn't deny it. In seven years, toxic mold litigation has earned "multimillions" for his firm and at least one famous client, Erin Brockovich. The namesake of the 2000 Julia Roberts movie is suing the builder of her California home for water leaks she alleges have created a mold problem.
How many cases does Robertson have right now?
"Thousands—I don't want to count them," he says.
Bigger Than Asbestos
The practice area is growing rapidly. In the past decade, attorneys have won million-dollar tox ic mold verdicts in Texas, Delaware and California. Some predict the practice will surpass asbestos matters in terms of case volume and value.
"The use of asbestos isn't occurring anymore, and most of the asbestos products were done away with," Robertson says. "With mold, it's naturally occurring, and the supply is endless."
Plaintiffs lawyer Guy Keith Vann of New York City represents two Delaware women who won a $1 million toxic-mold verdict in 1999. In May, the Delaware Supreme Court upheld the award. At this point, Vann says, it is the only toxic mold verdict that's been upheld in a state supreme court. New Haverford Partnership v. Elizabeth Stroot 772 A.2d 792 (Del. 1999).
"I've learned these can be terrific cases from the plaintiff's perspective, in terms of the percentage of cases that turn into money vs. cases that don't," Vann says.
"We've probably settled more than 60 of these, and I think three, at most, have gone down the tubes," he says.
Claims that have seven-figure potential generally involve three strains of toxic mold—stachybotrys, aspergill us and penicillium. "I call them the bad boys," Robertson says.
Plaintiffs argue that these fungi cause ailments such as asthma, short-term memory loss and nausea. The bad boys only grow in conjunction with long-term water damage, Vann says, which helps determine liability. "This stuff isn't in the building unless there's been long-term negligence," he says.
Exposure to these molds also causes a buildup of antibodies in the bloodstream, Vann says. "If environmental testing of the premises shows high levels of [toxic mold], and antibody marker studies show excessively high levels of antibodies for all of those three, you can objectively and conclusively prove exposure," he says. "You can't do that in most other kinds of exposure cases, other than lead."
Claims involving adult-onset asthma or cognitive functions such as short-term memory loss can be lucrative, Vann adds. He generally avoids cases with claims that are harder to prove, such as chronic fatigue syndrome and fibromyalgia, which is characterized by muscle pain.
John A. Marshall, an insurance-defense lawyer in Calabasas, Calif., estimates he's handled 20 toxic mold cases in the past three years. He says 97 percent settle, and that plaintiffs' symptoms generally disappear after they leave their moldy houses.
"One of the problems that we have is that there are not a great deal of reported decisions, and the settlements are confidential, so you don't really get a clear evaluation of the case," he says.
Science Must Catch Up
Unlike Vann, Marshall does not believe that scientific evidence in toxic mold litigation is established.
"It's a little like the Wild West right now," he says. "I think within five years, we will have a body of research and knowledge that will allow us to sufficiently look at a case, establish causation and value, and know what a plaintiff's prognosis is."