Timothy R. Hughes, is the principal of the Northern Virginia law firm of Hughes & Associates, P.L.L.C.. He specializes in construction litigation, corporate and business related representation, and complex civil litigation. He may be reached at tim@hughesnassociates.com or (703) 671-8200.
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A Case of Mixed Messages
Plaintiffs face a significant hurdle finding the right medical professional who can credibly opine regarding causation of mold-based personal injury cases.
by Timothy R. Hughes
A recent case offers a mixed message regarding the risk of mold claims in the Commonwealth of Virginia. On the positive side for builders, design professionals, and developers, the trial judge ruled that the plaintiff could not recover personal injury damages associated with mold. On the negative side, this ruling occurred after the case went to a jury and the jury returned a sizeable verdict. As such, while this case provides some comfort that mold related personal injury claims are difficult to prove in Virginia, there is also the clear indication that the wrong jury may give extensive damages for such claims if they survive to verdict.
Background Facts and Posture
The plaintiffs, Thomas and Rose Odaris, filed suit against the manager of their apartment building in Richmond Circuit Court. After the plaintiffs complained about mold growth in their apartment, a maintenance worker attempted to remove the mold but it allegedly returned. Several more attempts at removal failed to remedy the problem. The plaintiffs alleged the property manager never fixed the source of moisture penetration which meant the mold was bound to return.
The plaintiffs claimed they became ill at the apartment, including having headaches, coughing, runny noses, respiratory problems and fatigue. They eventually left the apartment placing their belongings into basement storage and moving out of the area. While their condition improved after leaving, they claimed they never got completely better. They sought treatment with Dr. Richard Shoemaker, a Maryland doctor, who prescribed a drug typically used for high cholesterol levels which he claims is effective in treating persons suffering symptoms from exposure to “toxic mold”.
Testimony of the Experts
At trial, the plaintiffs called Dr. Richard Lipsey. The court allowed Dr. Lipsey to testify generally as a toxicologist regarding mold and its nature. The plaintiffs also attempted to call Dr. Shoemaker as a treating physician and to opine regarding causation of their alleged damages. The court found that Dr. Shoemaker’s use of cholesterol medication had not been approved by the FDA, but was only permitted on an experimental basis. In addition, the court found that Dr. Shoemaker’s diagnosis of “chronic biotoxin associated illness” due to mold exposure was not commonly accepted or recognized in the medical community as a distinct entity and treatment.” Finding a lack of proper expert foundation for Dr. Shoemaker’s opinions, the court barred his testimony entirely.
Verdict and its Aftermath
The jury returned a verdict in the amount of $760,000 for personal injuries and $20,000 in property damage to the plaintiffs. On post trial motions, the court set the $760,000 personal injury component of the verdict aside. The court left the $20,000 property damage award intact. The court held there was no testimony demonstrating a causal link between the alleged medical damages suffered and the mold exposure claimed in the case. The toxicologist’s testimony failed to demonstrate the specific causal link required. Without this critical element, the plaintiffs’ entire case failed to demonstrate causation and there was no causation evidence to support the personal injury verdict.
Lessons Learned
Plaintiffs face a significant hurdle finding the right medical professional who can credibly opine regarding causation in mold based personal injury cases. In both this case and a similar case in federal court a few years ago, Roche v. Lincoln Properties, the plaintiffs’ case failed on this critical hurdle of medical causation and admissibility. It should be emphasized that introduction of evidence, including expert testimony, is largely a matter of discretion of the trial judge. It should also be noted that the rulings of one state may not apply in other jurisdictions. Nevertheless, a consistent theme of personal injury claims involving mold is the struggle that plaintiffs face in getting their medical evidence over the basic threshold of admissibility. Absent crossing this initial line, the plaintiffs’ medical case is bound to fail.
Despite the defendant’s success in defeating the personal injury claims, the case is yet another cautionary tale of the potential damages awardable in a mold personal injury case. The general public has been inundated with tales of “toxic mold” and some juries appear to innately believe such claims and damages regardless of even an utter lack medical proof of causation like this case. The plaintiffs here claimed cold and flu-like symptoms with no causation testimony and the jury still awarded them $760,000. As such, the other side of the mixed message is that you still should be extremely wary in protecting against water infiltration in general. In addition, you should still promptly respond and correct any condition that leads to mold growth.
Timothy R. Hughes, is the principal of the Northern Virginia law firm of Hughes & Associates, P.L.L.C.. He specializes in construction litigation, corporate and business related representation, and complex civil litigation. He may be reached at tim@hughesnassociates.com or (703) 671-8200.
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