By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
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"This is the hottest area of toxic tort and construction defect litigation," says Robertson, who litigated his first mold case in 1994. "I've got, right now, 1,000 individuals in California that I'm representing on mold cases alone. I get a half dozen new calls a day from around the country. I take maybe 10 percent of the cases that people want me to take."
Although scientists are still struggling to understand how mold attacks the human body, Robertson says the knowledge that does exist is enough to make the issue ripe for litigation.
"It's a lot like tobacco smoke. There was a huge controversy for decades about whether it was harmful," Robertson says. "Most people accept now that there are adverse health effects to exposure to toxic mold. Then you get into exactly how sick it can make you, and that's where the battle lies."
The courts have only begun to weigh legal arguments involving the health aspects of mold, but lawyers such as Robertson are increasingly winning mold claims by focusing on more traditional areas of law. Instead of arguing science, they attempt to blame people, usually builders and their contractors, for creating a mold infestation because of faulty construction practices. Other cases focus on insurance companies, which are increasingly getting hit with allegations that they failed to pay for or adequately repair a mold infestation.
Just three years ago, the insurance industry didn't acknowledge there was a problem. At the time, a spokesman for the American Insurance Association told one industry publication that "insurance companies will not take note of [toxic mold] until they are faced with numerous losses because of it."
That attitude has changed dramatically, says John Marlow, an AIA spokesman based in Austin. Although most homeowner policies now specifically exclude mold from coverage, mold-related lawsuits are forcing the industry to pay for the problem. While it is still too early to say how much these claims cost the industry, Marlow says the escalating numbers are bad news for everyone, consumers especially.
"Only now [toxic mold] is something that's becoming an increasing concern out there because of the growing rate of litigation over the issue," Marlow says. "It is a very serious concern. Litigation is a cost of doing business. As those costs go up, premiums are going to have to go up."
Marlow, like other industry representatives, declined to provide any specific examples of how insurance carriers are attempting to address the issue. It is a subject that, given the litigation, they would rather not discuss. But Robertson says some of the companies he has successfully sued have begun to create "mold units" where they train their adjusters how to recognize routine-sounding claims, such as that the Tharps phoned in, that may really involve mold.
Besides money, the fuel that's really feeding the litigation fire is publicity. As the public awareness about mold grows, so do the number of mold-related lawsuits. In just a few weeks, the most notorious of these lawsuits is scheduled to go to trial in Texas. In that case, Melinda Ballard and her family are suing their insurance carrier, accusing it, in part, of failing to inform them about the dangers of the Stachybotrys, which ultimately drove them out of their 22-room mansion, located just west of Austin in the aptly named town of Dripping Springs. The Ballards are seeking $100 million in civil damages.
While the Cleveland babies made Stachybotrys a contested issue among state and federal health officials, the Ballards introduced the substance to the public at large. In September, the CBS news show 48 Hoursaired a two-part story called "Invisible Killers." The program, the first of its kind to air at a national level, detailed the Ballards' case, relying on sensational footage of the Ballards dressing up in space suits before entering their home. There is also footage of Ron Allison, Ballard's husband and a former investment banker, who believes the mold gave him Alzheimer-like symptoms that forced him to quit his job.
The impact of the show on the general public was immediate. At the Texas health department, Stahl says he got some 400 phone calls from people who had seen the show, many of them wanting someone from the state to inspect their homes for Stachybotrys. "I had many people call me who had been living in it for years and didn't know what was causing their health problems," Stahl says. "I actually think it was helpful because it made people more aware."
People were enlightened in other ways, too. "I literally had to hire extra people to answer the phone," attorney Robertson says. The wave of worried Americans soon reached Ballard, who has published her phone number on the Internet, where she remains an active participant in e-mail discussion groups.
"When I went public, and this is no exaggeration, I got about 20,000 phone calls," Ballard says. "I kept getting calls from people saying, 'I'm having to sue my builder [or insurer], do you know anyone who has had problems with this?' I started thinking, gee, I really need to keep a record of this."
Since then, Ballard says she has compiled a private database that today includes more than 9,000 mold-related lawsuits filed across the country, including more than 200 in Dallas and Fort Worth. Although she wouldn't give the Observer access to the database, Ballard says it consists entirely of court documents, which she verifies for their authenticity and shares with plaintiffs' attorneys. While some of the cases date back to the 1980s, most of them were filed within the last two years.