A litigation update from the law firm of Wood Smith Henning & Berman (WSHB) said that mold bodily injury claims won't turn into the “new asbestos” any time soon because of successful defense strategies, mold exclusions in policies, and plaintiffs' difficulties in proving their cases.
The assertion was made in a report released by the firm last month entitled, “Trends in Mold Bodily Injury Litigation: What Lies Ahead for this Once Emerging Tort.” It stated that in 61 percent of mold bodily injury verdicts, the plaintiffs were awarded no monetary damages. (The report did not include claims involving mold as a cause of property damage.)
WSHB said that mold claims won't achieve mass tort status like asbestos because alleged injuries differ from case to case. Whereas asbestos causes similar symptoms and injuries in affected individuals, each mold case features different injuries, different theories as to the cause of the mold growth, and different distinct injury-causing agents because there are thousands of different mold species. This means cases can't be tried in class-action format, which WSHB said is the main reason mold has not become similar to asbestos.
But it's not just litigation that is keeping mold litigation from growing exponentially. WSHB noted several studies from the Institute of Medicine and the American College of Medical Toxicology that concluded that there was not enough evidence to prove mold was toxic, and largely discredited claims of toxic injuries as a result of exposure. These studies, the law firm said, help prevent cases from progressing to verdict.
The law firm also speculated on the future of mold litigation. It predicted that other areas of the country would mirror California, which experienced early publicity and success by plaintiffs before defendants began employing successful strategies to refute such claims. It also said plaintiffs likely will focus on claims of asthma and allergies rather than more serious claims such as brain injuries or cancer, thereby reducing the monetary claim amounts.
Despite these successes, the report's authors caution defense attorneys not to rest on their laurels.
“There is now sufficient scientific evidence undermining claims of serious toxic injuries from mold, and plaintiffs face such high evidentiary hurdles, that a good defense is available in every case,” said Steve Henning and Patrick Schoenburg, partners at WSHB, in the report. “However, the failure to employ these strategies in every case allows a certain number of claims to reach juries without the strongest defense being made. And each plaintiff's verdict, even if not as frequent as predicted five years ago, encourages the filing of more cases.”
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