Written by attorney Aaron Matthew Kelly

Toxic Mold Litigation: What you need to know

The word mold is inherently frightening. It suggests nightmarish medical, legal, and insurance consequences. Exposure to toxic mold has been linked to a number of medical illnesses ranging from wheezing, coughing, respiratory problems, and even death. The fact that you can be exposed to toxic mold spores in your home, at work, or at your children's school is even more alarming. A toxic mold infestation can not only affect you and your family, but anything in your house from furniture to clothing.

Civil lawsuits for personal injury and property damage have become a hot button topic over the past few years. For example, an Arizona jury awarded a homeowner and his family more than $4 million for a case where the insurance carrier delayed remediating mold contamination (Hatley v. Century National). That result was not achieved easily as toxic mold claims are complex and require an attorney that will help put your life back together after it has been torn apart by toxic mold.

What is toxic mold?

Mold is everywhere. Much like the asbestos litigation that brought our nation to its knees by the media, the word mold has become front page headlines over the past few years. In truth, most molds are harmless unless you are allergic to that strain. It is a naturally occurring substance that we are exposed to every single day of our lives. Mold can exist in almost any structure, but in order for mold to grow it must have: (1) food; (2) water; (3) appropriate temperature; and (4) lack of ventilation. There are several different types of molds, however exposure to certain kinds of mold and in enough quantities can cause harm. These are called toxic molds.

Toxic mold was first identified by a scientist in Prague, Czechoslovakia in 1857. He observed that the toxic mold, which was a fungus, was growing on the inside of the wallpaper in his home. Just as it was then, the color of Toxic mold can range from black, white, orange, to brown. The texture of toxic mold varies from slimy and sticky, to fuzzy and powdery. Like other types of mold, it can occur in damp areas that lack ventilation.

Toxic mold is different from regular mold in a number of respects. First, it normally exudes a dank, musty odor. It is also different from regular mold in that it is capable of producing mycotoxins, which are organic compounds that when discharged from the mold cause an allergic reaction. Out of the 100,000 types of mold, only 100 of these are classified as "toxic" and harmful to humans. Among the types that are considered toxic, and which are the subject of most lawsuits, are:

  • Stachybotrys chartarum or Stachybotrys atra
  • Aspergillus
  • Penicillium

The most common toxic mold encountered in lawsuits is Stachybotrys (pronounced "Stack-ee-boa-trus"), or sometimes referred to as "black mold". It usually occurs when a structure has water problems or leaks, including broken or improperly installed plumbing, flooding, foundation or roof leaks, and other water intrusions. These structures, combined with the other elements mold needs to grow, can act as a "green house" for mold spores. Exposure to these spores is usually not the catalyst for the injury, rather it is the exposure to the mycotoxins that are released by the mold spores. Once mycotoxins are inhaled, ingested, or touched they enter the body and wreak havoc on respiratory system. So while some say that their illness is caused by exposure to toxic mold, it is the exposure to the toxic mold mycotoxins that gives rise to litigation.

Toxic mold can present serious, even dire, consequences to the human immune and respiratory system. Scientists do not know the full range of adverse medical affects that toxic mold has on people, but the most severe reactions seem to be caused by the elderly and infants. Not all people that are exposed to toxic mold mycotoxins become symptomatic or ill. Those that do, however, can suffer a myriad of medical illnesses that range from the mild: itchy water eyes, coughing, wheezing, allergy/flu type symptoms, to the more severe: memory loss, migraines, hypersensitivity pneumonitis, pulmonary hemorrhage, and death. If a person is experiencing these symptoms and has sufficient belief it is due to mold, they should immediately consult their doctor.

These symptoms are present when the mycotoxin is released and becomes lodged in the respiratory system. The soft tissues around the nose, mouth, trachea, and lungs are extremely vulnerable to mycotoxin contamination. This is why you will always see anyone handling mold with some type of external breathing apparatus. Once absorbed, these toxins become lodged in the internal organs, causing the person to normally experience an allergic reaction or infection.

Can toxic mold damage property?

In addition to the illness to humans, the mycotoxins also cause a significant amount of property damage. As mentioned above, mold favors growth in indoor environments, which can virtually be any type of resident or commercial building.

Once inside, Toxic mold can contaminate anything in the surrounding area including clothing, furniture, and works of art. Once contaminated, these items usually have to be destroyed. Building materials and fixtures also prove as fertile ground for mold to grow. Wet cellulose materials, including paper and paper products including ceiling tile, wood, and wallpaper are conducive to mold growth. Walls, floors, ceilings, windows, and any other structure that has come in contact generally must also be physically removed and replaced, which is a process called remediation. As one can guess, this is quite costly.

As previously mentioned, toxic mold needs four basic things to grow: (1) water; (2) food; (3) appropriate temperature; and (4) lack of ventilation. One would think that the most vulnerable areas for toxic mold growth would be older buildings, but it is actually the opposite. New homes are said to be more susceptible to mold than homes constructed over 30 years ago. The trend for new home and building construction has been to build airtight buildings to trap heat and air, thus encouraging energy efficiency. This, however, also increases the potential for the presence of toxic mold.

Certain kind of building materials like synthetic stucco, which is common in Arizona, also serves as a breeding ground for mold as it is more prone to water penetration and retention. In effect, once water gets trapped inside of the home the building material, coupled with the lack of ventilation and constant temperate, create an environment that breeds and feeds the mold.

Toxic Mold Litigation

Toxic mold litigation is very time consuming and very expert-intensive. Toxic molds cases are a hybrid of several areas of the law including: (1) construction law; (2) personal injury law; (3) contract law; and (4) insurance law. When looking at a toxic mold case, an attorney; should determine: (1) the person has suffered bodily injury or property damage; (2) that damage was the result of exposure to toxic mold; (3) that a person or insurance coverage is liable for the damages caused by the toxic mold.

The fact that property can be damaged due to toxic mold exposure is widely accepted. The most problematic aspect of a toxic mold case is the causal link between the exposure to toxic mold and the injury claimed. This causal link must be established early on, and thus mold cases are very fact driven. The facts must be very specific and normally must also be proven through expert testimony as to the standard of care in the handling of the elements that caused the toxic mold growth.

If you have found an experienced toxic mold litigation attorney, you should come to your initial consultation;prepared to answer several basic questions. As far as recovery goes, in most cases when a plaintiff has been exposed to toxic mold they are usually seeking money damages including payment for past and future medical bills, mental anguish, pain and suffering, as well as any property damage. To recover these damages most toxic mold cases proceed on several theories of liability including breach of contract, negligence, fraud, breach of warranty, and bad faith.

Toxic Mold Litigation - Challenges to overcome

By and large the highest hurdle to overcome for a plaintiff in a toxic mold case is a challenge by the defendants as to the causal link between the exposure of toxic mold and the plaintiffs' illness. To prove causation, a plaintiff must show that toxic mold in a particular location for a particular period of time can cause the type of illness or injuries alleged (general causation), as well as proof that the toxic mold actually did cause the injuries claimed (specific causation). This is not as easy as it sounds.

Since the causal link between exposure and damage must be determined by expert opinion, the Defendant will attempt to break the link by challenging the admissibility of the opinions. Although there are two common tests to determine admissibility of the expert opinion, Arizona has recently adopted the "Daubert" standard, which comes from the 1992 United States Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. According to the Daubert standard, any medical or scientific opinions must be reviewed by the Judge as the "gatekeeper" and they will decide whether the evidence is admissible. The trial judge, in determining the admissibility of the evidence, will look to keep out unreliable expert testimony, and ensure that the expert's testimony rests on reliable foundation and is relevant to the case.


Mold truly is a four letter word. It has struck fear into the hearts of homeowners and insurance companies alike. Although the "mold epidemic" has been overblown by the media, for those having been exposed to toxic mold the dangers are truly great. Don't fight these dangers without an experienced toxic mold litigationattorney in your corner.

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