Risk Alert – Toxic Mold Litigation
A recent decision in New York State Supreme Court with regard to bodily injury claims from mold exposure appears to have reopened opportunities for increased “toxic mold” litigation (Cornell v 360 W. 51st Realty, LLC).
Previously, cases of injury from mold exposure were very difficult to pursue due to the lack of definitive dose response data – there are no consistent “mold levels” that can be tied to specific health effects, and expert testimony often could not meet the standards for a valid scientific basis (i.e., under Frye and/or Daubert). However, the Cornell decision in part, relied upon previous case law asserting that there is not necessarily a requirement to precisely quantify exposure levels or a dose response relationship. The chronic water intrusion in the plaintiff’s building and mold test data that merely indicated the presence of mold were judged to be sufficient evidence of the plaintiff’s health problems.
In addition to mold, this may have additional far-reaching implications relative to other common potentially hazardous environmental conditions – asbestos and lead-containing paint being the most common. Both are common components of many buildings constructed prior to 1970, and Cornell would suggest that building owners, managers, and contractors working in these structures thoroughly characterize existing conditions. Similarly, the face that Cornell appears to place potentially liable parties in the position of proving they did not create an exposure, imposes a potential additional burden of due diligence and environmental monitoring.
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WCD Group, LLC is a national group of firms providing risk management and insurance consulting and forensic engineering on environmental, property, and construction defects projects and losses to insurance carriers, property owners, contractors, their lenders and their attorneys.