First, there are the obvious reasons, such as bringing suit or defending against suit in an extremely specialized scientific and legal arena where a seasoned mold attorney becomes part scientist, part physician, as well as legal tactician in effectively prosecuting or defending mold claims. When mold litigation is on the horizon, there are a litany of potential legal claims to bring, or defend against, including: negligence, professional malpractice, strict liability, breach of implied and express warranties, constructive eviction, worker's compensation, violations of the Americans with Disabilities Act, breach of contract, fraud, failure to disclose in connection with property transactions, building code violations, and statutory claims -- depending upon the type of property in question, such as condominiums or homeowners associations.
Second, a seasoned mold attorney can help in ways which might be less obvious. A mold attorney can serve a prophylactic function. Prophylactic in terms of providing preemptive business protection, ahead of time, before winding up on the wrong end of a mold lawsuit. For instance, contract drafting and review can serve a significant prophylactic function. Purchase and lease agreements, both residential and commercial, should be reviewed by a mold attorney. A mold attorney can incorporate exculpatory clauses to reduce or eliminate altogether the risk of mold. A mold attorney can incorporate disclosure language into contracts for the sale or lease of residential or commercial property. A mold attorney can draft ceiling clauses pertaining to the scientific thresholds to be applied should mold be discovered. A mold attorney can incorporate appropriate policy guidelines for addressing mold exposure complaints, handling routine maintenance, mold inspection, and mold recognition.
Third, a seasoned mold attorney can help determine the appropriate measure of response to a mold claim-- where underestimating or even overestimating the required response could be extremely costly. The success or failure of any mold claim, whatever the legal theory behind it, always depends upon the same few variables. These include:
Thorough and credentialed environmental inspection is essential. When performing a site investigation, the inspector should be a properly trained and credentialed building scientist and/or industrial hygienist and should not rely upon mere air samples to determine the existence of mold. Mold spores often fluctuate greatly over the course of a day, and a single air sample reflects only a momentary "snapshot" condition. Certain mold, such as Stachybotrys, produces "sticky" spores and is rarely airborne absent some sort of physical disturbance. In these cases, air sampling will be prone to false negative results, and never should be exclusively relied upon to rule out contamination.
Some experts believe that if mold growth is visible, there is usually no need to further characterize it by determining the types of mold present. To the contrary, bulk and surface sampling is still justified -- especially in cases of personal injury claims so that physicians can properly diagnose illnesses of the occupants. Moreover, determination of the "fungal ecology" by isolating the genus and, where possible, species of mold present is an important determinant of causation and identification of the underlying moisture source.
As important as it is to engage in early due diligence and investigation, it is equally critical to have the right expert witness on your side. As good as any one lawyer is, there is not a single lawyer in the country capable of winning a mold case without the benefit of qualified and credentialed experts to address the unique scientific and medical aspects inherent in mold litigation.
Because of its scientific dependency, if the evidence isn’t there, it is critically important not to paint a picture in mold litigation that cannot be substantiated before a judge or jury. Because mold litigation is so scientific-dependent, a lawyer cannot sell a judge or jury on a proposition if the science does not support it. In mold cases, therefore, it is critically important to stay within the four corners of one's evidence.
Whether representing a plaintiff or defendant, it is always prudent to attempt to resolve a mold claim early on in the legal process rather than later. Because of their inherent reliance upon science and medicine, mold claims have a tendency to expand, multiply, and proliferate, just like mold spores themselves. To avoid the time and expense of such proliferation, it is prudent to resolve such cases early in the process, before a single case becomes a class action, before a property damage case becomes a personal injury case as well. Unfortunately, however, such a noble goal may not always be attainable. So, when that happens, make sure to have a seasoned mold attorney on your side. These cases are too specialized, too scientifically-dependent, and too dangerous for most attorneys without mold experience to handle.
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