(This article was originally published in Lawyers Weekly USA.)
A California family recently negotiated a landmark $22.6 million
settlement in a toxic mold case, claiming that moldy lumber used to build
their house created a "poison prison" that severely injured their son.
As one of the first successful mold lawsuits against a lumber yard — and
the largest to involve a single-family home — the case should put the
lumber industry on notice, said the family's attorney, Brian D. Witzer.
"We hope this settlement sends a signal to lumber yards nationwide to
treat mold growth issues seriously and establish polices to protect the
public's health and safety," Witzer said. Witzer predicted the settlement
will spur an onslaught of similar claims, saying that mold litigation
could become the "next asbestos," noting that his firm has handled several
cases in the last few years that have ended with settlements of more than
But attorneys for the defense believe the settlement is an aberration
caused by unfavorable rulings prior to trial. The settlement was reached
the day after Los Angeles Superior Court Judge Victoria G. Chaney excluded
10 of 17 expert witnesses for the lumber company, because the company
missed court deadlines for witness lists and then backdated documents,
according to Witzer. In published reports after the settlement was
announced, the company said in a statement that it believed jurors would
have "completely vindicated" it they had been able to hear its witnesses,
which included a microbiologist and a toxicologist.
None of the 17 defendants, including the lumber company, which agreed to
pay $13 million, admitted any wrongdoing. The other defendants in the suit
— which included the general contractor, construction supervisor, framer,
engineer, roofing company, plumber and window installer — agreed to pay a
combined $9.6 million as part of the settlement. Dream home turned
nightmare The Gormans contend their son, Kellen, suffered serious
neurological brain damage because of exposure to toxic molds growing on
framing studs that had been improperly stored at Crenshaw Lumber Co. in
Gardena, Calif. The studs were used to build the Gormans' $1.9 million
home in Manhattan Beach. The Gormans moved into their home in 1999.
Prior to that, Witzer said, the family had a spotless health record. But
soon after moving in, they began to suffer respiratory and sinus problems.
At first the family thought the mold throughout their home was caused by
living close to the ocean in an area of high humidity. They wiped it off
the walls and woodwork, but it kept returning. Eventually they called an
environmental company to advise them how to get rid of the mold, and the
company told them to move out immediately. They did not believe the
situation was that serious, however, and called another company. "Just
from their physical observations, that company told them to get out right
away, that staying was a health hazard," Witzer said. Subsequent testing
showed that the house was contaminated with dangerous molds.
The Gormans finally moved out after two years. But by then, their son
Kellen had suffered irreparable damage, including brain lesions and cysts.
At age 5, he still functions as a 1 1/2 year old and needs round-the-clock
care. His two sisters, now 7 and 3, did not suffer serious health
problems. Witzer said an MRI conducted when Kellen was 3 1/2 years old
revealed the lesions and, when compared to a problem-free MRI performed
when he was 1, clearly showed the jury that the youngster's brain had been
The defense attempted to keep out medical testimony regarding the child's
neurological injuries, but the judge ruled there was enough evidence to
allow jurors to hear the opinions of doctors linking the damage to
exposure to dangerous molds. Other powerful evidence came in the form of
environmental testing and blood serum testing, which showed high levels of
exposure to molds.
Kellen's father also complained of cognitive and neurological problems
such as memory loss, which the plaintiffs' medical experts testified is
associated with exposure to certain fungi, Witzer said. Head in the sand?
Witzer said the owner of the lumber company testified at trial that he did
not believe the mold on the lumber was dangerous and that the company did
not have a policy to prevent mold from growing on its lumber. "He
indicated that, yes, there was black material on the wood prior to
delivery, but that in his opinion this was just black stains or harmless
molds," Witzer said. "This is just inconsistent with all the scientific
evidence that is out there now."
He said Crenshaw did not follow industry recommendations to cover lumber
and keep it dry to prevent mold. "Basically [Crenshaw] ignored the
instructions from the supplier to keep [the wood] dry, and they just left
it out in the rain," Witzer said. "They didn't keep it raised twelve
inches off the ground and they didn't cover it. In fact, they kept the
lumber in a puddle, just operating with their heads in the sand."
Although he believes mold litigation is poised to take off, Witzer warned
that attorneys will have to put $250,000 or more into a case and be
willing to risk failure. He said mold cases are typically very
complicated, involving expensive medical testing that is usually not
covered by health insurance, intensive environmental testing and costly
experts whose travel expenses add up quickly, since many top mold
authorities live out of the country. "You have to treat it like a
poisoning case, meticulously building up all the evidence and bringing in
the top experts," Witzer said. "This is a potentially wonderful area of
litigation, but a toxic mold case cannot be handled like an automobile
Are you a
because you are:
1. Working in a moldy workplace?
2. Renting a moldy rental house, apartment, condo, office, or commercial
3. Sick from staying in a moldy hotel, motel, or resort room?
4. Living in a moldy home purchased from a seller or new home builder who
failed to disclose known mold infestations?
5. Having a water intrusion or mold damage problem caused by an adjoining
condominium, co-op apartment, or your home owners association?
6. Making mortgage payments to a lender for a moldy house, condo, or
7. Being unable to pay for needed mold remediation because your insurance
company has wrongfully denied your water or mold damage insurance claim?
8. Living or working in a moldy house or building that was improperly or
incompletely mold remediated by a mold remediation company?
9. Sick from living or working in a building water and mold damaged by a
negligent building contractor such as a roofing, plumbing, or air
10. Attending school or teaching or working in a school that is
Get mold justice by joining the
Mold Victim Rights Association.
For help, phone executive director Phillip Fry toll-free 1-866-300-1616,
cell phone (480) 310-7970, or email