MOLD PERSONAL INJURY LAWSUITS: WHY DO THEY CONTINUE? By Arthur P. Xanthos Permalink
In our August 6, 2014 article, we explained the import of the New York State Court of Appeals' Cornell decision -- without medical community acceptance of causation between mold and bodily injury, courts in New York State will dismiss lawsuits for bodily injury premised on mold. Arthur Xanthos, bodily injury, buildings, causation, co-ops and condo, Cornell v. 360 W. 51st Realty, Gartner + Bloom, lawsuit, mold, personal injury, toxic tort
Since the Cornell decision came down, this Firm has used it twice to dismiss mold-related bodily injury claims against our clients: first in June of 2014 in Benton v. 80 Cranberry, and now in August of 2016 in a case called Sylla-ba v. The Colton Condominium. (Both of these decisions can be accessed on the Firm's website, www.gartnerbloom.com, under Publications.) In Sylla-ba, Justice Cynthia Kern reiterated what the Court of Appeals held: an 'association' between mold and the alleged symptoms of a plaintiff is not the same as 'causation' between them; therefore, proving that there is such an association is insufficient for the bodily injury claims to survive dismissal.
Cornell should have resulted in a sharp drop in the number of mold-related personal injury lawsuits brought in New York's state courts; yet these lawsuits continue to be brought in roughly the same numbers as before Cornell. We suspect the reasons for this counter-intuitive statistic are, (1) the plaintiffs' bar's unfamiliarity with the 2014 Cornell decision (viz., the flawed belief that if you can get one doctor to say 'mold caused the plaintiff's illness', that such is sufficient), (2) the use of a mold-related bodily injury claim as an 'add on' claim to bolster the settlement value of the case, and (3) publication in the popular press of other states' mold verdicts and settlements.
So, we repeat what we wrote in our August 6, 2014 entry: Absent a major change in the science of mold illness, the next few years will see many more summary judgment decisions in favor of land owners and against mold plaintiffs.
New York City Building Owners and the Legionella Outbreak, by Arthur P. Xanthos Permalink
This past week has seen an outbreak of legionella in buildings in the South Bronx section of New York City. Legionella is the bacterium that causes legionnaires disease and flourishes in the water of air conditioning and central heating systems. Utmost concern is for the health and safety of building residents, and pending New York City regulations address this concern by imposing on building owners new registration, testing, and maintenance requirements. Given the number of deaths and hospitalizations already reported, building owners and their insurers should be aware of the following facts and suggestions: Arthur Xanthos, attorneys, Bronx, buildings, cooling tower, Gartner + Bloom, HVAC, insurers, lawyers, legionella, legionnaires disease, personal injury, toxic tort, water tower
1. There have been fewer than a dozen reported legionella/personal injury decisions in New York State in the last decade, and far fewer such decisions involving residential buildings. As in any toxic tort lawsuit, the legionella claimant will have the burden of proving that the building owner negligently allowed a toxin to develop (namely, legionella), and that the claimant was exposed to the toxin in an amount that caused injury to the claimant -- two very difficult though not impossible burdens to meet. (For a detailed discussion of the burden of proving causation in toxic tort lawsuits, see our prior blog entry titled Mold up in the Air: Settled.)
2. A building owner must report to its insurance carrier immediately any notice of bodily injury or property damage arising from the outbreak. A building owner should also notify its HVAC/cooling tower contractor, and the insurer for that contractor, of the incident(s).
3. The insurance carrier for its part must assemble a pre-lawsuit response team -- legal, engineering, medical, and environmental -- to investigate the premises and establish the facts.
4. New York City is now inspecting and testing building cooling systems. As these test results will be admissible in any subsequent lawsuit, building owners (or, preferably, their insurance carriers) should retain environmental consultants to photograph, monitor, and report on how the City performs the testing.
5. Finally, if the cooling tower or HVAC system is going to be dismantled or modified significantly, care should be taken to avoid a spoliation penalty. (For a detailed discussion of this topic, see our prior blog entry titled Spoiling the Evidence, Spoiling the Case.)