(This article was originally published in Lawyers Weekly USA, another Dolan Media publication.)
 
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 $1 million.
 
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 damaged.
 
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 accident case."