How Safe Are Our Courthouses?
By Alexander Robertson IV, Mealey's Online, November 2000
The next time you visit your local courthouse, spend a moment to look up at the ceiling tiles and look to see if they are visibly stained from water leaks. Unfortunately, most of our courthouses in this country are in a ruinous condition. We take the indoor air quality for granted. After all, if it wasn't safe to breathe the air inside these buildings, surely "they" would tell the us, right? If you believe that, you probably still put milk and cookies out each year for Santa Claus.
There have been a shocking number of courthouse closings across the country in recent years due to mold contamination. Mold spores are problematic, because they are only one micron in size. That means that 250,000 spores can fit on the head of a pin. Most of these closings have been the result of construction defects that cause chronic water intrusion, such as window leaks, roof leaks, excess condensation from the HVAC pipes leaking onto ceiling tiles, and improper moisture barriers in exterior finishes. Last year, a Santa Clara County courthouse in California was closed following the discovery of Stachbotrys mold that had colonized as a result of leaks. Approximately a dozen personal injury cases are presently pending brought by courthouse workers who reported developing mold-related illnesses. The county also filed a multi-million dollar construction defect lawsuit against the builder of that courthouse, seeking costs to repair the building and perform mold remediation.
In Tulare County, California, the main courthouse in Visalia is currently the focus of one of the largest microbial contamination cases ever filed in the state. In March of 2000, a Superior Court Judge filed the first of what would become hundreds of lawsuits against the County alleging that the Visalia courthouse was a dangerous condition of public property and that the county and County Counsel had concealed and suppressed results of microbial tests performed a year earlier. The lawsuits seek monetary damages for personal injuries, punitive damages for fraud, as well as injunctive relief to close the courthouse until proper remediation has been performed.
To date, three other judges and approximately 200 courthouse workers, including bailiffs, court reporters, clerks and others have filed claims against the county pursuant to the Government Tort Claims act, a prerequisite to filing their own personal injury lawsuits. Additionally, 89 assistant district attorneys and public defenders have filed government tort claims as well. In addition, approximately 70 county employees have filed worker's compensation claims. Approximately 200 personal injury lawsuits against the county have been filed so far. Needless to say, these cases have raised numerous legal and public health issues, some of which are discussed herein
COMMON FUNGI FOUND IN BUILDINGS
Fungi commonly found in buildings with chronic water intrusion problems include Stachybotrys, Aspergillus, Penicillium, Trichoderma, Ulocladium and Chaetomium, among others. In order to understand the health effects of exposure to these fungi, a brief background is necessary.
Fungi And Mycotoxins
Several mold species, including Aspergillus, Fusarium, Penicillium and Stachybotrys can produce a wide variety of non-volatile chemicals, commonly referred to as mycotoxins. Stachybotrys alone produces over 163 different mycotoxins. According to a current text-book of miltary medicine on the medical aspects of chemical and biological warfare published by the Office of the Surgeon General, the Soviets are believed to have used neurotoxins from Stachybotrys as a biological weapon in Afghanistan. Even in low concentrations, these chemicals are reported to cause adverse health effects, including skin irritation, respiratory distress, pathogenic disease, cancer and immune disorders. Unlike allergens, mycotoxins elicit a toxic response in virtually all individuals who come in contact with them. Aspergillus Favus, a commonly discovered indoor fungus, produces alflatoxins, notoriously potent animal carcinogens. Penicillium, while unable to produce aflatoxin, may produce more than 100 different classes of mycotoxins.
Stachybotrys , one of the most notorious mycotoxin-producing molds, has received much publicity in both the media and in high profile closing of public and private buildings, schools, courthouses and hospitals. Various species of "Stachy", as well as Fusarium, can produce macrocyclic trichothecenes, which have potent adverse health affects on the immune system, as well as protein synthesis. Stachybotrys Chartarum (or atra) produces five different trichothecenes, which are both dermotoxic and cytotoxin. In one clinical study, an extract of various Stachy-produced trichothecenes was given to rats. It resulted in their deaths within 24 hours.
Mycotoxins can enter the body via inhalation or contact with the skin. Inhalation of mycotoxins is a much more potent route of exposure, compared with ingestion. Adverse health affects have been noted in individuals who came in contact with Stachybotrys , suggesting that the toxins were absorbed through the skin. Fungi also product a wide range of volatile organic compounds ("VOC's"), consisting mainly of alcohols, ketones, hydrocarbons and aromatics, many of which have distinct ordors. These VOC's which are sometimes referred to as microbial VOC's or MVOC's, are typically what cause the characteristic musty or dank smell which people associate with mold growth. Odor thresholds for some MVOC's are very low, as low as 1 part per trillion.
HEALTH ISSUES/HEALTH EFFECTS
Inhalation of mold spores, fragments (parts), or metabolites (e.g., mycotixins and VOC's) from a wide variety of fungi may lead to or exacerbate immunologic (allergic) reactions, cause toxic effects, or cause infections.
Immunological reactions include asthma, Hypersensitivity Pneumonitis (HP), and allergic rhinitis. Skin contact with mold spores may also cause dermatitis, noted by visible red itchy patches of skin. The most common symptoms associated with allergic reactions are runny nose, eye irritation, cough, congestion, and aggravation of asthma. HP may occur after repeated exposures to an exposures to an allergen and can result in permanent lung damage.
A wide variety of symptoms have been attributed to the toxic effects of mold. Symptoms such as fatigue, nausea, headaches, respiratory distress, and eye irritation have been reported. Some of the symptoms are "non-specific", such as joint or muscle pain, inability to concentrate and chronic fatigue.
Organic Dust Toxic Syndrome (ODTS) has been classified as a serious disease resulting from exposure to toxic species of fungi. ODTS is the abrupt onset of fever, flu-like symptoms, and reparatory distress within hours following a single, heavy exposure to dust containing organic material including fungi. ODTS differs from HP in that it is not an immune-mediated disease and does not require repeated exposures to the same agent. ODTS may be caused by a variety of bioaerosols, including common fungi such as Aspergillus and Penicillium.
Only a small group of fungi have been associated with infectious disease. Aspergillosis is an infectious disease that can occur in immunosuppressed person. Health effects can be severe. Several species of Aspergillus are know to cause Aspergillosis. The most common is Aspergillus Fumigatus. These species have also been called oportunistic pathogens, meaning they are organisms that can produce disease in an immuno-compromised person.
According to the recently revised New York City Department of Health guidelines, infants (less than 12 months old), person recovering from surgery, or people with immune suppression, asthma, hypersensitivity pneumonitis, severe allergies, sinusitis, or other chronic inflammatory lung diseases may be at greater risk for developing health problems associated with certain fungi. According to these guidelines, such persons should be removed from the contaminated area during remediation. Persons diagnosed with fungal related diseases should not be returned to the affected areas until remediation and fungal testing are complete.
GOVERNMENT TORT CASES
In the Tulare courthouse cases, all the plaintiffs, whether judges, courthouse employees or bailiffs, first had to comply with the Government Tort Claims act by filing a claim against the County with Board of Supervisors in accordance with California Government Code Section 910, et seq. The time to present such a claim is not later than 6 months from the accrual of the plaintiff's cause of action. In the Tulare cases, the county took the position that the government tort claims were untimely, because the plaintiffs alleged that their exposure to toxic mold began more than 6 months before they filed their claims. However, the plaintiffs claimed that the county had concealed the results of mold testing for nearly a year before County Counsel disclosed the test results and thus the delayed discovery rule did not toll their causes of action from accruing until they discovered the county's alleged fraud. Additionally, in cases involving continuing injuries, such as exposure to microbiological contaminants, a plaintiff is entitled to treat the claim as one that keeps accruing from time to time and present either periodic claims as the damage persists, or may treat the entire sequence of events as the occurrence from which the claim arose and compute the time to present the claim from the last event in the series. See, Natural Soda Prods. Co. v. City of Los Angeles (1943) 23 Cal.2d 193. In the Tulare cases, the plaintiffs claimed that their last day of work was the "last event in the series" and calculated the 6 month period from that date.
Statute Of Limitations
In the only California decision involving a personal injury claim from mold exposure, the Court of Appeal held in Miller v. Lakeside Village Condominium Association, Inc. (1991) 1 Cal. App. 4th 1611 that the one (1) year statute of limitations provided by Code of Civil Procedure 340(3) applied to a homeowner's claim against her homeowner's association for failure to maintain the plumbing system, which resulted in the plaintiff suffering personal injuries from her exposure to toxic mold after flooding occurred. Although the plaintiff's condition was not diagnosed as immune dysregulation until 1986, she suffered "extreme allergic reactions" and severe bouts of asthma" for which she sought medical attention in 1983 and 1984. The court ruled that the " delayed discovery rule" did not apply because the plaintiff had actual knowledge of the negligent cause of her injured in October of 1984, when the plaintiff hired a microbiologist who pinpointed the source of the mold in her unit and the plaintiff performed and unsuccessful remediation. For the one year period to begin to run, the plaintiff must have been injured and know of the cause of the injury.
In the Tulare cases, although many of the plaintiffs were symptomatic more that a year prior to filing suit, they did not know the cause of their injuries. In fact, the plaintiffs allege that County Counsel concealed the mold test results for nearly a year, despite the fact those reports advised the county of the adverse health consequences that could result from exposure to toxic mold. Based upon tremendous pressure to release information, the County Counsel's office began a series of memos released to courthouse workers, the first of which was in February of 2000. Thus, the plaintiffs could not have known of the cause of their injuries any earlier than this date.
WORKER'S COMPENSATION EXCLUSIVE REMEDY
The Tulare judges are state court employees. The court reporters, clerks and others are employees of the County. The bailiffs are county deputy sheriffs. Because the judges are not employees of the county, there is no worker's compensation bar as to these claims. However, the county employees must allege an exception to California Labor Code Section 3602, which provides that worker's compensation insurance is the exclusive remedy for a work related injury. Labor Code Section 3602(b) provides such a statutory exception. It says that if the employer fraudulently conceals the existence of the injury and its connection with the employment, and that aggravates the injury, the employer is liable for the exacerbation of the injury. In the Tulare cases, the employees of the county alleged that the county concealed the mold test results from them for nearly a year, during which time the employees continued to be exposed to toxic mold spores, which exacerbated their injuries and delayed proper medical diagnosis and treatment of their injuries.
Virtually every guideline published dictates that the building owner, manager, and/or employer promptly notify occupants in the affected areas of the presence of any fungal growth that requires large-scale investigation or remediation. The New York City Department of Health, the American Industrial Hygiene Association and the American Conference of Governmental Industrial Hygienists all have published guidelines on this subject.
The purpose of communicating the hazard is to inform the employees and occupants of the building in order to reduce suspicion and rumors and to provide persons seeking medical attention correct information about bioaerosol agents they may have been exposed to so they can seek appropriate medical diagnosis and treatment. The guidelines require that notification include a description of the remedial measures to be taken and a timetable for completion. Group meetings should be held before and after remediation with full disclosure. Individuals with persistent health problems should see their physicians for referral to occupational/environmental medicine doctors who are knowledgeable about fungal exposure. Individuals seeking medical attention should be provided by the owner and employer with a copy of all inspection results and interpretation to give to their medical practitioners.
Unfortunately, in the Tulare cases, the lawsuits allege that the courthouse workers and judges were not provided with any hazard communication from the county for nearly a year after the county had commenced its testing and remediation program. Remediation was often performed after hours and on weekends. Employees who worked late or came into the courthouse on weekends described encountering personnel in Tyvex "moon suits" wearing respirators and yet were told the courthouse was perfectly safe. The failure to comply with these standards and provide accurate and timely information is at the heart of the plaintiff's claims for fraud and misrepresentation.
INJUNCTION AGAINST DESTRUCTION OF EVIDENCE
In the Tulare courthouse case, the County challenged the timeliness of the judge's original government tort claim and demurred to the filing of her complaint as premature. the County objected to all discovery propounded by the judge concerning contamination of the courthouse. At the same time, the County began an aggressive campaign of removing evidence of visibly contaminated drywall, carpets and ceiling tiles and throwing evidence into dumpsters that were hauled to the landfill.
Because the courthouse is owned and operated by the County, which is the target fo the lawsuits, attorneys representing the judge went to Court and obtained a permanent injunction against the County from removing and destroying evidence of possible mold contamination. The Court ordered that before the County could perform any further remediation of the toxic mold at the courthouse, the County must give the plaintiffs' attorneys reasonable advance notice and an opportunity to have their own consultant present to test and take samples of the contaminated buildings materials before the County will be allowed to remove and destroy them.
The granting of this permanent injunction was a major victory for the plaintiffs who were concerned that the County's remediation program, which did not commence until after the judge filed her lawsuit, was compromising their cases. The preservation of the evidence is a major concern in microbial contamination cases and the issue is even more difficult when the plaintiffs do not own or control the contaminated property. There is tension between the owner's duty to perform immediate remediation and preservation of evidence for future litigation which must be respected.
RECENT PUBLICIZED COURTHOUSE MOLD CASES
In the largest published verdict of its kind, a $14 Million judgment was recently affirmed by the Florida Court of Appeal against the contractor of the Martin County Courthouse for sick building syndrome and construction defects. In April of 1996, an Indian River, Florida jury awarded Martin County $11.5 Million against a construction manager and three surety companies. The county alleged that two buildings evacuate in December 1992 suffered from construction defects, which resulted in leaks to the building's exterior skin an problems with the air conditioning. Water intrusion and high humidity fostered the growth of toxic molds and mildew in the buildings.
The trial judge reduced the jury's award by $2.75 Million, reflecting the amount received by the county in pre-trail settlements with other defendants. The court entered an amended final judgment for $14.2 Million, including $8.8 Million in damages and $5.4 Million in prejudgment interest.
Approximately 181 courthouse workers filed separate personal injury lawsuits against the county, which settled for a total of $8 Million before trial.
The most notable portion of the appellate decision to uphold the judgment was the affirmation of the trail judge's admission of expert testimony by two doctors, that suggested the existence of a health hazard stemming from the presence of toxic molds in the buildings. The court of appeal held that the county met its burden of proof under Frye v. U.S. (1923) 54 App. D.C. 46, 293 F. 1013 D.C. Cir. , noting that both experts testified about numerous publications accepted by the scientific community recognizing the link between toxic mold exposure and adverse health problems. Centex-Rooney Construction Company Co., et. al. v Martin County, No. 96-2537, Fla. App., 4th Dist.
The author is currently representing the plaintiffs in the Tulare courthouse cases, and is handling several other large toxic mold cases involving hospitals, schools, office buildings, condo projects and residents. Although it may seem to many that mold follows courthouses like tornadoes follow mobile home parks, the large number of courthouse closings and cases involving mold may be accounted for by the fact judges, lawyers and others who work in courthouses may be more aware of their legal rights than others.