Mold - An Emerging Construction Defect
By Alexander Robertson IV, GPSOLO MAGAZINE, APRIL/MAY 2001
Because Americans spend between 75 and 90 percent of their time indoors, they are exposed to a variety of pollutants from indoor air, which the Environmental Protection Agency (EPA) claims contains between 100 and 200 times the amount found in outdoor air.1 Lawsuits arising from indoor air pollution typically involve both personal injury and property damage components. Personal injuries caused by indoor air pollution fall into three categories: sick building syndrome (SBS), building related illness (BRI), and multiple chemical sensitivity (MCS). Personal injuries fall into the category of sick building syndrome when they are caused by exposure to certain microbiological agents that can arise in buildings that experience chronic water intrusion into the building envelope. At least one commentator has suggested that SBS occurs when at least 20 percent of a building's occupants complain of particular discomforts while inside the building that are alleviated when they leave the building, yet there is no discoverable link between the building source and the problems encountered.2 However, in the case of microbiological contamination, a very distinct link can be found between toxic mold and the occupants' illnesses.
This article looks at the legal aspects in California and other states of property damage and personal injury claims arising from microbiological agents found in structures.
Causes of Action
A litany of potential causes of action are available to the plaintiff, including negligence, professional malpractice, strict liability, breach of implied and express warranties, constructive eviction, workers compensation, violations of the Americans with Disabilities Act, breach of contract, fraud, failure to disclose in sale of property, and violations of the Unfair Competition Act pursuant to Business & Professions Code § 17200 et seq.
The most common cause of action asserted for mold contamination is negligence. The elements of this tort are that: (1) the defendant owed a duty of care to the plaintiff; (2) the defendant breached that duty by a failure to exercise ordinary or reasonable care that a person of ordinary prudence would use under similar circumstances; (3) the plaintiff was injured; and (4) the breach was the proximate cause of the injury, damage, or loss to the plaintiff.
This cause of action is commonly used in actions against builders, general contractors, design professionals, and subcontractors for alleged negligence in the performance of their duties. In addition to any obligation contained in the lease, landlords have a common law and a statutory duty to make repairs and take steps to ensure that property is fit for human habitation.5 Homeowners associations (HOAs) have the duty to maintain, repair, and replace the "common areas" of a common-interest development pursuant to the Conditions, Covenants & Restrictions (CC&Rs) and California Civil Code § 1364. Boards of directors owe a fiduciary duty to the homeowner/members to discharge their duties as well.
For more than three centuries, the general rule governing the purchase of real estate was caveat emptor-or let the buyer beware. However, beginning in 1969, courts in California began recognizing a homeowner's right to sue a builder of mass-produced housing (e.g., condos and tract homes) under a strict liability theory.7
This theory of liability evolved from products liability law. In order to prove this cause of action, the plaintiff must show that the defendant was involved in the mass production of housing, a defect in the house exists, damages were proximately caused by the defect, and the defendant caused or created the defect. The plaintiff is not required to prove that the defendant failed to follow the standard of care of similar builders in the community, an essential element of the negligence cause of action. It is important to note that this theory does not apply to subcontractors, design professionals, or commercial property.
Breach of warranties.
For new construction of both residential and commercial properties, the California courts have created an implied warranty that the structure was designed and constructed in a reasonably workmanlike manner.8 Similarly, a builder or seller of real property may expressly warrant the condition of the construction and improvements, which is a contractual cause of action. For the tenant, the courts have modified the common law duty of the landlord to maintain and repair residential premises by creating an implied warranty of habitability.9
When a landlord breaches an implied covenant of habitability or covenant of quiet use and enjoyment, a constructive eviction may result. The landlord's breach of the covenant may entitle the tenant to recover monetary damages from the landlord for a constructive eviction.10
The legislature has enacted a broad statutory scheme in California to compensate workers who are injured on the job. However, an injured worker is barred from suing his employer for an injury if the workers' compensation insurance is maintained by the employer. Certain exceptions may apply if the employer conceals the cause of the employee's injury.11
FAILURE TO DISCLOSE
Every person who sells or transfers title to residential real estate must disclose all facts that materially affect the value or desirability of the property.12 Individual sellers must comply with California Civil Code §1102, which requires the seller, the listing (seller's) agent, and the buyer's agent to complete and deliver to all prospective buyers a standardized form containing information about the property, commonly referred to as a transfer disclosure statement (TDS). Real estate agents are also required to conduct a reasonably competent and diligent visual inspection of the property offered for sale and to disclose to a prospective buyer all facts materially affecting the value or desirability of the property that an investigation would reveal.13
Several cases have further defined these duties. In one case, a seller of a condo in an HOA delivered a TDS to the buyer before escrow closed, stating that she was unaware of any flooding, drainage, or grading problems. However, prior to this, the seller had completed a homeowners questionnaire sent to her by her HOA in which she had reported a white residue on the interior concrete wall of her garage and algae or fungus on the exterior of the wall. The seller's real estate agent noted on her portion of the TDS that she knew nothing to contradict the seller's representations, but that she knew that some other units in the HOA had experienced water intrusion. Prior to the close of escrow, the HOA sent a letter to all homeowners, including the seller, that the HOA had recently filed a construction defect lawsuit against the builder. The seller forwarded a copy of the announcement to the buyer. One month after escrow closed, the buyer discovered water intrusion damage when she removed a portion of the carpet in her unit.
The buyer sued the seller and seller's brokers for failure to disclose. The court of appeal finally ruled that the seller was not required to disclose past occurrences of algae or white residue in the seller's unit because the seller believed the unit had been repaired and had seen no signs of the problem's recurrence prior to sale. The court held that it was sufficient for the seller's broker to disclose that some of the units, but not the subject unit, had experienced leaks and that litigation by the HOA had been filed against the builder.14 Likewise, there is no duty for a real estate agent to make inquiry to the HOA whether construction defects exist, or whether the HOA is currently involved in a construction defect lawsuit.15 Additionally, the HOA has no duty to tell a prospective purchaser about construction defects or the existence of a lawsuit against the builder to repair the defects, because the HOA is not acting as a seller, is not a party to the sales contract, and doesn't assume any special relationship with the buyer.16
COMMON FUNGI FOUND IN BUILDINGS
Fungi commonly found in buildings with chronic water intrusion problems include Stachybotrys, Aspergillus, Penicillium, and Trichoderma, among others. Several mold species, including Aspergillus, Fusarium, Penicillium, and Stachybotrys, can produce a wide variety of nonvolatile chemicals, commonly referred to as mycotoxins. Stachybotrys alone produces more than 163 different mycotoxins. The Soviets are believed to have used mycotoxins from Stachybotrys as a biological weapon against Afghanistan.17
Even in low concentrations, these chemicals can cause adverse health effects, including skin irritation, respiratory disease, cancer, and immune disorders. Unlike allergens, mycotoxins elicit a toxic response in virtually all individuals who come in contact with them. Aspergillus Flavus, a common indoor fungus, produces aflatoxins, notoriously potent animal carcinogens. Penicillium, although 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 from the media, especially regarding high-profile closings of public and private buildings, schools, courthouses, and hospitals. Various species of Stachy and Fusarium can produce macrocyclic trichothecenes, which potently and adversely affect the immune system and protein synthesis. Stachybotrys chartarum (previously known as atra) produces five different trichothecenes, which are both dermotoxic and cytotoxic. In one study, an extract of various Stachy-produced trichothecenes was given to rats; they died 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 than ingestion. Adverse health effects have been noted in individuals who came in contact with Stachybotrys, suggesting that the toxins were absorbed through the skin.
Fungi also produce a wide range of volatile organic compounds (VOCs), consisting mainly of alcohols, ketones, hydrocarbons, and aromatics, many of which have distinct odors. These VOCs, sometimes referred to as microbial VOCs or MVOCs, are typically what cause the characteristic musty or dank smell associated with mold growth.
Inhalation of mold spores, fragments (parts), or metabolites (e.g., mycotoxins and VOCs) from a wide variety of fungi may lead to or exacerbate immunologic (allergic) reactions, cause toxic effects, or cause infections. Immunologic 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 irritations, cough, congestion, and aggravations of asthma.
A wide variety of symptoms has been attributed to the toxic effects of mold. Symptoms such as fatigue, nausea, headaches, respiratory distress, and eye irritation have been reported. 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 respiratory distress within hours of a single, heavy exposure to dust containing organic material, including fungi. ODTS may be caused by a variety of bioaerosols, including Aspergillus and Penicillum.18
No matter what legal theory is relied upon, the most difficult element frequently will be causation. Thus, it is essential to conduct thorough and competent testing of both the patient and the patient's environmental surroundings. To perform a site investigation, a properly trained industrial hygienist should be used, one who does not arbitrarily rely upon air samples to determine the existence of fungi. Results from air testing alone can be confounding and are strongly discouraged.19 Amounts of fungal spores often fluctuate widely during the course of a day, and a single air sample reflects only a momentary "snapshot" condition. Certain fungi such as Stachybotrys have sticky spores and are rarely airborne absent some type of physical disturbance, in which case air sampling would be prone to false negative results.20
According to the California Department of Health Services, if mold growth is visible, there is frequently no need to characterize it further by determining the types of mold present. However, a program of bulk and surface sampling is still justified, so that physicians can properly diagnose the occupants using microbial etiology and so that the cost and method of remediation and repair of the building can be determined.
According to the American Industrial Hygiene Association (AIHA), studies of microbial problems in buildings have shown that perhaps 50 percent of microbial problems are not visible. Because of the frequency of hidden mold growth in buildings with a history of chronic water intrusion, most experienced investigators use a mixture of bulk and air sampling for biologicals. Implementing both methods of testing increases the likelihood of discovering the proximity of and defining the biodiversity of biological reservoirs.
A detailed inspection often includes performing destructive testing to remove water-damaged drywall to inspect the back of gypsum wallboard, wood framing members, and insulation. However, care must be taken to warn both the investigators and the occupants of the building and to protect them from unintentional contamination from destructive testing. Proper personal protective equipment (PPE) should be worn by testing personnel.
Information on airborne fungi that is generated from collecting air samples, with subsequent culture in agar mediums, has several limitations. According to AIHA, air samples impacted on agar mediums can greatly underestimate the total propagule numbers present for three reasons: (1) decline in propagule viability with age and exposure to ambient environmental conditions; (2) choice of agar medium; and (3) damage to propagules during sampling. Fungal spores decline in viability from the moment they are produced. Spores of Stachybotrys chartarum decline in viability very quickly. Hence, according to AIHA, the finding of Stachybotrys from air samples collected on culture media must be treated differently from a finding of a Penicillium species. In general, the numbers of propagules determined by cultures are substantially less than those determined by direct methods.
A proper investigation should include both viable (culturable) and non-viable fungal particles. Therefore, when collecting air samples, the investigator should collect both types of particles. When conducting any type of air sampling, samples of the ambient air outside the building should also be collected, so that the genus and spore counts of fungi found inside can be compared to those found outside.
EXPERT TESTIMONY IN MOLD CASES
The success of any microbiological contamination case will revolve on the admissibility and credibility of expert witnesses. Experts can include mycologists, microbiologists, industrial hygienists, neuropsychologists, immunologists, toxicologists, and occupational and environmental medical doctors.
The test for the admissibility of scientific expert testimony in federal courts was established in Daubert v. Merrell Dow Pharmaceuticals, Inc.21 In that case, the court held that the trial court must determine whether the expert testimony constitutes scientific knowledge by analyzing whether the theory has been subjected to peer review or publication; whether the theory can be or has been tested; whether there is a known, acceptable rate of error; and whether the theory is generally accepted.
Most mold cases filed in California are filed in state court; therefore, the Daubert factors do not apply. The standard of admissibility for cases filed in state court was established in People v. Kelly22 (often referred to as the Kelly/Frye standard). Under this decision, new scientific evidence is admissible only on a showing of scientific reliability demonstrated by substantial agreement and consensus in the scientific community. The Kelly court established the following factors: whether the new scientific method can be shown to be reliable; whether the witness is qualified as an expert in the field; and whether the theory or method in question was implemented according to proper scientific procedures.
Regarding statistical techniques, the Kelly/Frye standard applies only if the statistical technique is "scientific"-if it appears in both name and description to provide some definitive truth.23 The statistical technique must also be "new" for Kelly/Frye to apply-"new" meaning new to both law and science.24 The Kelly/Frye standard does not apply if the expert merely states an opinion based upon commonly used statistical formulas.25
In March 1999, the U.S. Supreme Court made new pronouncements in the area of admissibility of expert testimony at trial. In Kuhmo Tire Co. Ltd, v. Carmichael,26 the Court ruled that the factors set forth in Daubert apply to all experts, not just those in medicine or the broader sciences. The high court urged lower courts to act as the "gatekeepers" in deciding whether to admit expert testimony to exclude "junk science." The court held that the Daubert factors are not all-inclusive but are to be flexibly applied in order to ensure that the spirit of Rules 702 and 703 of the Federal Rules of Evidence are adhered to in all proceedings where experts are permitted to testify. Based upon this recent decision, it remains to be seen how much credence California state courts will give to the Daubert factors in screening admissibility of expert testimony.
DAMAGE RECOVERABLE IN MOLD CASES
The general principle governing the measure of damages in all California tort cases entitles an injured party to recover full compensation for losses proximately caused by a wrongdoer's act or omission.
The principle codified in California Civil Code § 3333 describes the measure of damages for personal injury, as well as injury to real and personal property. The general rule in construction defect cases is that the proper measure of damages is the diminution of value or the cost to repair, whichever is less.27 However, in at least one other major case, the court of appeal held that the proper measure of damages in a construction defect case is the cost of remedying the defects plus the value of lost usage during the period of injury, regardless of the theory of liability relied upon by the plaintiff.28 At least one case has held that the homeowner can recover the cost to repair, even if it exceeds the diminution of value caused by the defects.29 The rule adopted by the court in this case is commonly referred to as the "personal exception" rule, because the court found that the plaintiffs had a personal reason for wanting to repair their home and had no intention to move. Other cases have held that "there is no fixed, inflexible rule for determining the measure of damages for injury to, or destruction of, property, and whatever formula is most appropriate in the particular case will be adopted."30
For personal injury claims arising from toxic mold-related illnesses, recoverable damages include pain and suffering; past, present, and future medical care; future medical monitoring; lost wages; and loss of earning capacity.31 In rare cases where a death occurred due to fungal or bacterial exposure, a wrongful death claim can be made by the surviving family members for loss of love, companionship, comfort, affection, society, solace, or moral support, and any loss of enjoyment of sexual relations or loss of physical assistance from a spouse in the operation or maintenance of the home. Survivors can also recover for lost financial support from the decedent.32 Prejudgment interest can also be recovered to compensate the plaintiff for loss of use of money or property.33
In California, attorney fees are generally recoverable only if there is a contractual right to recover them. Purchase agreements between buyer and seller of real property frequently include an attorney fees clause. Action brought to enforce the terms of the CC&Rs for a common interest development entitle the prevailing party recover reasonable attorney fees and costs pursuant to California Civil Code § 1354(f ).
Punitive damages may be justified in a fungal contamination case when the evidence establishes that the defendant was aware of the probable dangerous consequences of the conduct and willfully and deliberately failed to avoid those consequences (e.g., landlord or HOA knew of the presence of toxic mold and failed to remediate the dangerous condition or disclose this material fact to homeowner).34
Emotional distress damages may also be recoverable in cases involving personal injury or fraud. However, emotional distress damages cannot be recovered where the injury is confined to property damage.35
STATUTE OF LIMITATIONS IN MOLD CASES
Care should be taken regarding the statute of limitations for personal injuries caused by fungal contamination. In the only published decision involving this type of claim in California, the court of appeal held in Miller v. Lakeside Village Condominium Ass'n36 that the one-year statute of limitations provided by Code of Civil Procedure 340(3) applied to a homeowner's claim against her HOA for failure to maintain the plumbing system, which resulted in the plaintiff suffering personal injuries from 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 to the 1986 diagnosis because the plaintiff had actual knowledge of the negligent cause of her injuries in October 1984, when she hired a microbiologist who pinpointed the source of the mold in her unit and she performed an unsuccessful remediation. The fact that the plaintiff's ultimate medical condition was not properly diagnosed for two additional years was not persuasive to the court. For the one-year period to begin to run, the plaintiff must have been injured and have known the cause of the injury.
Because the source and cause of water intrusion problems are often difficult to identify and correct, and because Code of Civil Procedure 337.15 provides for a ten-year statute of limitations to commence an action for latent defects, a potential conflict may arise between the accrual of a homeowner's cause of action for personal injuries caused by fungal contamination and the limitation period to sue for the underlying defective condition that caused the fungal contamination. This conflict is exacerbated by the three-year limitation period provided in Code of Civil Procedure 338 to commence an action for negligence arising from damage to real property. Thus, a homeowner who discovers a roof leak has up to three years to file suit (provided suit is filed within ten years of substantial completion of the project) but has only one year to sue for exposure to toxic fungus that grew because of that leak. However, the Miller case is in direct conflict with silicone breast implant cases that have expressly held the one-year statute of limitations is tolled until the breast implant recipient suspected or should have suspected that autoimmune disease may have been caused by a product defect.37
Recent Verdicts and Settlements
Because most microbiological contamination cases involve a recovery for property damage to repair and remediate the defective conditions and for personal injury, it is difficult to extract the exact amount paid for each category of damage. In larger construction defect cases involving a homeowners association comprised of several hundred units that is suing the builder for defects to the common areas, a mold claim is often thrown in to trigger insurance coverage for personal injury or loss of use of property. A number of cases reported during the past few years, however, involved single family homes or condo units, which provide a good idea of the value of such claims on a per-unit basis.
* In May 1999, a Simi Valley woman recovered $350,000 against her homeowners association for failure to repair and remediate chronic water damage to her condo and for her personal injuries suffered from exposure to toxic molds, including Stachybotrys. The plaintiff also contracted Meniere's disease as a result of microbiological contamination of her unit. (Tri-Service Reference No. S99-09-19; Jan Hickenbottom v. Raquet Club Villa HOA, VCSC case no. SC 020 526.)
* In May 1998, the owners of a 7,000-square-foot custom home in Playa Del Rey sued the builder after the ceiling caved in as a result of roof leaks that occurred before they moved in. Stachybotrys was found in many locations in the house. The case settled for $900,000. (Confidential Report for Attorneys, CRA No. 10272, 1998 Issue, at pg. 12-54; Doe Homeowners v. Roe Builder.)
* In February 1998, three families in Alameda County sued their homeowners association after leaky pipes caused toxic mold to grow in the crawl spaces of their condo units. The plaintiffs reported depression, anxiety, emotional distress, gastrointestinal maladies, vomiting, diarrhea, respiratory tract infections, severe headaches, fatigue, lethargy, and other symptoms. Blood samples showed elevated antibodies to neurotoxin-producing molds, including Stachybotrys, Aspergillus, and Penicillium. The case settled for $545,000. (Confidential Report for Attorneys, CRA No. 9855; 1988 Issue, pg. 08-76; Jacqueline Berry v. Mission Terrace HOA, ACSC case no. H-182260-5.)
* In February 1997, the owners of a new Malibu beachfront home recovered $1,353,000 for the home purchased from the defendant for $2.5 million. The husband complained of mild respiratory problems and headaches in response to exposure to mycotoxins released by Stachybotrys. The wife, who previously had been diagnosed with an immuno-compromised condition, suffered flu-like symptoms, sore throat, diarrhea, headaches, fatigue, dermatitis, and general malaise. Plaintiffs' cost to repair home was $662,000. (Confidential Report for Attorneys, CRA No. 8795; 1997 Issue, pg. 10-53; Doe Homeowners v. Roe Seller.)
* In January 1999, the Santa Clara County Board of Supervisors voted unanimously to close the mold-plagued South County Justice Center and relocate the three courtrooms and offices to leased trailers pending remediation of the courthouse. Water leaks through exterior walls led to the growth of Stachybotrys, and 12 rooms in the courthouse had been closed due to contamination from toxic mold. About a dozen courthouse workers have filed personal injury claims against the county, and the county has filed its own construction defect lawsuit against the general contractor and its subcontractors who built the four-year-old facility at an original cost of $6 million.
BIG FLORIDA VERDICT
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 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 evacuated in December 1992 suffered from construction defects that resulted in leaks to the building's exterior skin and problems with the air conditioning. Water intrusion and high humidity fostered the growth of toxic molds and mildew in the buildings. It is important to note that this jury verdict dealt with only property damage and did not include personal injury claims, which were the subjects of separate cases.
The trial judge reduced the jury's award by $2.75 million, which reflected the amount received by the county in pretrial 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.
The most notable portion of the appellate decision to uphold the judgment was the affirmation of the trial judge's admission of expert testimony by two doctors, who 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. (54 App. D.C. 46, 293 F. 1013 (D.C. Cir. (1923)), noting that both experts testified about numerous publications accepted by the scientific community that recognize the link between toxic mold exposure and adverse health problems. (Centex-Rooney Construction Company Co. v. Martin County, No. 96-2537, Fla. App., 4th Dist. (1998)).
* EPA's Indoor Air Quality
* Pyle, Environmental Law in an Office Building: The Sick Building Syndrome, 9 J. Envtl. L. & Litig. 173 (1994).
* See California Jury Instructions, BAJI No. 3.00 & 3.01.
* Sabella v. Wisler (1963) 59 Cal. 2d 21; See also Del Mar Beach Club Owner's Ass'n v. Imperial Contracting Co. 123 Cal. App. 3d 898 (1981).
* Cal. Civ. Code § 1941.
* Ravens Cove Townhomes, Inc. v. Knuppe Dev. Corp. 114 Cal. App. 3d 783 (1981).
* Avner v. Longridge Estates, 272 Cal. App. 2d 607 (1969).
* Pollard v. Saxe & Yolles Development Co., 12 Cal. 3d 374 (1974).
* Knight v. Hallsthammer 29 Cal. 3d 46 (1981).
* Barkett v. Brucato, 122 Cal. App. 2d 264 (1953).
* Cal. Labor Code § 3602(b).
* Easton v. Strassburger, 152 Cal. App. 3d 90 (1984).
* Cal. Civ. Code § 2079.
* Pagano v. Krohn, 60 Cal. App. 4th 1 (1997).
* Padgett v. Phariss, 54 Cal. App. 4th 1270 (1977).
* Kovich v. Paseo Del Mar HOA 41 Cal. App. 4th 863 (1996).
* Medical Aspects of Chemical and Biological Warfare, Office of the Surgeon General, Dept. of the Army, ch. 34, 1997.
* Guidelines on Assessment and Remediation of Fungi in Indoor Environments, New York City Dep't of Health Guidelines, rev. 2000.
* Bioearosols, Assessment and Control, American Conference of Governmental Industrial Hygenists, 1999.
* Field Guide for the Determination of Biological Contaminants in Environmental Samples, AIHA, ch. 3, 1996.
* 509 U.S. 579 (1993).
* 17 Cal.3d 24 (1976).
* People v. Leahy, 8 Cal.4th 587 (1994).
* People v. Stoll, 49 Cal.3d 1136 (1989).
* Texaco Producing, Inc. v. County of Kern, 66 Cal. App. 4th 1029 (1998).
* (No. 97-1709).
* Mozzetti v. City of Brisbane, 67 Cal. App. 3d 565 (1977).
* Ravens Cove Townhomes, Inc. v. Knuppe Development Co., 114 Cal. App. 3d 783 (1981).
* Orndorff v. Christiana Community Builders, 217 Cal. App. 3d 683 (1990).
* Ferraro v. Southern Calif. Gas Co., 102 Cal. App. 3d 33 (1980).
* California Jury Instruction, BAJI Nos. 14.10-14.13.
* California Jury Instruction, BAJI Nos. 14.50-14.52.
* Cal. Civ. Code § 3291.
* Penner v. Falk, 153 Cal. App. 3d 858 (1984).
* Erlich v. Menezes 99 C.D.O.S.6808 (1998).
* 1 Cal. App. 4th 1611 (1991).
* Tucker v. Baxter Healthcare Corp., 158 F.3d 1046 (9th Cir. 1998); Hopkins v. Dow Corning Corp., 33 F.3d 1116 (9th Cir. 1994).