For a period of time, mold exposure claims became a focal point for resourceful plaintiffs' attorneys who brought suits claiming their clients had been exposed to toxic mold and consequently suffered an array of physical and mental health problems, including memory loss, depression, dizziness, confusion, cardiovascular and pulmonary disease, asthma, and weakened immune system (leading to an increased risk for a host of other serious diseases). Many of these cases resulted in large verdicts and significant media attention. However, there appears to be a growing reversal of that trend.

The publication of the American College of Occupational and Environmental Medicine (ACOEM) 2002 position statement, Adverse Human Health Effects Associated with Molds in the Indoor Environment, marked the first and most detailed of four peer reviewed statements from the medical community rejecting the connection between alleged toxic mold and serious illnesses. The American Academy of Asthma, Allergy and Immunology, the American Academy of Pediatrics, and the Institute of Medicine (part of the National Academy of Sciences) each produced their own reports after the ACOEM statement, all of which came to similar conclusions regarding the lack of evidence behind "toxic mold" as a theory. In 2004, a comprehensive study sponsored by the U.S. Department of Health and Human Services and the Centers for Disease Control concluded that there is not "sufficient evidence of a causal relationship" between exposure to mold and any adverse health effects. There have also been virtually no medically accepted epidemiological studies proving that mold makes people seriously ill. Defense attorneys have successfully used these studies, particularly the ACOEM statement, to fight the surge of mold litigation. Likewise, courts have shown a greater willingness to exclude many of the plaintiffs' key medical expert witnesses, thus making these claims more defensible.

Earlier this year, the Wall Street Journal ("WSJ") ran an article challenging the ACOEM statement, implying that there is extensive scientific debate on the link between mold and serious health effects. The article also suggested that the authors of the ACOEM statement may be conflicted as they often work as paid defense experts in mold cases. The ACOEM, which touts itself as an organization committed to evidence-based medical practice, responded to the WSJ article by stating that the article was highly misleading, and that the reporter misreported key facts and misrepresented statements by other groups with which ACOEM was compared. The ACOEM also claimed that the WSJ refused to print its response without explanation. The ACOEM stands by its statement as well-researched, well-written, and clear in its conclusions, although it is admittedly becoming dated. Over the last five years, its conclusions have been introduced many times into evidence in court cases and have been a major obstacle to mold plaintiffs.

The statement does not address the association of mold and mold spores with allergic, infectious, or irritating conditions. In fact, it concedes that these are known and accepted medical reactions. Nor does it suggest that damp or moldy living environments are acceptable. Rather, the statement focuses on the issue of whether "mycotoxins" (metabolic products of mold), absorbed through inhalation of spores in indoor air, are responsible for various diseases under conditions encountered in homes and offices. The ACOEM concludes that the mainstream of medical opinion has decided that, despite years of investigation, the weight of evidence does not support the theory.

So where does this leave the fate of mold litigation? Although there has been a marked decrease in the number of toxic mold claims being filed, they are certainly still around. However, with the lack of scientific evidence and the increased willingness of the courts to exclude key medical expert testimony that plaintiffs need to overcome their causation burden, it seems likely that we will continue to see a downward trend in the filing of personal injury cases attributed to mold exposure, though it is likely that claims that mold exposure caused allergic reaction and irritation will continue to piggyback on other types of claims, especially in the construction defect field.



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