By Catherine Tapia | November 26, 2001 – Featured on Insurance Journal
In what has been deemed the largest personal injury verdict in a toxic mold-related lawsuit in the U.S., a Sacramento, Calif., jury awarded Darren and Marcie Mazza and their eight-year-old son, Bryce, $2.7 million on Nov. 8. That sum does not include the plaintiff’s attorney’s fees and costs, for which John C. Miller, an attorney from the firm of Charter Miller Davis LLP in Sacramento, said he would be filing a cost bill for about another $1.1 million.
The case, which lasted approximately two and a half weeks, stemmed from a lawsuit the Mazzas filed against the owners and managers of the Partridge Point Apartments: Raymond Schurtz and Janak Mehtani, and Westcal Management. The Mazzas rented a unit in the complex from August 1997 until approximately June 2000. The insurer involved, though not named as a defendant, is the California Insurance Group. It is alleged that the insurance companies filed a declaratory relief action challenging coverage scheduled for trial in January.
According to Miller, water intrusion started leaking into a master bathroom vent in the Mazza unit from an upstairs toilet in November 1999. The Mazzas indicated they had repeatedly notified the management about the conditions and requested repair, but that proper steps toward remediating the problems were not undertaken. Miller added that there had been other sources of water intrusion through exterior siding into the apartment from a sprinkler spraying the T111 wood siding. According to court documents, the plaintiffs maintained that “the premises contained toxic mold and toxic mold spores.” Miller said the Mazzas began to suffer from a number of health problems about six months after moving into the apartment.
Miller said that the unit in which his clients resided had levels of stachybotrys, aspergillus and penicillium on surfaces, in air and in a carpet test sample. The court document further states, “On or about January 10, 2000, Plaintiffs first learned, after a specialist tested the Subject Property, that the Subject Property contained toxic mold…On or about July 26, 2000, Plaintiffs treated with a mold specialist physician who informed them their symptoms and ailments might be related to the toxic mold found within the Subject Property.”
The Mazza’s lawsuit was filed in December 2000 and contained six causes of action: negligence; breach of contract; breach of implied warranty of habitability; nuisance; negligent infliction of emotional distress; and constructive eviction. In every one of the claims, the jury was unanimously in favor of the plaintiffs.
Miller also confirmed that the plaintiffs underwent separate types of blood tests, which measured IgE, IgG antibodies. Simply put, the two different antibodies are produced by the human body in response to various antigens. IgE will determine whether an individual has an allergy to, for example, mold, cats, dogs, horses, dust, etc. IgG demonstrates whether a person is having any hypersensitive or respiratory response by virtue of inhaling a foreign substance, and his/her body is trying to fight off that substance.
“The plaintiffs were not allergic to mold according to some of these tests, but the defense witnesses disregarded the two other types of exposures that you have to mold which is an immune response and a toxic response,” Miller said. “Just because you’re not allergic to mold doesn’t mean you’re not going to have symptoms.
“My clients had positive IgG antibodies to the molds found in the apartment, which is consistent with their respiratory symptoms,” Miller continued, adding that the defense identified these symptoms as resulting from an allergy to cats his clients kept in their apartment. “My clients had cats for 11 years with no problems before they moved into this apartment,” he said.
Parties with knowledge of the case noted that the counsel for the plaintiffs worked closely with a Sacramento doctor, who testified to the jury that he connected mold exposure to many of the medical problems about which the plaintiffs were complaining. While the defense argued that there was no medical or scientific basis for the questions, after a separate hearing outside the presence of the jury, the judge allowed the doctor’s testimony to be included. Furthermore, the defense maintained that the IgG was performed as a MAST test, which it stated has been discredited as a valid method. Given the defense’s challenge of the medical evidence, it can be assumed that it will definitely be an issue on appeal.
In fact, the question on many minds within the defense bar, which deals with mold-related cases, is: What evidence was brought in to convince the jury to come to the conclusion it did? Or was it merely a “sympathy verdict”?
The reliability of the IgG referred to in the case, a type of isotype-specific ELISA test, was not conclusively validated in a recent California Department of Health Services fact sheet, “Misinterpretation of Stachybotrys Serology,” which determined that such serology tests “have no clinical application at this time.” The fact sheet also states, “The U.S. Food and Drug Administration has not evaluated or approved these testing methods.”
Miller noted that he himself had called most of the defense’s own witnesses instead of waiting for them be called on directly and then doing a cross-examination.
When contacted by Insurance Journal, Rick Rodgers of Dillion & Rodgers in Sacramento, who was counsel for the defendants, said only that, “We’re going to file standard, post-trial motions and an appeal—and are, therefore, not releasing comments at this time.”
According to experts, the major difference between this case and the $32-million decision in the Ballard mold case in Texas is that in that case—as in another recent California case that resulted in an $18.1 million verdict for the plaintiffs—no evidence of bodily injury came before a trier of fact. At issue was solely the question of insurance handling and bad faith.
In Ballard in particular, the defense made a Daubert motion to exclude all of the evidence the Ballards wanted to put on to show how they had been injured physically by mold. The judge in Texas—a state with a higher standard for admissibility of evidence than California—excluded all that testimony. All the Ballards received money for was the value of their house and mental anguish. They received $8.9 million in attorneys’ fees, but $12 million, the largest single component of the $32 million verdict, was purely punitive or exemplary damages levied against their insurer. The jury never got to the issue of personal injury.