1. HVAC SYSTEMS AND MOLD
John Armstrong, Partner
Horwitz, Cron & Armstrong, LLP
www.hcalaw.biz
jarmstrong@hcalaw.biz

2. What Is Mold?
● Molds are fungi that grow in the form of
multicellular filaments called hyphae.
● Madigan M; Martinko J (editors). (2005).
Brock Biology of Microorganisms (11th ed.).
Prentice Hall. ISBN 0131443291.
OCLC 57001814.
● The “blue” in blue cheese
● Active Ingredient Penicilian
● Active Ingredient in Sick Building
Syndrome: “Black Mold” “Toxic Mold”
Stachybotrys Chartarum (“S. Atra”)

3. What Causes Mold?
● Occurs Naturally Everywhere, Indoors and
Outdoors
● Moisture (water/water vapor)
● Food source (organic material, dust)
● Lack of Light (Darkness)
http://www.epa.gov/mold/moldbasics.html

4. How Do We Stop Mold?
● Stop/Dry the Water/Moisture
● Eliminate Food Source
● Let the Sunshine In
● Clean, Wipe/Dust, Use Bleach/Fungicides

5. Who is responsible for the HVAC
When the HVAC Causes Mold?
● Architect?
● General Contractor?
● Subcontractors?
● HVAC Designer?
● HVAC Installer?
● Plumber?
● Fire Sprinkler Installer?
● Landscaper/Landscape Architect?

6. Why Do We Care Who Is
Responsible for the HVAC
System?
● If the architect of record, the
developer/property owner is responsible
for negligent HVAC design issues
● If the general contractor, the contractor
group is responsible (i.e., general, HVAC
designer, and HVAC installed)
● What Role Did Our Insured Play?

7. How Do We Know Who Is
Responsible for the HVAC
System?
● Look at the project contracts
● Who assumed responsibility for the HVAC
design?
● Architect?
● Builder?
● HVAC Installer?
● What kind of contracts?
● Design Only?
● Design/Build?

8. How Do We Know Whether We
Have A Design Or Installation
Problem With the HVAC
System?
● Going to need HVAC experts;
● Design expert
● Installation expert
● Mold Investigator
● Forensic scientist; mold remediator re causation
issues
● Is Mold Problem Systemic Or Situational?
● Systemic probably design
● Situational probably installation issue

9. What Do We Want to Ask Our
HVAC Experts?
● Who assumed responsibility for the HVAC
Design in the Contracts and in Reality?
● What Was the HVAC Designer Designing
For?
● “Closed” Building
● Openable Windows?
● Hospital “Clean Room”?
● Did Installer Follow Design Or Design
Intent?
● Were Other Contractors Involved?
● Sloped Window Sills? Mold-Resistant Paint

10. What Do We Want to Ask Our
HVAC Experts?
● Regarding Design, Did the HVAC
Designer Take Into Account What the
Building Was Being Used For?
● Did HVAC Designer Account for Where
Building Was?
● Humid Area? Desert? Cold?
● Reasonable Compromise Between Energy
Efficiency vs. Building’s Ability to “Breathe”
● Any Special Regulations Affect Design?

11. What Do We Want to Ask Our
Mold Experts?
● What Is Causing Mold?
● Where is the Moisture Coming From?
● Condensation/humidity in air?
● Pipe leaks?
● Wet construction materials?
● What Tests to Determine Point Source of
Moisture/Cause of Mold?
● What kind of Mold?
● Toxic?

12. How Do We Solve HVAC Mold
Problems?
● Remove/remediate existing mold
● Stop Moisture Intrusion Causing Mold
● Implement Mold Resistant Repair Plan
● Installing more powerful/dryer HVAC unit?
● Sloping window sills?
● Increase sunlight/decrease darkness?
● Using mold/mildew resistant paint
● Educating people re importance of opening
windows, cleaning/drying, and using
bleach/fungicides

13. Can Mold Kill?
● Mold Can Cause Health Problems But No
Deaths Linked By U.S. Center for Disease
Control By Mold Exposure Alone
● http://www.cdc.
gov/ncezid/dfwed/mycotics/related_links.html
● http://www.cdc.gov/mold/links.htm
● http://www.igotmold.net/toxic-black-mold-
symptoms/
● But “Eggshell Skull” Plaintiffs at Risk
● Cancer; HIV+; Organ Transplant Recipients
● Weakened Immune Systems

14. LEGAL ISSUES IN MOLD LITIGATION
● What caused the mold?
[Liability]
● Were injuries caused by mold
exposure? [Damages]
● Admissibility of expert opinion
testimony [Evidence]
● Statutes of limitation [“SOL”]

15. STATUTES OF LIMITATION
● A review of the Statute of Limitations indicates that
the statute that applies depends on the nature of the
injury.
● FINANCIAL INJURY:
● 2 years
● Code of Civil Procedure § 339(1) applies to financial injury for
mold claims.
● INJURY TO OR LOSS OF REAL PROPERTY OR
TANGIBLE PERSONAL PROPERTY:
● 3 years
● Code of Civil Procedure § 338(b) is applicable.
● INJURIES TO PERSONS:
● 2 years
● Code of Civil Procedure § 335.1 is applicable.

16. STATUTE OF LIMITATIONS –
TOXIC TORT CASES
● A Special Limitations Statute, which
incorporates common law “discovery rule”
applies to toxic tort cases under California
Code of Civil Procedure § 340.8.
● This statue applies to ALL civil actions for
injuries from exposure to a “hazardous
material or toxic substance.”
● Its application to mold cases is uncertain,

17. STATUTE OF LIMITATIONS
PERSONAL INJURY – CONSTRUCTION DEFECT LITIGATION
● Deadline for Patent Defect is 4 years after the
improvement is substantially completed (if action is
against persons involved in the improvement, i.e.
designers, planners, contractors, etc. (Cal. Code of Civil
Procedure § 337.1(a)).
● If injury occurs in fourth year after improvement is
substantially completed, the action must be brought
within 1 year after date of injury, irrespective of date of
death, and not more than 5 years after improvement is
substantially completed. (Cal. Code of Civil Procedure §
337.1(b)).
● “Patent” means a deficiency which is apparent by
reasonable inspection (Cal. Code of Civil Procedure §
337.1(e))
● Caveat: statute does not apply to owner-occupied single
unit residences. (Cal. Code of Civil Procedure § 337.1(f))

18. STATUTE OF LIMITATIONS –
LATENT DEFECTS
● Actions for latent defects in the
development/improvement of real property must be
filed:
● Within 3 years of discovery for negligence;
● Within 4 years of discovery for breach of
contract/warranty; and,
● Within 10 years of the date of substantial completion
for ALL OTHER CLAIMS (Code of Civil Procedure, §
337.15(a)).
● California courts have NOT held that these Statutes of
Limitation apply to personal injury claims.
● Generally, for personal injury claims, the deadline is 2
years (Code of Civil Procedure, § 335.1) from the date of
the incident or injury.

19. Assuming the plaintiff isn’t
time-barred, what next?
● Hire an expert!

20. Expert’s Role in Mold Cases
● Success Depends On The
Admissibility And Credibility Of
Experts
● Experts include industrial hygienists,
mycologists, toxicologists,
aerobiologists, microbiologists,
analytical microscopists,
neuropsychologists, immunologists,
M.D.s, and construction experts

21. Admissibility of Expert Testimony
● Split In Federal and State Courts
● Federal Courts (And Many States)
Follow U.S. Supreme Court’s
Daubert Decision
● Others, Like California, Follow
The “Kelly-Frye” Rule

22. Daubert And Its Progeny
● All Federal And Some State Courts
Admit Expert Opinion Testimony “Only
If” The Expert’s Opinion Is “Reliable.”
● Focuses On The Scientific Method
● Is The Expert’s Theory Provable/Proven?
● Were Proper Procedures Followed?
● Was The Theory Reviewed By Other
Credible Experts?
● Acceptable Margin of Error?
● Is The Theory Accepted By An Acceptable
Number of Other Experts?

23. California’s Kelly-Frye Rule
● Is “Scientific” Evidence At Issue?
(People v. Ward—California
Supreme Court holds rule does
not apply to psychiatry)
● Is The Expert’s Theory Generally
Accepted By The Scientific
Community?
● Is The Expert’s Theory “Novel”?

24. California’s Kelly-Frye Rule
● More Liberally Admits Expert
Opinion Testimony—Except For
“Novel” AND Scientific Evidence
● If Expert’s theory involves
“Science” and is “Novel,” THEN
Offering Party Must Show
Theory is “Generally Accepted”
By the Relevant Scientific
Community for Expert’s Opinion
to be Admitted

25. Where Kelly-Frye Bars Experts
● “Voice-Print” Identification—
California Supreme Court holds
identification device not generally
accepted by a recognized body of
scientists (People v. Kelly)
● Lie Detectors (Frye, federal case
holding not generally accepted)
● Truth Serums (Ramona v. Superior
Court, California Appellate Court
finds not generally accepted as

26. Kelly-Frye’s Application to Mold
Litigation
● Is the theory regarding the cause of
the mold “novel” and “scientific”?
● Is the theory that the mold caused
plaintiff’s harm “novel” and
“scientific”?
● Ordinarily DOES NOT APPLY to
Medical and Psychological Experts
(Wilson v. Phillips (1999))

27. Issues Related to Kelly-Frye: The
“Cottle” Motion
● Cottle v. Superior Court (1992) 3
Cal. App. 4th 1367, appellate court
approves requirement that plaintiff
must make prima facie case that
defendant caused plaintiff’s injuries
● Facts: 175 homeowners and renters
sued a developer for personal
injuries allegedly sustained from
exposure to toxic waste

28. More on Cottle
Trial Court Required Each Plaintiff To
Identify:
● The injury-causing chemical or toxic
substance;
● Dates, manner & place of exposure;
● Nature of injuries;
● Each medical expert who supported
each plaintiff’s injury claim

29. The Cottle Motion
● Each Cottle plaintiff who failed to
identify one or more of the items
required by the trial court had his
or her claim DISMISSED
● RESULT: Defendants now bring
Cottle motions before trial to
require plaintiffs to make a prima
facie case on liability and damage
● LIMITS: May not work outside
complex, multi-party cases

30. Other Limits On Cottle Motions
● Cannot require plaintiffs to submit
expert declarations
● Cannot avoid requirement that
defendants bring summary judgment
or other dispositive motion
● BUT: Trial court can order plaintiff to
state facts supporting claims
(Hernandez v. Superior Court
(2003))

31. How Do Juries React To Mold Claims?
● Jury verdicts range from defense
verdicts to multi-million dollar
recoveries
● Why?
● Credibility of Claims
● Credibility of Experts
● Attorney Expertise (Or Lack
Thereof)

32. How Do We Evaluate Mold
Claims?
● Good Fact Investigation: How
bad does the mold look? How
sick are the plaintiffs? How much
property must be
destroyed/repaired to remediate
the mold? What are the most
likely causes of mold?
● Good Expert Evaluation: How
credible is the expert? How
qualified? Can expert
communicate/explain well?

33. Damp Indoor Spaces And Its Effect
On Health
● There is no generally accepted
definition of dampness or what
constitutes a dampness problem.
● There is no single cause of
excessive indoor dampness and
the primary risk factors for it
differ across climates, geographic
areas and building types.
● Institute Of Medicine of the National Academies
Washington, D.C. www.nap.edu

34. Damp Indoor Spaces and Its
Effect on Health
● One consequence of indoor dampness is
new or enhanced growth of fungi (mold)
and other microbial agents.
● Mold spores are regularly found in
indoor air and on surfaces and materials
– no indoor space is free of them.

35. No Standard Definition of
“Dampness”
● How free of microbial contamination a
surface or building material must be to
eliminate problematic exposures of mold to
occupants is unknown. This is based in part
on the notion there is no single generally
accepted term defining dampness or damp
indoor spaces or moisture; or what
constitutes excessive moisture in buildings.
● Protocols still need to be developed to
characterize the nature, severity, and extent
of the dampness as it affects mold growth.

36. Research and Definitions Are
Incomplete
● Research is in the early stages of understanding
the microbial ecology of buildings
● the length between dampness,
● different building materials and
furnishings
● microbial growth, microbial
interactions, dampness-related
chemical emissions from building
materials, and

37. Exposure Assessment
● There is a general lack of knowledge regarding
the role of micro-organisms in the development
and exacerbation of diseases found in
occupants of damp indoor environments.
● lack of valid quantitative exposure-
assessment methods
● Poor knowledge of which specific microbial
agents may primarily account for the presumed
health affects.
● Very few biomarkers have been
identified.
● The validity of exposure not known.
● The entire process of exposure is
poorly understood.

38. Methods for Assessing Human
Exposure to Mold
● Present methods are poorly
developed and more research is
needed.
● Difficulty is related to the large number of
mold species
● Mold allergen content and toxic potential
vary among species.
● The best known method is still counting
cultured colonies, which is problematic

39. Toxic Effects Of Mold/Bacteria
Toxicological studies, which examine toxic
effects using animals or cellular models,
cannot be used, by themselves, to draw
conclusions about human health effects.
● Such studies have established that exposure
to microbial toxins can occur via inhalation
and dermal exposure and through ingestion
of contaminated food.
● The doses of such toxins required to cause
adverse health effects in humans have not
been determined.
-Damp indoor spaces and health, Institute of Medicine
(U.S.). Committee on Damp Indoor Spaces and Health

40. Stachybotrys Chartarum, Toxic Mold?
● The effect of Stachybotrys on humans has not
been proven.
● biologically plausible, but not proven
● Research has found sufficient evidence of an
association between exposure to damp indoor
environments and some respiratory problems in
asthmatic persons
● Epidemiologic studies also show there is
sufficient evidence to conclude the presence of
mold indoors may be associated with upper
respiratory symptoms in susceptible persons.
● But EXCEPTION for Weak Immune Systems!

41. Limited Or Suggestive Evidence
● An association between
exposure to damp environments
and shortness of breathe, lower
respiratory illnesses, or
otherwise healthy children and
the development of asthma.
● It is not clear whether the later
association reflects exposure to
mold or bacteria.

42. Inadequate or Insufficient Information
● Insufficient information to
determine whether damp indoor
environments or agents associated
with them are related to a variety
of health issues, including Acute
Idiopathic Pulmonary
Hemorrhage In Infants (IHPHI).
● The CDC has been encouraged to
pursue surveillance and additional
research on this issue.

43. Difference between
Scientific and Legal Cause
● Scientific community: If X,
then Y 90% of the time, then X
“causes” Y
● Legal community: If X, then Y
50%+, then X “causes” Y—
“More Likely/Probable Than
Not Standard”

44. Key Daubert/Kelly-Frye Case
Citations
● Daubert v. Merrell Dow Pharmaceuticals (1993) 509
U.S. 579
● Kumho Tire Co. v. Carmichael (1999) 526 U.S. 137
● People v. Kelly (1976) 17 Cal.3d 24
● Frye v. United States (D.C.Cir. 1923) 293 F. 1013
● People v. Leahy (1994) 8 Cal.4th 587
● People v. Ward (1999) 71 Cal.App.4th 368
● Ramona v. Superior Court (1997) 57 Cal.App.4th 107
● Wilson v. Phillips (1999) 73 Cal.App.4th 250

45. Questions?
● War Stories—Case Study Multi-Million Dollar Mold
Trial—Admitted Mold But Proved Client Wasn’t The
Cause