Affordable Housing Institute – The Challenge of Mold – The Sickness & The Litigation

March 2, 2009

Part 1 – The Sickness

When mold first appeared as a new risk a decade ago, I was a skeptic.

Grumpy_skeptic
And grumpy too

I’d seen the questionable science of ‘connective tissue disease,’ and radon before that, and the grand-daddy of them all, the asbestos-remediation hysteria. (Yes, asbestosis is a hideous disease, caused by the buildup of insoluble asbestos in the lungs, and yes, if you work at Johns Manville for twenty years assembling friable asbestos insulation, you can die of it, but no, if you’re working in a normal office building with vinyl asbestos tile or an asbestos popcorn or insulation ceiling, your odds of expiring are really low.)

I had to be convinced that mold was real.

Over the ensuing decade, I became convinced it is real.  Mold affects maybe 5% of the population, but for some of those affected, it can be a hell.  For when I noticed a Washington Post story on one family’s struggles with in-home mold, I was prepared to be convinced either way.

Jury_box
A blogger’s representative audience: impatient and bored

In the interest of opening with a grabber, the Post’s article jumbles time; in the interests of providing education, and placing readers in the blogospheric jury box, I’ve unjumbled it.

Heads_jumbled
For those of you who can’t make head or tail of it

There are eight scenes and a moral.

1. In 2005, the family bought a house

Wendy Meng said their new home sat on the premier lot in the neighborhood, on half an acre, with a pretty pond behind it. She and her husband loved the wrought iron staircase, Brazilian cherry flooring, high ceilings and three fireplaces.

“We were so excited. This was my dream house,” she said. “I used to come down in the morning and pinch myself. It was so beautiful.”

Wapo_sick_house_suffering_family_paul_090201
From the Washington Post:
Paul and Wendy Meng, at their mold-filled home in Chantilly. Family members have suffered migraines, nosebleeds and other problems.

Before moving into their new 5,900-square-foot house in the Tall Cedar Estates subdivision in November 2005, the Mengs said, they asked the Drees company to fix a few problems, including leaky windows in the basement.

Such minor touchups – punch-list items, they’re usually called – are a common enough feature of brand-new homes in new subdivisions.  Smell details are overlooked.  Some screws are left untightened.  Soil conditions may differ slightly from what was expected.  Houses settle. 

2. The family got sick

We think of the home as a haven, so it’s more than unsettling to discover that the house is insidiously attacking.

Amityville_house
Honey, maybe we should just rent before buying?

The migraines began three months after Wendy Meng moved into her new Loudoun County house.

Unlike the case I posted about in the problem with owning, where the ‘latent’ defects arrived seven years after the families bought their houses (at bargain-basement prices, too), these arrived quickly – and had severe effects.

They lasted for hours, forcing her to sleep in her closet because she was so sensitive to light.

I’m also wary of psychosomatic effects, but again, these effects are serious.

Then her heart rate started spiking.

Mold affects roughly 5% of the population, but for those severely affected, it can be a hell.

Before long, her 8-year-old daughter, Emma, started having headaches, feeling dizzy and suffering nosebleeds. Wendy’s husband, Paul, a runner on the track team in college, was short of breath after climbing the stairs. A raft of tests by doctors came back negative. The Mengs were chronically ill, and they had no idea why.

Terrifying.

But over the next year, they noticed a pattern: The more they were out of the house, the better they felt. After doing some detective work, they discovered that the source of their pain was the place they called home.

Everybody may now chant, correlation is not causation. 

Chanting_monks
“Correlation is not causation Correlation is not causation Correlation is not causation…”

In February 2006, the migraines began. “We were very scared. I was in bed 95% of the time,” said Wendy Meng, 37. “All we ever wanted was to be able to have a home.”

Adding to mold’s insidiousness is its imperceptibility.  You don’t see it, you don’t feel it, you don’t smell it.  You just get sicker and sicker of it.

On March 30, 2006, she went to see her family doctor in Herndon, who noticed one of her pupils was dilated. The doctor called an ambulance, and she was rushed to a hospital and given a CAT scan, she said. She was given heavy painkillers, referred to a neurologist and released, she said.

She was readmitted to the hospital for four days in April with a racing pulse and high blood pressure. She was referred to a cardiologist, and another battery of tests was inconclusive, she said.

The Mengs are experienced the kind of terror routinely suffered by urban dwellers In the nineteenth century, who would come down with typhoid, cholera, or diphtheria without knowing whence came the disease or how to stop it.

Cholera_epidemic_1849
Infectious diseases have long been mysterious

Because mold sickness is a byproduct only a highly technological (hence affluent environment), its epidemiology is still being discovered. 

The pattern of tests, referrals and failed treatments would continue over the next year, Wendy Meng said. She was hospitalized seven times and experienced memory loss, heart palpitations and difficulty breathing, all without knowing why, she said. Meanwhile, the rest of her family was getting sick, too. Emma, now 11, had her nose cauterized with acid three times to prevent the bleeding, Wendy Meng said.

Good gracious.  Imagine your fear.

Paul Meng, 48, and daughter Kaleigh, 12, developed asthma.

(Asthma is another urban-society whose epidemiology is mysterious.)

During trips to the emergency room, Wendy noticed that her pain would often subside. Just a few hours out of the house was often all it took, she said.

In the mid-nineteenth century, the miasmatic theory of disease transmission was all the rage (and to be fair, lots of diseases are airborne).  Ironic that now, ‘miasma’ is as good a name as any for living in a moldy house.

Miasmatic_cholera
Cholera as a miasma sweeping over the battlefield

My husband could see it on my face,” she said. “He could physically see the pain leave.”

3. The house had nasty mold

In January 2007, the company had the basement windows repaired, and Paul Meng bought a home testing kit for mold and radon, on a hunch that air quality might be a factor, the Mengs said.

He sent the samples to a lab, which reported finding “unusual mold conditions.” The couple then hired professionals to repeat the tests, with the same results. Drees was informed, and in February 2007, the company hired a contractor to do an inspection. The inspection turned up mold, and the contractor made recommendations for removing it.

The next month, the Mengs received a letter from Drees saying the company was not responsible for carrying out the recommendations, according to court papers filed by the Mengs.

Moldy_house_icon
Not my fault!

In researching this post, I found that the Mengs have now created a Web site, www.donttrustdrees.com.

A Drees executive told Paul Meng that the illness was “all in your wife’s head,” Paul Meng said.

Recall this is the plaintiff talking, but even so – ack!

The Mengs have posted a two-page pathology report of Wendy Meng’s condition.  

Shoddy construction and unmended leaks had let moisture in, allowing toxin-producing mold to grow and spread through the three-story house, the Mengs said.

Mengs
The Mengs in front of their house

Part 2 – The Liability

Six_weeks_moldy_house
What six weeks in a moldy house can do to you

Untangling the Washington Post story into its logical sequence, the Mengs went in to court seeking to prove the remaining five parts of their logic chain:

4. The mold showed up after the house was built

The Mengs had identified some punch-list items, which Drees had corrected:

Drees told the Mengs that the windows had been fixed, but puddles in the basement persisted after the family moved into its $900,000 home in the Chantilly area of Loudoun, the Mengs said.

The factual question is whether there was mold.  I presume there must have been.

They later learned that Drees had not allowed the house’s frame to dry before installing drywall, creating the perfect conditions for mold to thrive all over the house, the Mengs said.

This too is a factual issue to be determined at trial, but let’s assume it’s right.

Chin S. Yang, a mycologist who testified as an expert witness in the trial, said that mold grows in houses when excessive moisture is present and that the problem became more common after drywall largely replaced plaster in home construction.

Dr. yang certainly seems to be an expert on the subject.

Sampling_microorganisms
Co-author of a text on the subject

He said the paper in drywall contains sugar polymers that can serve as food for organisms.

As I posted in dreamers versus plumbers, it’s not how you design it that mattes, it’s how you build it. As I noted, it’s dangerous to flout Padfield’s law of complicated structures.

law-construction-complexity3

5. Removing the mold coincided with their return to health

Meanwhile, the Mengs applied the engineering approach: change something and see what happens.

In April, Wendy Meng took a four-day trip to Williamsburg. Her headaches stopped completely, she said, and “the pain just lifted.” When she returned home, the migraines quickly returned and the next weekend she was hospitalized again.

They had no choice but to move, the Mengs said.

Taking only their beds, a couch, a table, some teddy bears and clothes that had been dry cleaned, the family moved to a South Riding townhouse that April. The sickness continued, but to a lesser degree, they said. The mold had contaminated their possessions and had followed them to their new home, they later learned.

Makes you believe in malicious spirits, doesn’t it?

Last March, the Mengs went to see Ritchie Shoemaker, a doctor on Maryland’s Eastern Shore who specializes in illnesses caused by water-damaged buildings. He said mold and other microbes in the house had produced toxins that made the Mengs sick.

Shoemaker said their possessions had been contaminated, too, and the family threw away almost everything, including family photos, baptismal gowns and toys. “He said we had to get rid of everything we had,” Wendy Meng said. “When we moved [again] . . . we didn’t even bring a sock.”

The Mengs moved to Aldie in March last year. In September, they went to a bio-detox center in South Carolina for about a month to remove toxins that had built up in their bodies. The children missed about a month of school, and “that’s been challenging,” Paul Meng said.

Among other treatments, the Mengs sat in 150-degree saunas for three hours a day.

Wapo_sick_house_suffering_family_wendy_090201
From the Washington Post:
Wendy Meng gets her daily oxygen treatment at a rented home in Aldie, where the family moved last March. The Mengs moved to South Riding before that.

Since the Mengs all got sick, and were not sick until they moved in to the house, one can point to the house as a probable cause.  Further, if mold spores had gone into their lungs, it could be quite some time before they are flushed out.

I felt like I got my life back,” Wendy Meng said, though she and other family members still have problems.  Paul and Kaleigh have asthma.  Wendy and Kaleigh are on a daily regimen of oxygen treatments, and Wendy has painful muscle spasms in her neck and shoulders from time to time.

6. They sued the home builder

The Mengs were unable to get satisfaction from their builder:

“We kept on hoping that Drees was going to do the right thing,” Wendy Meng said. “All we asked them to do was put us up somewhere while they got the house completely cleaned . . . and they wouldn’t do it.”

Not_paying_attention

They filed a lawsuit against Drees in Loudoun County Circuit Court that August.

Litigation is a blunt instrument.  But it gets the mule’s attention.

Being_hit_on_head
Oh, you got a copy of our filing?

Paul Meng, who co-owns a company that automates systems in commercial buildings, said he never wanted it to go to court. “Court is the last resort. . . . We still trusted them. We had expected them to come through for us.”

7.The home builder said it didn’t happen, and if it did, it wasn’t our fault

In court, the company:

[1] Denied that the way it assembled the house led to the mold
[2] Said it was not responsible for cleaning it up
[3] Said it did not think that the mold made the Mengs sick

Though this three-tier defense sounds risible out of context, it’s actually fairly reasonable.

Three_tiers
We’re still constructing our defense

Working backwards:

[3] The company needn’t concede that the mold made the Mengs sick, although the overwhelming preponderance of evidence (presented in the WaPo article) favors that conclusion.
[2] Is a consequence of [1].
[1] Is the core question – was the company’s construction faulty?  If it was, and if that led to mold, it’s hard to avoid being found liable, since the Mengs are clearly sick, and clearly have been at their wits’ end for some time.

As one might expect, given that summary …

8. The jury found for the plaintiffs

A Loudoun jury recently awarded the family $4.75 million, among the largest awards in a mold case in Virginia.

But by no means the only one, as the attached newspaper clipping shows.

Mold_settlement
$22.6 million for some timbers

Jurors said the home’s builder, the Drees Co., was negligent and violated the Virginia Consumer Protection Act. They said the company was responsible for the couple’s health problems but not those of Emma, their youngest daughter.

Litigators whom I know are divided on jury trials.  Some like them when there is a David-versus-Goliath story, or a consumer-versus-company tale, counting on the jury’s natural sympathy for the party more like themselves – particularly if personal-injury is involved.  My own experience (as an expert witness) suggests that juries (except in some states that I’ll decline to name) are wiser than we give them credit for.

Barbara Drees Jones, vice president of marketing for Kentucky-based Drees, declined to comment on the case because attorneys for Drees are going back to court Friday [that is, February 6 – Ed.] to ask the judge to set aside the verdict.

Drees Homes recently won a 2008 award as being among ‘America’s Best Builders.’

Davd_ralph_barbara_dress_jones
Multiple generations of Drees – David Drees, Ralph Drees, and Barbara Drees Jones

I’m sure they really wish this would just go away – which suggests that they think the award must be way too large

Kurt C. Rommel, an attorney for Drees, said it would be inappropriate to comment until the judge enters a decision on the jury verdict.

Kurt_rommel
Rommel thinks it inappropriate to comment

The Mengs still own the Chantilly house, but they said it would cost about $400,000 to remove the mold and make necessary repairs. They’re not sure what to do with it, they said, and are reluctant to sell it for fear it would cause another family health problems.

The Mengs said problems with the house have cost them hundreds of thousands of dollars in medical expenses, legal fees, discarded furniture and other expenses. But they can be replaced.

“If you don’t have your health,” Wendy Meng said, “it doesn’t matter what you have.”

I smell a settlement coming, with a confidentiality agreement provision.

9. The moral: watch your subcontractors!

For developers, there’s an obvious moral.

Horse_through_windshield
Don’t be a horse’s ass?

“What you have is [Drees] not using common sense,” said David H. Wise, the Mengs’ attorney. “They didn’t supervise their subcontractors. . . . They didn’t care when water intruded into the house during construction.”

Whatever the outcome, whatever the settlement, that is the lesson: supervise your subs!

Submarines
You have no idea what’s going on under the surface

Tags – Environmental, Health, Homeownership, Legal, Mold, US News

affordablehousinginstitute.org

See – The connection between the author of ‘The Challenge of Mold’ – Recap Advisors – CAS – Riverstone Residential & Toxic Jefferson Lakes Apartments

This entry was posted in Civil Justice, Environmental Health Threats, Health - Medical - Science, Mold and Politics, Mold Litigation, Riverstone Residential, Toxic Mold and tagged , , , , , , , , , , , , , , , , , , . Bookmark the permalink.

One Response to Affordable Housing Institute – The Challenge of Mold – The Sickness & The Litigation

  1. snelldav says:

    Remarkable blog.

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