Political Action Committee – NAA – files Amicus Brief in mold case (two infant deaths in mold filled apt – Wasatch Prop Mgmt) citing US Chamber/ACOEM ‘litigation defense report’ to disclaim health effects of indoor mold & limit financial risk for industry
“Changes in construction methods have caused US buildings to become perfect petri dishes for mold and bacteria to flourish when water is added. Instead of warning the public and teaching physicians that the buildings were causing illness; in 2003 the US Chamber of Commerce Institute for Legal Reform, a think-tank, and a workers comp physician trade organization mass marketed an unscientific nonsequitor to the courts to disclaim the adverse health effects to stave off liability for financial stakeholders of moldy buildings. Although publicly exposed many times over the years, the deceit lingers in US courts to this very day.” Sharon Noonan Kramer
“Government agencies refer the sick to two medical associations who [sic, purportedly] have physicians knowledgeable about mold induced illnesses, the ACOEM and the Association of Occupational and Environmental Clinics. But the clinics are run by physicians who also members of ACOEM and adhere mostly to the teachings of ACOEM. So, the sick are being referred by our government to those who deny mold causes serious illnesses. These are the same clinics that employers or insurers often times send patients to for independent medical exams that are then used against the sick as a weapon to deny liability for causing their illness because they know the doctors don’t acknowledge mold causes serious illness. The sick are victimized all over again.” Mary Mulvey Jacobson (Testimony before the Massachusetts Legislature’s Joint Committee on Public Health – H2181 – An Act Relative to Air Quality in Schools and Other Public Buildings)
“In the late 70’s, buildings in the US began to be constructed more airtight to promote energy efficiency. Manmade materials such as particle board and dry wall began to be used. These materials easily wick when water is added from floods and leaks in the buildings.
In essence, we transformed our buildings into gigantic petri dishes and provided a food source for molds and bacteria to flourish when water is added. Air conditioners also became the mainstay of construction causing the molds and bacterias to recircluate in the air and spread throughout the buildings.
Over the next twenty years as many buildings experienced water damage, people began to become ill from the mold and bacteria in damp buildings at a rate never before seen in the history of man. Instead of doing the right thing to warn the public and teach the physicians that the buildings were the cause of the increased illnesses, commerce took an orchestrated deceptive measure to stave off the financial liability from the situation.
They systematically marketed false science to the courts that it had been scientifically proven the damp, moldy buildings were no health threat. They brought into the mold issue a toxicologist who had a long term relationship with Big Tobacco, Bruce Kelman PhD; and his business partner, Bryan Hardin PhD. Hardin had just retired from the National Institute of Occupational and Environmental Health (NIOSH). He was beginning a lucrative second career as an expert defense witness in toxic torts bringing his government credentials with him to add credibility. The two men authored two US health policy papers on mold illnesses in 2002 and 2003.
One of the scientifically fraudulent policy papers is presented to the courts as being the scientific opinion of thousands of knowledgeable physicians, the American College of Occupational and Environmental Medicine (ACOEM) Adverse Human Health Effects of Molds In the Indoor Environment – an evidence based position statement.
The other policy paper authored by Kelman and Hardin was specifically written and paid for by the Manhattan Institute think-tank to be shared with judges by the US Chamber of Commerce Institute for Legal Reform (ILR). Judges are “educated” by the ILR that it had been scientifically proven claims of illness from the toxins of mold are only being made because of “trial lawyers”, ”media” and “Junk Science”.
Kelman and Hardin had no research backgrounds in mold, yet they professed to prove what no one else has proven before them or since – that it is scientifically determined the poisons of mold do not poison when people are exposed in damp buildings. They accomplished their novel scientific feat simply by applying mathematical extrapolations to data they borrowed from someone else’s high dose, single mold exposure rodent study. Adding unscientific hypotheticals that fly in the face of the basic tenets of toxicology, their mass marketed nonsequitor of science has saved many a building stakeholder hundreds of thousands of dollars in mold litigation.
Their nonsense was legitimized as “evidence based” science by ACOEM in 2002. ACOEM is not a college. It is a trade association made up largely of company doctors who oversee workers compensation claims. The organization is discussed four times in Dr. David Michaels’ book ‘Doubt Is Their Product, How Industry’s Assault On Science Threatens Your Health’ for their various antics over the years for adding undue legitimacy to the ability to legally deny causation of environmental illnesses that are costly for commerce and industry.
I find it disgusting that the National Apartment Association PAC would submit an amicus curie brief, August 31, 2009, in a litigation involving two new born infant deaths and a moldy apartment complex while, stating, “In a report entitled, ‘A Scientific View of the Health Effects of Mold’, a panel of scientists, including toxicologists and industrial hygienists stated that years of intense study have failed to produce any causal connection between exposure to indoor mold and adverse health effects. U.S. Chamber of Commerce, A Scientific View of the Health Effects of Mold (2003) at p. 64 and p. 65″.
This is because I know and possess incontrovertible evidence that the US Chamber of Commerce Institute for Legal Reform (ILR) “Scientific View of the Health Effects of Mold” is the marketing of a scientific fraud along with her the sister paper, ACOEM’s position statement on mold.
The US Chamber ILR “Scientific View” cites false authorship of having a physician co-author as one of the “panel of scientists”. In reality no physician had anything to do with the ILR’s deceptive marketing piece specifically written for judges. The authors, Kelman and Hardin, do not acknowledge they are the authors of the “scientific view” on their curriculum vitaes as the scientific fraud insidiously makes its way into litigations where they are generating income from expert witnessing for the defense. Such is the case in Arizona involving the two infant deaths and a $25 million dollar insurance policy issued by Travelers Insurance.
What is even more disturbing is that our elected officials in Washington DC on both sides of the isle are well aware of the deceit of the US Chamber ILR and company over the mold issue; yet they remain mum and take no action even when directly requested to do so by thousands.
In the words of Eliot Spitzer in Slate Magazine, October 15, 2009, and regarding lack of accountability for the deceptive practices of the US Chamber of Commerce, “The passivity of the publicly elected officials who have the capacity to raise these issues has been a bit surprising.”
The reality is, state and federal elected officials in the United States of America know it is the kiss of death to their political careers to directly challenge the US Chamber of Commerce. The Chamber has a notorious reputation of instigating smear campaigns and filing lawsuits to vex, harass and silence detractors. As a result of the lack of action by elected officials, US citizens bare the burden and experience the devastating effects from the “Scientific View of the Health Effects of…….Gold.”
Disclosure: In March of 2005, I was the first to publicly write of the unholy union of ACOEM, the Manhattan Institute, the US Chamber of Commerce, Congressman Gary Miller, Bruce Kelman and VeriTox, Inc (formerly known as GlobalTox) over the marketing of a scientific fraud on the courts with regard to the mold issue. Kelman and Veritox sued me claiming the phrase “altered his under oath statements” was a false accusation of perjury made with malice. Since September of 2005, I have been informing the San Diego courts with uncontroverted evidence that Kelman committed perjury as to why I would have malice – in a litigation where his sole claim is that I falsely accused him of being one who would commit perjury. Kelman v. Kramer Case No. D054496 Fourth District Division One Court of Appeal, San Diego.
Since September of 2005, seven San Diego judges and justices have been provided with the uncontroverted evidence of Kelman’s perjury on the issue of malice, including Presiding Justice Judith McConnell who Chairs the California Judicial Review Committee. Amazingly the uncontroverted evidence of Kelman’s perjury is repeatedly ignored by the San Diego judges and justices in a litigation containing information that is detrimental to the interests of the US Chamber of Commerce should their scientific fraud on the courts come to greater public light.”
As taken from page 9 of the August 31, 2009, NAA amicus curie brief submitted in the case of Tricia Mason, et al., Kaitlyn Morris, et al., April Abad et. al., Alicia Stewart, et al. v. Wasatch Prop. Mgmt., Inc., et al. Consolidated:
“In a report entitled, A Scientific View of the Health Effects of Mold, a panel of scientists, including toxicologists and industrial hygienists stated that years of intense study have failed to produce any causal connection between exposure to indoor mold and adverse health effects. U.S. Chamber of Commerce, A Scientific View of the Health Effects of Mold (2003) at p. 64 and p. 65″.
There was no “panel of scientists” that authored the Chamber ILR’s scientific view. Only a long time tobacco scientist, Bruce Kelman, and his business partner, Bryan Hardin. These two have been publicly exposed for their involvement of marketing garbage science to the courts over the mold issue before. In January of 2007, the Wall Street Journal ran a front page expose titled “Amid Suits Over Mold Experts Wear Two Hats, Authors of Science Paper Often Cited By Defense Also Help In Litigation.” Kelman and Hardin were the “authors of science papers” noted in the title.
In a day when no one questions the US Chamber of Commerce’s deceptive science over global warming and their influence over legislators in Washington DC, I question why this deceit before the courts is permitted to continue over the mold issue? I feel completely confident in stating that I have personally witnessed a scientific view of the health effects of GOLD.
Below is a video of Bruce Kelman, under oath, discussing the scientific foundation, payment and false authorship for the Chamber’s “scientific view” that the NAA has submitted in the Arizona mold litigation case involving the two new born infant deaths.” Sharon Noonan Kramer
Chamber Paper Cites False Authorship
Testimony, Bruce J. Kelman June 22, 2004
US. Chamber of Commerce Mold Statement (aka Manhattan Institute Version) July 2003
Testimony, Andrew Saxon, November 28, 2006
Testimony, Bruce J. Kelman, February 18, 2005
Bruce Kelman (GlobalTox) serving as expert witness for Phillip Morris in the Big Tobacco RICO of United States of America v. Phillip Morris et al when the ACOEM & the Chamber used him to author the litigation “defense paper”
Opinion written by Justice McConnell refusing to acknowledge evidence of Kelman’s perjury on the issue of malice when denying Anti-SLAPP motion – “Kramer asked us to take judicial notice of additional documents, including the complaint and an excerpt from Kelman’s deposition in her lawsuit against her insurance company. We decline to do so as it does not appear these items were presented to the trial court.”
WATCHDOG ON SCIENCE – Corrupt Doctors: The UNTOLD Mold Story – Sharon Kramer speaks on the conflict of interest between trade group ACOEM and the need to defend people who are sickened by mold. She reports on her efforts to get a Congressional Investigation on this conflict of interest and the role of Senator Edward Kennedy on deleting this aspect in the GAO Audit.
Support Letters for Hearing on Mold Illnesses and Industry Influence to Henry Waxman, Chairman, Committee on Oversight and Government Reform – documented conflicts of interest, undue industry influence and the misinformation that has been systematically promoted to medical communities because it is costly to insurers and other stakeholder industries should causation of these illnesses be better understood
National Apartment Assn – OpenSecrets – PAC Recipients
National Apartment Assn – OpenSecrets – Fundraising/Spending by Cycle
A FEW LINKS TO THE TRUE HEALTH EFFECTS OF INDOOR MOLD TOXINS – MOLD LITIGATION & THE POLITICS OF MOLD
Logjam at CDC – School Mold Help.org request for CDC to update mold info to correspond with that produced by the World Health Organization – July 2009 & the results of communication with Dr. Paul L. Garbe – Chief of Air Pollution & Respiratory Branch
On behalf of millions of Americans harmed by exposure to toxic mold the following message has been sent to President Obama, all U.S. Senators, members of the U.S. House, the Governors of all 50 states, state legislators, state health departments, etc
Jones v. Steve Jones Auto Group (Re: Exposure to mold in the workplace) – findings of fact that Plaintiff’s exposure to mold at his place of work caused his illness – disability approved by North Carolina Court of Appeals
Information on Riverstone Residential knowingly exposing tenants to extreme amounts of mold toxins at Toxic Mold Infested Jefferson Lakes Apartments in Baton Rouge, Louisiana
2007 – Plaintiff – 1.6 Million – Court Finds Causal Link – Toxic Mold
Recent case from North Carolina may reinvigorate litigation relating to mold claims Plaintiff recovered $1.6 million under a negligence theory of premises liability.
The building in which his office was located had a history of leaks and dampness. During the time of his employment, “he developed irreversible damage to his vestibular system, which is the inner ear organ responsible for balance” allegedly due to his exposure to toxic mold.
The court’s finding of a causal link in this case could prove to be significant as other cases make their way through the courts, and as additional medical research comes to light.
United States – North Carolina Case Brings Toxic Mold Concerns Back Into The Courtroom
by Tanya C. O’Neill, mondaq.com
Just a few years ago, “toxic mold” cases were resulting in multi-million-dollar awards. Health agencies, insurance companies, builders, architects, employers, homeowners, and personal injury attorneys all showed significant interest in mold.
However, within a few years, mold was no longer in the headlines, and plaintiffs struggled to satisfy courts and juries that their injuries were caused by exposure to mold. But a recent case from North Carolina may reinvigorate litigation relating to mold claims.
In Cameron v. Merisel Properties, Inc. and Brian Goldsworthy, N.C. Ct. App., No. 07-54, November 6, 2007 (unofficial), the plaintiff worked for a computer company in North Carolina from December 1998 to April 2000. The building in which his office was located had a history of leaks and dampness. During the time of his employment, “he developed irreversible damage to his vestibular system, which is the inner ear organ responsible for balance” allegedly due to his exposure to toxic mold. The plaintiff sued his employer and building owner and ultimately recovered $1.6 million under a negligence theory of premises liability against the building owner. The defendant challenged the sufficiency of evidence on causation. The court held that sufficient evidence was presented to show that the plaintiff’s injuries were proximately caused by his exposure to mold.
While the plaintiff was in excellent health when he started working in the North Carolina facility, after just a few weeks, he started to have balance and vision problems. Over the next six months, the symptoms worsened. In fall 1999, he was diagnosed with permanent and irreversible bilateral vestibular dysfunction — the loss of the balance function in both ears. When the plaintiff began working for the defendant in December 1998, the walls, carpeting, and ceiling in his office had evidence of water damage, including the presence of mold. Air quality tests performed by the defendant in November 1999 confirmed the presence of mold in the North Carolina facility, and further testing in March 2000 identified Stachybotrys mold in the plaintiff’s office.
The plaintiff was treated by Dr. Joseph Farmer, who performed many tests and ruled out most known causes of vestibular dysfunction. Dr. Farmer concluded that the plaintiff’s bilateral vestibular dysfunction was “caused by ototoxicity, or poisoning of the ears.” After his review of the 2000 air sample results that identified toxigenic molds, including Stachybotrys, Dr. Farmer concluded that the ototoxin causing the plaintiff’s vestibular dysfunction was a mycotoxin, or mold byproduct, from the North Carolina facility.
The plaintiff presented testimony from Dr. Eckhardt Johanning, an expert in the area of occupational and environmental medicine and the effects of mold on human health. Dr. Johanning testified that exposure to mold was “more likely than not” the cause of the plaintiff’s disorder. The plaintiff also offered the testimony of Dr. Jerry Tulis, who was qualified as an expert in mold science, assessment, control, and remediation. Dr. Tulis testified that the plaintiff “was exposed to mold and mycotoxins” at the North Carolina facility, and such exposure “presented a health hazard.”
The defendant argued that Dr. Farmer’s testimony was “mere conjecture and speculation.” However, the court disagreed, finding that Dr. Farmer’s opinion was based upon “far more than speculation” and other evidence offered at trial “established that exposure to toxigenic molds can cause vestibular dysfunction.”
The court’s finding of a causal link in this case could prove to be significant as other cases make their way through the courts, and as additional medical research comes to light. This is an important reminder that clients should continue to adhere to best practices to evaluate, prevent, and address any indoor moisture conditions.
New York Law Requires Landlord Disclosure Of Environmental Test Results To Tenants
Article by Vincent S. Oleszkiewicz
Tenant Notification of Indoor Air Contamination
New York has passed a law, effective December 3, 2008, which requires property owners and landlords to provide current and prospective tenants the results of environmental sampling conducted on the leased property [N.Y. Envtl. Conserv. Law (ECL) Section 27-2405]. The law requires notification of sampling results conducted on indoor air, as well as sub-slab groundwater and soil, when the test results exceed federal Occupational Safety and Health Administration (“OSHA”) or New York State Department of Health (“NYSDH”) indoor air guidelines. This law is intended to address the issue of vapor intrusion into tenant-occupied commercial and residential property in situations where contaminated soil or groundwater, located beneath a building slab or foundation, releases evaporated organic vapors that may enter and compromise the indoor air quality of any above grade enclosed structure.
New Law Applicability
1. Applicable to “Test Results”
Notification of test results must be provided by the landlord to the tenant. The new law defines “test results” to include not only actual indoor air sampling results, but also sample results from sub-slab air, sub-slab soil and groundwater. If sub-slab soil or groundwater results indicate concentration levels that would create indoor air quality issues, the landlord should consider these results to fall under the new law’s definition of “test results.”
2. Applicable Only to Test Results Provided by an “Issuer”
The requirements of the new law apply only to test results that have been provided to the property owner by an “issuer,” which is defined to include:
(a) The New York State Department of Environmental Conservation (“NYSDEC”);
(b) A municipality that has entered a contract with NYSDEC to undertake an environmental restoration project;
(c) A person subject to an order issued pursuant to New York’s hazardous waste and oil spill clean-up laws; or
(d) A “participant” in New York’s Brownfield Cleanup Program (“BCP”).
The definition of participant under the BCP is an applicant into the program who is liable for contamination as an owner or operator. A “volunteer” under the BCP is an applicant not liable for the contamination as a “bona fide” purchaser (i.e., an owner whose liability arises solely from ownership after the contaminants were released). In addition, the new law would not cover test results gathered during due diligence on a purchase or lease.
3. Applicable Only to Test Results Provided by an Issuer That Exceed OSHA or NYSDH Indoor Air Guidelines
The new law also applies only to test results that exceed NYSDH indoor air guidelines or OSHA guidelines for indoor air quality. In general, the NYSDH guidelines for certain chemicals of concern are more stringent than the OSHA guidelines. Under any circumstances, the indoor air quality test results must exceed either the NYSDH or OSHA guidelines in determining whether the owner or landlord must provide notice of the test results under the new law.
Requirements for Landlord Disclosure of Indoor Air Contamination Test Results
If there is a determination that the test results require tenant notification, property owners must provide “all tenants and occupants” with a fact sheet and notice of any public meetings to be held to discuss the test results. Test results shall be provided if requested by the tenant. Property owners have 15 days from receipt of the test results to provide the required notice. Fact sheets for specific contaminants of concern are being prepared by the NYSDH to identify reportable detection limits, health risks associated with exposure to the contaminant and a means to obtain more information on the contaminant. NYSDH currently has fact sheets prepared only for TCE, PCE and Radon.
In situations where a site has: (a) an engineering control in place to mitigate indoor air quality contamination (e.g., passive vapor barrier; active vapor capture system); or (b) if the site is subject to monitoring under an ongoing remediation program, property owners shall provide the following to prospective tenants prior to signing a lease agreement:
(i) fact sheets regarding the contaminant of concern;
(ii) test results upon request;
(iii) any site closure letter received; and
(iv) notice in the lease agreement.
The notice to prospective tenants to be included in the lease agreement must contain the following language in at least 12-point, boldface type on the first page:
“NOTIFICATION OF TEST RESULTS. The Property Has Been Tested For Contamination Of Indoor Air; Test Results And Additional Information Are Available Upon Request.”
While the law is silent on the issue of penalties, a property owner who violates the disclosure requirements could face general criminal or civil penalties under New York statutes ECL §§71-4001 and 4003, which provide for imprisonment, injunctive relief and $500 per violation and $500 per day for each day the violation continues.
Uncertainty Regarding the New Law
Does it apply retroactively? If the law applies retroactively, then there would be a requirement placed upon landlords to research and review whether a site has historic indoor air quality test results and whether those test results (if they exceed applicable NYSDH or OSHA guidelines) must be reported to current tenants and building occupants. Theoretically, there would be no limit on a search back in time for potential test results.
The law requires notification of test results to “all tenants and occupants.” There is likely to be uncertainty as to who the “occupants” are that the law refers to as requiring notification. Would “occupants” be considered customers who enter an establishment? Would employees working in a retail setting be considered “occupants”? Further clarification of this issue should be sought through pronouncements from NYSDEC.
The definition of “test results” not only includes tests performed on indoor air, but also tests performed on sub-slab air, ambient air, sub-slab groundwater and sub-slab soil samples. If an owner has only sub-slab soil or sub-slab groundwater results, how is the determination made that indoor air quality exceedances exist requiring disclosure under the new law?
Owners/landlords are required to provide tenant notification of test results from sites in New York that qualify under the terms of the new law. The first step in this process is likely to be to gather available environmental sampling information from owned sites in New York and evaluate that information to determine if disclosure is required. In addition, for future or pending leases in New York, appropriate notice should be provided to prospective tenants, including written notice on the first page of the lease as required by the new law. Tenants in New York may want to evaluate any notice received from the landlord regarding environmental test results, determine whether indoor air quality has been compromised and take steps to potentially mitigate vapor intrusion effects. Ongoing review of pronouncements or amendments regarding the new law by NYSDEC is necessary for clarification of certain ambiguities that may exist in the new law.
Ca Appellate Decision – Mold Env. Hazard (unpublished)
Housing Authority Tenant Awarded $303,834 Verdict For Mold Apartment Claims
Personal Injury Law
Friday, November 28, 2008
BALTIMORE – A Maryland jury on Oct. 20 awarded a tenant of the Housing Authority for Baltimore City $303,834 in damages for pain and suffering and economic damages caused by mold contamination in her apartment (Nornita Hyman v. Housing Authority for Baltimore City, No. C-24- 06-010789, Md. Cir., Baltimore). From Mealey’s Litigation Report: Mold
Eastern District of New York Recognizes “Medical Monitoring” in a Toxic Mold Exposure as a Cause of Action
November 14, 2008
In the field of toxic torts, a person who is exposed to a dangerous substance may not develop symptoms of an injury or illness until years after the exposure. As a consequence, a claim is sometimes brought for what is known as “medical monitoring”. Such a claim seeks compensation for the costs of future medical examinations or tests reasonably intended to detect the onset of latent injuries or diseases caused by the exposure to toxic substances, which the claimant does not presently have but is at an increased risk of contracting in the future.
Medical monitoring may include a claim for future diagnostic tests and studies, used to timely detect and treat cancers and other diseases, preventative care, and therapy for those actually stricken with an illness.
Not all states recognize medical monitoring claims. In others, a perceived absence of clear recognition of medical monitoring claims leads defendants to challenge the rights of plaintiffs to bring them at all.
Recently, in the United States District Court for the Eastern District of New York, a judge addressed such an argument, and ruled that medical monitoring based on toxic exposure stands as an independent cause of action. Judge Arthur D. Spatt in Sorrentino v. ASN Roosevelt Center (September 29, 2008), denied a landlord’s motion to dismiss a class action complaint brought by former tenants of a luxury apartment complex located in Westbury, New York. These tenants had been notified by their landlord that they would have to vacate their premises because water intrusion and mold had been found within spaces between the walls in the Westbury Complex. The tenants needed to vacate the premises in order to do reconstruction work.
In their complaint, the tenants disputed whether their leases had been appropriately terminated. In addition, the tenants added claims for medical monitoring and violation of New York. General Business Law §349.
The landlord moved to dismiss the cause of action for medical monitoring contending that the New York Court of Appeals has never recognized an independent cause of action for medical monitoring, and that such a claim may only be asserted in the form of a remedy. Further, the landlord argued that even if a cause of action for medical monitoring could be maintained, the tenants had failed to allege an actionable toxic exposure.
The tenants had alleged in their complaint that the landlord caused all potential class members reasonable apprehension of a serious illness attributable to living in apartments infested with mold and/or elevated levels of bacteria. Further, the tenants claimed that as a direct and proximate result of the negligence of the defendants, they would need ongoing diagnostic, curative and preventative medical care because of their potential exposure to toxic mold.
Judge Spatt determined that “[a]lthough the New York Court of Appeals has never expressly recognized an independent cause of action for medical monitoring, the Court disagrees with the defendants’ contention that the courts of the Appellate Division have not done so.” Judge Spatt added that “the federal courts in this district have found that ‘in cases involving exposure to toxic materials, the New York Court of Appeals would recognize an independent cause of action for medical monitoring.’ Abbatiello v. Monsanto Co., 522 F. Supp. 2d 524, 538 (S.D.N.Y. 2007) (collecting cases arriving at the same conclusion).”
Further, the Court found that the tenants had properly alleged an actionable exposure to a toxic substance by establishing both exposure to the disease-causing agent and that there was a “rational basis” for their fear of contracting the disease. Citing to New York authority, the Court stated that this “rational basis” has been construed to mean the clinically demonstrable presence of the toxic substance in the plaintiff’s body, or some indication of toxin-induced disease, i.e., some physical manifestation of toxic contamination. The landlord did not dispute that exposure to mold can result in serious health effects. Further, the Amended Complaint contained sufficient allegations that the mold caused by water-infiltration was detected in and around the occupied spaces in the Westbury Complex. Finally, the tenants alleged that at least some of those exposed to the conditions at the Westbury Complex have developed exposure-related health conditions. Accordingly, the Court found that the tenants had stated a rational basis for exposure to a disease-causing agent and there was a rational basis for their fear of contracting the disease. Therefore, the Court denied the motion to dismiss the medical monitoring claim.
The tenants’ case will now proceed into what is known as the “discovery” phase of litigation, in which the parties have the opportunity to investigate the facts supporting the claims and defenses at issue.
By Nicholas Papain, Esq. New York Personal Injury Lawyer concentrates his practice in personal injury, negligence, premises liability, and products liability litigation.
I posted the story about this case in June and as I said then these tenants in a higher end complex and a higher income level will have their rights protected as they should. It helps that they are obviously not dealing with a notorious, unethical landlord. Their attorney seems to be working for them and not the defendant. It also seems there wasn’t corruption in court and the Judge acted like the intelligent, professional Judge he is supposed to be. And I guess there is no mold inspection report and a state agency that ignored it and all the corruption that goes with that.
Other than that, the actual case we have is similar but playing out very differently.
I have to say I was a little upset when I read this update. I am sick right now and not from my own choosing and getting worse every week – the baby has asthma now and has had pneumonia several times – my daughter is constantly sick – and yet we can’t get the medical treatment needed because the responsible party that knowingly exposed us to a tremendous amount of mold is a huge unethical, greedy, affordable housing mafia king slumlord – Riverstone Residential – who can threaten or use who they know – to keep from being accountable for what they owe us for medical care that we would not need if it were not for them.
We are caught up in a nightmare of corruption. Our health has been seriously affected by others who allowed this to happen. There is so much evidence showing they know about this. Now we are victims of their corruption as they make sure they are not accountable and they would also like to continue leasing toxic apartments. It is a tangled web of greed and broken laws between Riverstone Residential and the Louisiana Housing Finance Agency (their job description is to provide safe, affordable housing) and neither want to acknowledge this. So, for the sake of these criminals all of our rights disappear and we are supposed to accept that ? I don’t think so. We also have to act in the best interest of my daughter’s baby who had just turned one when these people allowed him to be exposed to and breath in heavy doses of toxins. Out of all the illegal things done by these people that is the most criminal act of all. And they still lease those apartments. katy
Post from June
Note by Katy – Notice the difference as to why this apartment building is quickly cleared of all residents but in cases such as the one at Jefferson Lakes Apartments in Baton Rouge, LA managed by Riverstone Residential the residents and extremes amount of toxic mold are ignored. The difference is the residents in Westbury can better afford attorneys if there is a need to litigate. At Jefferson Lakes – Riverstone and state agencies know the residents in this complex generally would not have the financial resources for lengthy litigation and in fact are so comfortable in their knowledge they ignore documented Microbial Testing Reports, complaints and laws and joining them in this are the state agencies and courts. Money is only spent on this issue if there is a good chance litigation could be pursued which might cost them more in the end. This is obvious DISCRIMINATION AND A PUBLIC HEALTH THREAT. At least it is to the residents no longer living there but who have been possibly harmed and those living there now and the people who will be allowed to move in with no warning. All is ignored. Except of course in cases such as Westbury. Katy
Toxic Mold in Westbury, Long Island Apartment Complex Forces Residents to Relocate
Nov 29, 2007 | Parker Waichman Alonso LLP
Toxic mold exposure can cause serious health problems as the residents of a Long Island luxury apartment building recently found out. This week, the 21-building Westbury community on Corporate Drive is being cleared of all residents in nearly 400 apartments following reports of mold- and mildew-infested buildings. Archstone-Smith-a Colorado-based company that developed and manages the complex-discovered catastrophic water damage and must serve formal lease termination notices to residents who will need relocate by March 31, 2008. Residents, who say they’ve been reporting water problems to Archstone-Smith since 2005, called the situation outrageous and disgusting, saying they’ve endured leaky windows and grotesque mold in their home. Many report that they have been sickened with respiratory ailments. Building managers considered these isolated problems until an increase in complaints following this year’s rains.
Concentrated mold exposure can cause chronic cough, headaches, rashes, dizziness, excessive bruising, and hearing and memory loss. Black or toxic mold-Stachybotrys chartarum-is pathogenic, produces spores called mycotoxins, and can inhibit DNA and protein synthesis in mammalian cells, obstructing body functions. Toxic mold severely sickens people and pets and is a leading cause of “sick building syndrome.”
Moisture leaked into the inner walls at the Westbury luxury apartment complex, soaking insulation, and potentially compromising interior mechanical systems and structural safety. Hempstead officials said their inspections ensure compliance with state safety and structural codes and could not have detected design flaws or problems leading to water damage. Archstone oversaw construction and says it is too soon to tell whether shoddy construction or design defects are to blame. Town and county officials said they met with Archstone last week and were trying to help relocate residents. Tenants say Archstome painted over damage-such as water stains-instead of correcting problems. Archstone denied this, claiming the company addresses problems immediately. Town inspectors checked the Westbury complex Tuesday for structural damage and reported the complex is safe for tenants in the interim, but an electrical inspection is needed to ensure water had not damaged internal wiring. Archstone said the problem affected all 20 buildings and residents would receive one month’s relocation assistance and an additional stipend between $1,300 to $1,900. Renovations would take about a year; Archstone could not guarantee all tenants would be able to move back into their units. Archstone did not test for mold because there is no governmental standard for mold levels. Health officials say mold is considered homeowners and landlord responsibility adding that, if caught and resolved early, there are no issues.
This is not the first time that the Westbury luxury apartment manager has gotten in trouble for toxic mold. In 2003, Archstone-Smith agreed to pay $25 million to 800 tenants of a Florida complex for health-related issues resulting from a toxic mold. Archstone owns or is an owner in 350 properties-89,000 units-nationwide and claims Westbury’s problems are not consistent with Florida’s where the issue was due to a faulty HVAC [heating ventilation and air conditioning] system.
Long Island’s increasing problems with mold can be blamed on dampness, especially in basements of older structures; however, codes require newer buildings to be airtight, thus moisture can be trapped and mold can grow. Mold and dampness are factors in 21 percent of asthma cases, cost the nation $3.5 billion yearly in health care expenses, and increase the risk of respiratory- and asthma-related illnesses by 30 to 50 percent.
Lawsuit: Health District mold that killed inspector also sickened others
By Jeff German
April 22, 2009
The family of a Southern Nevada Health District inspector who died in 2007 after being exposed to toxic mold at the district’s main office has opened a new front in its legal battle with health officials.
Dan Pauluk’s wife, one of his daughters and his caregiver filed a lawsuit in District Court this week, alleging they were “cross-contaminated” from the mold in Pauluk’s body and have become seriously ill. Laurie Boswell, a co-worker of Pauluk’s, also joined the suit, alleging she has become ill from exposure to mold while working at the health district.
Pauluk’s family is also suing the health district in federal court. It filed a wrongful death lawsuit in August 2007 after an autopsy showed the 57-year-old Pauluk died of mold poisoning. The suit was originally filed in District Court, but later moved to federal court.
The allegations at the center of the legal battle are ironic in light of the fact that the Health District defines its mission as protecting the health and well-being of Southern Nevadans.
In its latest suit, Pauluk’s family contends health district officials’ “despicable misconduct” included conspiring to cover up the extent of the mold problem at the 625 Shadow Lane headquarters.
The suit also alleges that the health district was “fully aware of the high rate of sickness” at the health district building and fraudulently presented the building as a safe work environment.
This was done with “malice” and “recklessness,” the suit alleges.
As a result of the misrepresentations, Pauluk’s wife, Wendy, his daughter Chrissy and the former caregiver, Dean Zachrison, all have been contaminated themselves and have suffered “severe, serious, disabling and deadly personal injuries,” the suit says. And the family has had to move out of its home, which has become inhabitable.
Dan Pauluk, the suit adds, “wasted away” in front of his family “through the experience of protracted, extremely outrageous, severely painful and debilitating disease directly due to knowing exposure of toxic mold substances by the defendants.”
Tracy Eglet, managing partner of Mainer Eglet Cottle, the law firm that prepared the suit, said in a statement that other employees might also be at risk to serious illness from mold poisoning.
“There is a high probability that many other employees and their family members have been affected by the mold presence in the health district building,” Eglet said. “We are considering the viability of a class-action lawsuit.”
Jennifer Sizemore, a spokeswoman for the health district, declined to comment.
“Unfortunately, we can’t comment on it because it involves ongoing litigation,” she said.
Besides the health district, Glenn Savage, director of the district’s Environmental Health Division, where Pauluk worked, and one of Pauluk’s former bosses, Edward Wojcik, who is now retired, are also named as defendants in the suit. So is Jerry Boyd, the district’s facilities manager.
In the federal suit, Pauluk’s family alleged that most of his exposure to the deadly mold occurred after February 2003, when Pauluk was transferred back to the main Shadow Lane office. The mold was attributed to water leaks in the ceiling above his desk.
His health slowly began to deteriorate, and in August 2005 he was diagnosed with a chronic lung disease, the suit alleges. All the while his bosses denied his requests to be transferred out of the main office.
In September, in response to concerns he voiced about his health, a health district human resources executive showed him a study that indicated the building was safe, the suit says. But later that month, Pauluk learned that his blood contained high levels of toxic mold. Even then, he was not allowed to move out of the building.
In October, following a confrontation with one of his supervisors, Pauluk finally got his wish. He was moved. But by that time, it was too late to save his life. He died less than two years later.
Sun archives – Public health inspector says toxic mold made him sick (3-26-07)
Video – Mold Inside the Health District – Death – Toxic Mold – Aspergillus & Stachybotrys
From from article –
The Health District recently failed in its effort to get the Pauluk’s federal lawsuit thrown out of court.
“He was literally eaten alive from the inside out by toxic mold, aspergillus and stachybotrys.”
“In paperwork year after year dating back to 1998, the Health District’s own studies show the presence of mold in the building and the need for remediation.”
Miami Court – Fungus Nailed Judge Ted Klein & Endangers Others – Federal Incompetence is to Blame
By Tim Elfrink
Published on September 04, 2008
Once an active skier and runner, U.S. Magistrate Theodore Klein could hardly breathe. His face was swollen from steroids. And he had to wheel around a portable oxygen canister.
He knew his killer long before he perished in September 2006.
“Ted strongly believed it was the mold in the courthouse that was killing him,” says Ed Shohat, Klein’s old friend and law partner. “Well, look at it. He’s a healthy guy; [then] he goes to work in that moldy old courthouse and he dies.”
Klein, who was 66 when he passed away, is just the most tragic casualty of federal incompetence in downtown Miami’s courthouses. Not only has a lethal mold outbreak at the David W. Dyer courthouse endangered dozens of staffers and judges, but also it has sunk public access to records and sludged the wheels of justice in one of the nation’s busiest districts. Worse, it might never have been this bad if the government hadn’t fallen three years behind schedule and run $63 million over budget on a new courthouse.
Now a lawsuit over the mess could cost taxpayers millions more.
“I find it amazing that anyone would still work in that building,” Shohat says. “I just don’t get it.”
The Dyer courthouse, at NE First Avenue and Third Street, has hosted as twisted and bizarre a cast of characters as any public building in America. From Miami’s 1940s gang lords to Panamanian dictator Manuel Noriega to a never-ending parade of corrupt city officials, scores of notorious wrongdoers have walked under the courthouse’s seahorse-shaped doorframes to face Lady Justice.
Marion Manley, one of the first female architects in Florida, collaborated with two others to design the Spanish Revival-style courthouse with a pitched red tile roof, a palm-shrouded courtyard, and grinning, mustached gargoyles. It became an icon soon after opening in 1934. “For people who lived in Miami at that time, this building was justice,” says Paul George, a historian at the Historical Museum of Southern Florida.
In 1998, as shady international banking, drug smuggling, human trafficking, and organized crime ballooned the court’s docket, Congress funded a new, $100 million federal courthouse at 400 N. Miami Ave. The avant-garde firm Arquitectonica was hired to create a new icon for downtown Miami. Designers dreamed up a cruise-ship-miming glass hulk, sailing boldly through tightly manicured waves of grass.
The government couldn’t build it nearly as quickly as planned. Hurricanes Katrina and Wilma rocked the construction site. Electrical systems exploded. Contractors bickered. And the lead firm — the aptly named Pennsylvania-based Dick Corp. — walked off the job. Promises of a new courthouse by 2005 morphed into 2008. A $100 million budget bloated to $163 million.
As potential finish dates passed, a well-respected private defense lawyer named Theodore Klein got a long-awaited chance in 2003 to serve on the bench just down the street at the Dyer building. The son of a rabbi who had fled the Nazis in Czechoslovakia and landed in Miami, he had narrowly missed a Clinton appointment to the federal bench 10 years earlier. Congress never voted on his name.
“I always saw my father as someone who stood up for what was right,” says Klein’s daughter Jennifer, a Yale history professor. Klein once resigned from the Dade Heritage Trust because it met at Miami Beach’s Bath Club, which once denied Jews the right to join.
What Klein didn’t know as he set up shop in his second-floor chambers, according to his family, was that years of poor upkeep had given toxic fungus free reign to grow.
In the early Nineties, the family argues in an expanded lawsuit filed against 13 Miami contractors last week, contractors botched a gutter-installation job and rainwater poured in. In 1996, roofers put a defective new lid on the place. They added bad caulking and waterproofing three years later. Year after year, the family alleges, contractors let more and more rain soak in.
Two separate studies — one by the U.S. Public Health Service in January and another by a firm hired by Klein’s children in April — found mold clinging to walls and multiplying under wallpaper around the old courthouse. On a scale of one to four, the Kleins’ experts found several rooms harboring “four-plus” levels of penicillium/aspergillus, a fungus known to cause lung infections and skin rashes.
“There are areas in the courthouse where … the experts said … ‘You either put on a mask right now or you leave,'” says Alan Goldfarb, the attorney representing Klein’s children. “It’s that bad.”
Klein never knew the extent of the mold. He was skiing in Colorado in December 2005 when he came down with the shortness of breath that killed him less than a year later. But he saw the signs that something was amiss at the courthouse, Goldfarb says. Clerks left with nosebleeds, secretaries fell ill, and many staffers worked from home rather than deal with the sickly atmosphere.
After the mold problem came to light, the court sealed its basement, where thousands of case files sit in stacks. Later Klein’s experts found a deadly fungus on “a number of wooden shelves” holding records and surrounded by discarded carpets and furniture, including one leather chair “covered in surface mold.”
Now, once a week, an employee at the court’s records department pulls on a full-body plastic suit and facemask and then scans files into a computer so that no humans have to come in contact with them. Requests, understandably, take longer than in the past to fulfill.
Lots of people still work in the building. On a recent day, only two floors up from the sealed basement, Magistrate Judge John J. O’Sullivan glared over square-rimmed glasses, recommending bail and appointing lawyers to dozens of olive-garbed prisoners. They were all just a few dozen feet from Klein’s closed courtroom.
The federal General Services Administration, which owns the building, says it has closed all the areas in the courthouse where dangerous mold has been found and has begun “preliminary” cleanup efforts. The major cleanup “will begin once all the occupants are relocated,” says Gary Mote, a spokesman in Atlanta. “We’ve been working with the health department to make sure the people still working there are not in danger.”
A few blocks away at the new Wilkie D. Ferguson courthouse — the long-delayed glass boat of justice — court is finally in session and a steady stream of lawyers, jurors, and cops flows into the 14 stories of allegedly hurricane-proof glass.
But the government is suing Dick Corp. for millions over the delays in finishing the building. A series of passageways built for the U.S. Marshals to securely transport prisoners to the new courthouse only recently opened because an improperly installed fan was filling the tunnels with lead-contaminated air from a nearby firing range. And inside the building, some of the courtrooms still aren’t ready for justice.
News article – miaminewtimes.com
Toxic Existence in 38% of the homes in America
Before Katrina, 38% homes in America contained toxic mold Stachybotrys chartarum. It is now believed by the CDC that 48% have mold growing in one or more areas of the home and the home-owner doesn’t know it, (c.2003 report to the Senate Committee on Public Heath) which led to the de-emphasis on toxic mold backed by the Bush Administration. In 2005, 24 states in the United States passed legislation pertaining to toxic mold but failed to establish how much of the toxin was considered “safe”.
According to phytopathological experts at Johns-Hopkins and Stanford University, 1 once of toxic mold can effect 100 people and change their health for a period of ten years.
Eight in ten American kids show obvious signs of toxins stemming from pregnancy! Mental illness rose 220% in the past ten years alone. This is the basis of our concerns.
Americans are being poisoned by the US Government through de-emphasis and censorship.
Flood victims file lawsuit in federal court – “Persons who inhale such toxic particles will have an increased risk of health ailments possibly including cancer and death”
More than 100 Fernley residents who were impacted by the canal breach and flood last January filed a lawsuit in U.S. District Court last week seeking unspecified damages.
The flood victims are asking for compensation claiming negligence, the infliction of emotional distress and trespass for allowing the flood waters to enter impacted subdivisions.
The United States of America is named as the defendant, more specifically the Bureau of Reclamation and the Truckee Carson Irrigation District as an agency and contractor to the federal government.
The lawsuit, which seeks class action status for the plaintiffs, alleges: “The flood in Fernley on Jan. 5, 2008, was due to, among other reasons, the inadequate maintenance and operation of the Canal by the Truckee Carson Irrigation District (TCID), in conjunction with the United States, Bureau of Reclamation (BOR), which is an executive agency of the United States and owns the Truckee Canal for the United States.”
The suit further contends that BOR and TCID had a duty to insure the canal was safe and would not endanger residents living within the reach of potential flood waters.
“Each of the Plaintiffs herein has suffered one or more of the following as a result of the actions of the Defendants alleged herein, to-wit
(1) damage to the real property they own due to inundation by flood waters, mud, mold, bacteria, and other toxins,
(2) diminution in the value of the real property they own as a result of the requirement to disclose to any prospective purchaser of their homes the fact that their real property is located in a flood risk zone below the water level of the nearby Canal,
(3) diminution of the value of the collateral which is the security for mortgages, and promissory notes secured by deeds of trust,
(4) damages to and loss of personal property and
(5) personal injury and risk to their health due to inundation by flood waters, mud, mold, bacteria and other toxins,” the plaintiffs assert in the suit that will be heard by Federal District Judge Brian Sandoval in Reno.
The Fernley residents claim that inadequate maintenance and the TCID’s desire to recharge the water level in Lahontan Reservoir during winter months were the main reasons for the Jan. 5 breach.
“Defendants BOR through its contractor TCID, knowingly and intentionally caused an amount of water greatly in excess of the safe water-carrying capacity of the Canal to flow through the Canal at the time of the breach, and Defendants further failed, for hours after the breach occurred, to direct or cause the water to be diverted away from the Canal by the mere redirection of the water flow into the Truckee River or other alternative channels, instead of into the Canal, thereby greatly increasing the quantity of water, mud, bacteria, mold, and other toxins that flowed into the affected subdivisions and caused damages to Plaintiffs and all other persons similarly situated as alleged herein,” the suit claims.
Lawyers for the residents contend that the canal, although repaired, still poses a threat to the plaintiffs because “a large portion of the Canal within the City of Fernley contains unstable soils composing the sides of the Canal where water levels will exist at the rates of flow announced by BOR and TCID.”
Furthermore, the lawsuit alleges that bacteria and mold were distributed throughout the victim’s homes and surrounding areas that were flooded. Testing has revealed the floodwaters deposited fecal coli form, e coli, enterococcus, penicillium/aspergillums, alternaria, cladosporum, acremomium and ulocladium.
“Exposure by the Plaintiffs and all other residents of the affected subdivisions to the bacteria and toxins described above can cause respiratory and gastro-intestinal illness and death, and some of the toxins produced by types of aspergillums are highly carcinogenic and cause cancer and death,” the suit claims.
There are a number of minors named as plaintiffs in the lawsuit and the attorneys claim that children are at a much greater risk of health problems due to higher levels of outdoor activities.
“Persons who inhale such toxic particles will have an increased risk of health ailments possibly including cancer and death,” lawyers for the Fernley residents claim in the lawsuit.
Robert Hager, one of four attorneys representing the plaintiffs, said that a 6-year-old boy is among the plaintiffs who is suffering from a viral infection, which is known to be caused by contaminated water. Hager said the first symptoms often mimic the flu.
“The boy is on heavy antibiotics and the prognosis is good,” Hager told the LVN. “Left untreated, the infection can cause lung cancer.”
Hager said it’s difficult to peg a dollar figure that might result from any finding or settlement for the plaintiffs.
“Any settlement would vary from person to person and home to home based on actual damages and the likelihood of developing health problems in the future,” Hager said. “Some of my clients already suffer from Post Traumatic Stress Disorder because they feared for their lives and the lives of their children during the flood.”
Katrina – GAO Report – EPA’s Insufficient Disclosure Limited Residents’ Understanding of Potential Health Risks
This is important information especially after Gustav.
Report to Congressional Committees
EPA’s Current and Future Environmental Protection Efforts Could Be Enhanced by Addressing Issues and Challenges Faced on the Gulf Coast – PDF
This document shows where the EPA along with the state of Louisiana failed to accurately warn people of potential and certain health hazards including mold after Katrina and Rita.
I was a resident of Louisiana until recently and a victim along with my daughter and her baby of mold toxins thanks to the owners of Jefferson Lakes Apartments managed by Riverstone Residential (a few months before Katrina). After that, in pursuing litigation, we have become victims of the corrupt and unethical Louisiana court system and of the “mishandling” of our case by our attorney.
The following excerpt from this report shows how the state and the EPA did not sample indoor contamination as they did outside “because state and local governments did not request this assistance and because EPA determined that indoor testing was not necessary to characterize the environmental contamination resulting from the storm”.
Of course they would rather not have those test results because the government and state government are influenced by big money from the insurance industry and others.
Excerpts from the report –
Insufficient Disclosure about Its Decisions Regarding Sampling of Contaminants Limited Residents’ Understanding of the Potential Health Risks of Returning Home
Following disasters such as Hurricane Katrina, an immediate and primary concern of evacuees is whether and when it is safe to return to their homes. Accurate and timely information on many factors is important for residents to make this assessment–and to determine what they should bring with them when they do return, including items to mitigate potential health risks. One important factor residents need information on is the environmental contamination to which they may be exposed when they return home. Such contamination was a particular concern in New Orleans, a densely populated, older urban area in proximity to petroleum and chemical industry sites, as well as a number of Superfund sites, from which contaminants may have migrated into residential areas.
EPA worked with other federal and state agencies to support local
officials evaluating home and neighborhood safety. In addition, as
discussed earlier, EPA provided a substantial amount of information to
the public on environmental health risks using reports (environmental
assessment summaries), flyers, public service announcements made
available to the media, and EPA’s Web page. However, EPA’s
communications about the potential health risks from environmental
contamination in New Orleans–three environmental assessment summaries
prepared with, among others, the Louisiana Department of Environmental
Quality[Footnote 47]–were released about 3, 6, and 11 months after
Hurricane Katrina, limiting their usefulness to residents who would
have benefited from more timely information about the environmental
health risks they could face when returning home. These environmental
assessment summaries convey some helpful information about the
floodwaters, sediments, and air quality in the New Orleans area after
the hurricanes–that is, about the potential health risks of being
outdoors in the New Orleans area.
However, because some sampling decisions that EPA made were not
sufficiently disclosed, residents could have been given the wrong
impression about the potential health risks they could face in
returning to their homes. For example, the first environmental
assessment summary, released in December 2005, states that “the great
majority of the data available show that adverse health effects would
not be expected from exposure to the sediments from previously flooded
areas provided people used common sense and good personal hygiene and
safety practices.” However, 8 months later in its third and final
assessment summary, released in August 2006, EPA said that the December
2005 summary indicated no immediate health risk to residents returning
for a quick assessment of damage to their homes. The August 2006
summary said that the focus of the analyses of sediments reported on in
December 2005 was to assess “(1) whether hazardous substances were
present in the sediment in residential areas and (2) the potential
health effects to emergency workers and residents from short-term
exposure to any hazardous substances found in the sediment.” Because
the December 2005 summary did not include this qualification, residents
could have misinterpreted it and assumed it was generally safe to
return to their homes.
EPA also insufficiently disclosed an important decision it had made
about sampling in New Orleans. That is, all sediment samples analyzed
were taken outdoors, from streets and other areas of public access in
previously flooded residential areas, and samples were not collected
from private property, such as residents’ yards or inside residences.
Regarding disclosure of this sampling decision, EPA states in its first
assessment summary that all of its sampling was conducted “outdoors.”
While the subsequent assessment summaries issued in March 2006 and
August 2006 provide overviews of the previous assessment summaries,
they do not disclose that the assessments did not include sediment
samples taken inside buildings or on private property. For example, the
March 2006 summary states only that the December 2005 assessment
summary was based on the results of “samples from floodwaters and
sediments analyzed throughout the flood-impacted areas.”
However, according to EPA officials, in its assessments, the agency
assumes that results from sediment samples collected from streets or
other public access areas in residential neighborhoods can be used to
characterize the degree and nature of contamination in New Orleans,
including inside homes and in yards. We believe this assumption is
important and warrants highlighting in the EPA environmental assessment
summaries for two main reasons. First, environmental contamination
levels inside buildings can potentially be significantly higher than
and different from the contamination levels outside for a variety of
reasons, potentially causing more adverse health effects. For example,
contaminants that could have been washed into a building during the
flooding–such as petroleum-based products and arsenic–are not
dispersed into the atmosphere over time if confined indoors. Moreover,
any toxic chemicals or other contaminants already in a building at the
time of the flooding–such as pesticides, asbestos, and lead-based
paint–may be released inside the building. Finally, after flooding,
mold frequently forms and spreads. For example, in the case of the Gulf
Coast 2005 hurricanes, the Centers for Disease Control and Prevention
(CDC) concluded that the duration and extent of the flooding and the
number of structures flooded made massive mold contamination a
certainty.[Footnote 48] Along these lines, the Natural Resources
Defense Council conducted tests in several mold-contaminated homes in
New Orleans and found that mold in one home was at concentrations that
would render the building “dangerously uninhabitable”; in three other
homes, mold spore concentrations were “dangerously high.” In addition
to causing respiratory discomfort, mold also can cause major allergic
reactions, asthma attacks, and a pneumonia-like illness (pneumonitis)
that causes breathing difficulty and fever. Second, to understand the
level of assurance that EPA can provide about the extent to which
localized areas of contamination may exist throughout the city, it is
important to understand that limiting sediment and soil sampling to
outdoor, public access areas can be problematic in that, for example,
sediments in streets may be subject to more dispersion than those that
settled in more protected areas, such as close to residences.
Further, regarding indoor sampling, in September 2005, EPA’s Science
Advisory Board had suggested that EPA consider some indoor sampling in
New Orleans, including sampling of surface films on walls and
structures, because material deposited outdoors may have been different
from material indoors, where the potential for human exposure is likely
to be greater. At that time, EPA said that indoor testing of private
homes could not be conducted in the initial sampling effort because of
worker safety issues and difficult logistical issues–such as obtaining
owners’ consent–that could not be quickly resolved. EPA stated the
agency would revisit this recommendation as these issues were
addressed. To date, while CDC has tested some New Orleans homes for
mold contamination, EPA has not tested for contamination inside homes
that were flooded as a result of the hurricanes. EPA officials told us
the agency has not tested indoors because state and local governments
did not request this assistance and because EPA determined that indoor
testing was not necessary to characterize the environmental
contamination resulting from the storm.
During the time EPA was conducting the sediment sampling program, the
agency posted test results on its Web page as the results became
available, identifying the general area of the sampling sites on a map
of the New Orleans area. Thus, any residents with access to the
Internet and with experience in searching and reviewing government Web
sites could obtain some information about the environmental
contamination in New Orleans prior to the release of the assessment
summaries. However, the information about the individual samples on
EPA’s Web page is highly technical and would be of limited value to
individuals who are not experts in health risk assessment. For example,
the Web page provides information on the micrograms per kilogram (µg/
kg) of arsenic and benzo(a)pyrene in the sediment at one sampling site.
Accompanying text indicates whether the detected levels were above or
below the “LDEQ RECAP value” and states that in cases where they
exceeded the RECAP value, “the levels fall within EPA’s risk range of 1
in 1,000,000 to 1 in 10,000 risk of an individual developing cancer
over a lifetime from exposure to those concentrations in residential
soils.” Although we believe that posting data on the individual samples
on EPA’s Web site was not a particularly effective tool for
communicating information to residents about potential health risks and
mitigation strategies, we agree with EPA’s Inspector General that EPA’s
posting of information on sediment contamination on its Web page
provided timely information to the states and other federal decision
makers for use in determining associated risk and impact
Some Information EPA Provided to Residents in Its Public Service
Communications Was Unclear and Inconsistent
Although EPA did not perform environmental assessments of any flooded
homes in New Orleans, it did provide information to residents based on
general knowledge and assumptions about potential environmental health
risks inside buildings following disasters. Specifically, EPA relied on
flyers, public service announcements, and EPA’s Web site to provide
information on the potential health risks in buildings stemming from
exposure to, for example, asbestos, lead, and mold–three contaminants
that were of concern to EPA and other officials immediately after the
hurricanes. While the flyers, public service announcements, and
documents on EPA’s hurricane Web page provide information on mitigating
exposure to these contaminants, some information lacks clarity and
consistency on certain key points.[Footnote 50] For example, EPA’s most
widely distributed flyer on environmental health risks–EPA and
Louisiana Department of Environmental Quality Warn of Potential
Environmental Health Hazards When Returning to Homes and
Businesses[Footnote 51]–states that buildings constructed before 1970
are likely to contain asbestos, including pipe and other insulation,
ceiling tiles, exterior siding, and roof shingles. In contrast, another
document available on EPA’s hurricane Web page, Dealing with Debris and
Damaged Buildings, states that all structures built before 1975 may
contain significant amounts of asbestos, and structures built after
1975 may also contain asbestos. Further, in developing estimates of the
number of homes that may contain asbestos, the Louisiana Department of
Environmental Quality included homes built before 1980 as those likely
to contain asbestos.[Footnote 52] Accurate and consistent information
about the age of buildings that are most likely to contain asbestos is
important in helping residents understand what protections they may
need when entering and working in their homes.
In addition, EPA’s flyer on potential environmental health hazards
recommends seeking assistance from public health authorities and
specially trained contractors, if possible, when a resident knows or
suspects that asbestos or lead-based paint may be in the home and these
materials have been damaged or will be disturbed during cleanup.
However, the flyer does not contain the following more strongly worded
guidance from the Frequent Questions document on EPA’s hurricane Web
page: “Before you begin your cleanup, seek help from public health
authorities and specially trained contractors. Although conditions
following a hurricane may make it difficult to obtain such assistance,
EPA strongly advises against individuals attempting to handle such
Both the flyer and the Frequent Questions document then list a number
of steps individuals should take when handling this debris. However,
the information provided on the hurricane Web page regarding
respiratory protection that individuals should wear is more clear and
useful than the information in the widely distributed flyer on
potential environmental health hazards and in the relevant EPA public
service announcement. Specifically, the flyer states, “In handling
materials that are believed to be contaminated with asbestos or lead,
EPA recommends that, at a minimum, you wear gloves, goggles, and most
importantly, OSHA-approved respiratory protection, if available.” The
public service announcement recommends wearing “gloves, goggles, and a
face mask.” The information on EPA’s hurricane Web page, however, is
more specific about what respiratory protection is required, where it
can be purchased, and the importance of wearing it: “Wear gloves,
goggles, pants, shirts, socks, and most importantly, a tightly-fitted N-
95 OSHA-approved respiratory mask. A regular ‘dust mask’ is not enough
to protect against lead or asbestos. N-95 masks are available at
minimal cost at the hardware store. Carefully follow instructions when
using a respiratory mask to make sure it fits correctly. A tight fit is
important, and despite the heat, it is the best way to protect
However, a safety step EPA recommended on its hurricane Web page that
many individuals were not likely to have been able to perform was to
determine if asbestos-containing products–specifically, asbestos-
cement corrugated sheet, asbestos-cement flat sheet, asbestos pipeline
wrap, roofing felt, vinyl-asbestos floor tile, asbestos-cement shingle,
millboard, asbestos-cement pipe, and vermiculate-attic insulation–
were present in their damaged homes. How individuals would determine if
these asbestos-containing products were present is not clear, as
another EPA document (available on the general EPA Web site but not
cited in either the flyer for residents or the Frequent Questions
document) states that unless they are labeled, materials containing
asbestos cannot be identified by visual inspection. This document
further cautions readers to treat the material as if it contained
asbestos when in doubt or have it sampled and analyzed by a qualified
Some communications about exposures to mold also were not sufficiently
clear or consistent to be helpful to residents whose homes had been
flooded. For example, a flyer distributed to many residents
specifically addressing mold is more focused on urging people to clean
up than on providing information on how to protect themselves while
doing so. The flyer, Cleaning Up After a Flood: Addressing Mold
Problems, gives this general safety advice: “Take precautions to limit
your exposure to mold and mold spores when attempting to clean up mold.
If you have health concerns, you may want to have someone else clean up
the mold.” Yet this flyer does not explain what precautions to take.
Moreover, the flyer urges residents to act quickly to remove materials
contaminated with mold and bacteria, explaining that these contaminants
can trigger allergic reactions and induce respiratory infections. For
“more specific information on mold,” the flyer refers readers to EPA’s
Indoor Air Quality Hotline, EPA and CDC Web sites, and two documents
available on EPA’s Web page (one addressing mold in schools and
commercial buildings and the other addressing mold in homes). The
document that addresses mold in homes includes the following somewhat
tentative guidance: “In order to limit your exposure to airborne mold,
you may want to wear an N-95 respirator, available at many hardware
stores and from companies that advertise on the Internet….” However,
other information on EPA’s general Web site that is not specifically
cited in the flyer less ambiguously recommends wearing an N-95
respirator. Specifically, Flood Cleanup and the Air in Your Home says
to wear an “N-95 respirator” over the mouth and nose to avoid breathing
in mold. This publication further explains that a dust mask or
handkerchief does not provide protection from mold because it can pass
through them. In contrast, EPA’s flyer on potential environmental
health hazards advises readers to wear “an N-95 respirator, if
available, or a dust mask” when, for example, cleaning significant
areas of mold contamination.
Importantly, as of March 2007, none of EPA’s communications, including
its hurricane Web page, were updated to highlight comprehensive
information on mold exposure released by CDC on June 9, 2006.
Specifically, CDC’s report Mold Prevention Strategies and Possible
Health Effects in the Aftermath of Hurricanes and Major Floods includes
population-specific recommendations for protection from exposure to
mold in buildings after hurricanes and major floods.[Footnote 53] For
example, CDC states that healthy individuals do not need to take
special precautions for exposure to mold in buildings after hurricanes
when they are observing from outside or simply inspecting or assessing
damage. However, if healthy individuals are recovering moldy personal
belongings (thereby disturbing some dust or mold), CDC recommends that
they wear respiratory protection (N-95 filtering face pieces), gloves,
and dermal protection. This report also identifies individuals who
should avoid specific activities (inspecting, recovering belongings,
sweeping, etc.) and specifies the protection they should have to
conduct the activities. For example, pregnant women and those over the
age of 65 may recover personal belongings wearing respiratory
protection, dermal protection, and eye protection but are to avoid any
sweeping or cleaning activities. Individuals with “profound
immunosuppression”– such as those with HIV infection–are to avoid all
exposures, while those with “immunosuppression”–such as those in
cancer treatment–or those with lung disease can conduct some specified
activities with recommended protective gear.
In addition, some information in EPA’s December 2005 environmental
assessment summary was inconsistent. For example, according to the
summary, it does not address indoor environmental issues associated
with re-entry into flooded homes and structures. However, the following
excerpt from the conclusions section of the summary appears to
contradict this statement –
Good personal hygiene should be practiced with frequent hand washing,
laundering of clothing, and cleaning of the homes (i.e. vacuuming,
dusting, etc.) Efforts should be made to avoid tracking sediments into
homes from un-vegetated or uncovered areas as well as stirring up dust
from those same areas. Obvious signs of hazardous material or oil
spillage should be avoided and reported, as well.
This guidance does not acknowledge that sediments and contaminants may
have been washed into or spilled inside structures as a result of
flooding. Thus, the detailed guidance the summary provides for working
outdoors, which may also be applicable for working inside homes, is not
recommended for working indoors. Specifically, the December assessment
summary provides the following “good personal hygiene” guidance for
those working with or near exposed sediments outdoors:
* “Wear gloves, boots, and safety glasses.
* Wear a dust mask (an N-95 dust mask is recommended and can be
purchased at your local pharmacy or building supply stores).
* Keep arms and legs covered. Wear long sleeves and long pants.
* Wash hands frequently with soap and water.
* Wash work clothes separate from other laundry.”
In general, EPA’s communications recommend wearing some sort of
respiratory protection as a key step in mitigating potential health
effects of exposure to sediments and three contaminants–asbestos,
lead, and mold–likely to be present in many homes damaged by the 2005
Gulf Coast hurricanes. However, EPA refers to this protection
inconsistently and with varying levels of specificity –
* “a face mask”
* “N-95 masks”
* “OSHA-approved respiratory protection”
* “a dust mask (an N-95 dust mask is recommended…)”
* “an N-95 respirator, if available, or a dust mask”; and
* “a tightly fitted N-95 OSHA-approved respiratory mask–a regular
‘dust mask’ is not enough to protect against lead or asbestos.”
These varying terms are confusing and could result in an insufficiently
protective choice. For example, “OHSA-approved respiratory protection”
is not a common term or household item, and people might not understand
what to look for and where to find it. Moreover, the federal agency
that approves respirators to protect against a variety of hazards is
the National Institute for Occupational Safety and Health (NIOSH).
Thus, respirators approved by NIOSH that are available for purchase
will be labeled as in compliance with specified NIOSH
requirements.[Footnote 54] Further, it is not clear what a “face mask”
is, and “dust masks” and “dust respirators” vary widely in terms of the
respiratory protection they provide. That is, dust masks can provide
some protection to the lungs from the irritating effects of nontoxic
dust and airborne particles such as pollen, common household dust, and
cut grass, but they are not protective against mold spores or toxic
dusts. Given the number and variety of dust masks and respirators that
are available and that provide varying levels of protection, EPA’s
communications would be more useful if they clearly and consistently
named and described the type of respiratory protection the agency is
recommending for the specific exposures being addressed.
Working under extraordinary conditions, EPA undertook a broad range of
activities to support state and local entities in Louisiana and
Mississippi in assessing and minimizing the environmental risks
resulting from Hurricane Katrina, including search and rescue efforts
that brought 800 New Orleans residents to safety. Because of the
breadth and scope of this disaster, cleanup and recovery efforts are
still under way in the New Orleans area. For example, many homes have
yet to be demolished or substantially renovated. A significant number
of them will be demolished or renovated during the next year, and
likely these activities will continue for a longer period of time.
Given the age of many New Orleans residences, environmental hazards
such as asbestos are likely to be present. For the demolitions covered
by the no action assurances, in lieu of the requirement for prior
identification and removal of regulated asbestos-containing materials,
homes that are not inspected before demolition are required to be
wetted during the demolition and disposition processes to reduce
potential asbestos emissions. However, much of the demolition and
renovation activities, including house gutting, will be undertaken by
individual homeowners; these activities are not regulated and therefore
none of the asbestos control requirements apply. While EPA has taken
steps to monitor asbestos concentrations in the air in New Orleans, it
is not clear how its approach can accomplish the agency’s stated goal
of measuring the effects from both the regulated asbestos-containing
material, to which the no action assurances might apply, and the
unregulated activities, which would include demolitions and renovations
by individual homeowners. To date, according to EPA, the asbestos air
data it has collected have not identified potential problems regarding
public exposure to asbestos fibers. However, these results may not be
representative of asbestos releases to which residents, workers, and
volunteers may be exposed in some neighborhoods because of monitoring
gaps stemming from monitor locations and the scaling back of monitoring
sites a few months after demolitions began. Specifically, without
sufficient and targeted asbestos air monitoring data from neighborhoods
where demolitions and renovations are concentrated, EPA has limited
assurance that the public health is protected from risks associated
with inhalation of asbestos fibers potentially stemming from the
substantial levels of both regulated and unregulated demolition and
renovation activities occurring in concentrated geographic areas.
In addition, EPA could improve the effectiveness of its communications
about the potential health risks from exposure to environmental
contamination when responding to future disasters. Following a disaster
that has involved evacuation, residents are typically anxious to return
to their homes, and public leaders are eager to take steps to return to
normalcy, including having residents return as soon as it is safe for
them to do so. Among the important information residents need in order
to minimize their environmental health risks when they do return is
timely, complete, clear, and consistent guidance about the
environmental contamination they may be exposed to, both indoors and
outdoors, and how to best protect themselves from it. Without such
information, people may return too soon or without the proper
protective gear and supplies, which might expose them to both short-
term and long-term negative health effects. This could well have been
the case in New Orleans since, for example, EPA did not state until
August 2006 that its December 2005 assessment summary applied to short-
term visits, such as to view the external damage to their homes. This
situation was exacerbated by some confusing information EPA provided in
public service communications–for example, about the respiratory
protection residents should use to mitigate potential exposure to
asbestos, lead, and mold in their homes.
Policyholders of America
We are a nonprofit association serving policyholders victimized by insurance companies or just plain sick and tired of an industry that has spun out-of-control and know that change can only happen if we, the consumer of a mandated product, ban together.
POA takes an active role in helping policyholders receive full payment for claims made and we do so at no charge.
We are not advocates of litigation and are not associated with trial lawyers, public adjusters or any other group that feeds off of the misfortunes of policyholders. Our only loyalty is to the policyholder.
POA is nonpartisan however we do take a stand on political issues, candidates and policies relating to insurance for one simple reason: You cannot separate insurance from politics.
For far too long, the insurance industry has stacked the deck against consumers by fueling political campaign coffers with contributions that come from insurance executives and their PACs. In return, legislators, elected and appointed judges have bent over backwards for the insurance industry by stripping away punitive damages for bad faith and insurance company-committed fraud. This has done nothing but make bad faith in the claims handling process a profit center.
President – Melinda Ballard
This site also has great information on toxic mold issues including legal, medical, politcal, etc.