Blog roundup

A round-up of my favorite blog posts of the week:

1.  Mold case in Eastern District of Virginia survives a motion to dismiss, from the Va. Lawyers Weekly blog.  The plaintiff is proceeding on a negligence per se theory based on violations of the state building code.

2.  A judge in the Eastern District of Virginia rejected a Twombly challenge directed at a defendant's affirmative defenses.  Motions to strike affirmative defenses have long been a practice in Virginia.  In D.C. and Maryland, plaintiffs' counsel don't waste their time with it.  Sounds like the Judge here doesn't like his time wasted with it either.  After all, it is the "rocket docket." 

3.  Comparison of file sharing services, YouSendIt vs SendNow, courtesy of the Oregon Law Practice Management Blog

4.  List of most popular malpractice prevention downloads of the year, courtesy of PracticePro.


National Academy of Sciences report on mold

The papers today have articles about a new report published by the National Academy of Sciences on the health problems caused by mold. The 380 page report costs about $50 and can be purchased here.

The synopsis of this publication, from the National Acadmey of Sciences site, is as follows:

Almost all homes, apartments, and commercial buildings will experience leaks, flooding or other forms of excessive indoor dampness at some point. Excessive dampness is not only a health problem by itself, it is also contributor to several other potentially problematic types of challenging situations. Molds and other microbial agents favor damp indoor environments, and excess moisture may initiate chemical emissions from damaged building materials and furnishings. This new book from the Institute of Medicine examines the health impact of exposures resulting from damp indoor environments and offers recommendations for public health interventions.

Damp Indoor Spaces and Health covers a broad range of topics. The book not only examines the relationship between damp or moldy indoor environments and adverse health outcomes, but discusses how and where buildings get wet, how dampness influences microbial growth and chemical emissions, the ways to prevent and remediate dampness, and the elements of a public health response to the issues. A comprehensive literature review finds sufficient evidence of an association between damp indoor environments and some upper respiratory tract symptoms, coughing, wheezing, and asthma symptoms in sensitized persons. This important book will be of interest to a wide-ranging audience of science, health, engineering and building professionals, government officials, and members of the public.

Later: Thanks to Blog 702 for pointing to where you can get the full text of this report on the NAS site.

Suit for Negligent Remediation of Toxic Mold in DC -- Ritz Carlton Residences

In Anderson v. USAA, the Court required the plaintiff to filed an amended complaint to state her claims of negligent misrepresentations against an environmental remediation company with more specificity. The factual background of this suit is as follows:

In May 1999, the plaintiff entered into purchase agreements with the Millennium defendants for two newly-constructed units in the Ritz-Carlton Residences, which later were combined into one unit (“the unit”). . . . The plaintiff began to occupy the unit in January 2001, after which time she began experiencing “a variety of flu-related symptoms, such as nasal congestion, burning eyes and fatigue.” . . . The plaintiff maintains that she had no known history of such health problems before she resided in the unit, and that her symptoms would subside whenever she left the premises. Id. . . . In February 2002, black-colored mold became visible along the walls of the unit. . . . From February through May 2002, defendant NuChemCo, Inc. (“NuChemCo”) performed air-quality tests that revealed additional mold throughout the unit. . . . The Millennium defendants contracted defendant TEG, a purveyor of environmental investigation and remediation services, to perform the remediation of mold-contaminated areas throughout the building. . . .

The remediation was completed, however, plaintiff's health allegedly further deteriorated as she experienced “severe headaches, blurred vision, difficulty breathing, coughing, congestion, nausea, vomiting, diarrhea, swelling and cognitive deficiencies.” The plaintiff attributes her maladies to various toxic molds growing within the walls of the building as a result of “serious and reoccurring leaks and flooding” that took place during construction. The plaintiff’s doctor ordered her to move out of the unit, and she has not returned since her departure.

Diagnosis of mold problem

The Aerias website has a summary of a study that discusses what is normal in terms of household mold exposure. The idea is that abnormal levels of mold exposure cannot be interpreted without a baseline of what is normal in buildings without a perceived mold problem.

The lack of sufficient proof of a mold problem can lead to the grant of summary judgment, as illustrated by a recent case from the Eastern District of Virginia.

Speaking of mold, there is an upcoming seminar in Virginia entitled Emerging Issues in Virginia Indoor Air Quality and Toxic Mold Litigation, on April 8, 2004. One of my partners, Michael E. Reheuser, is a speaker.

First Source website

First Source is an interesting resource. It provides A/E/C professionals free access to the industry's most comprehensive, up-to-date library of formatted commercial building product information, including manufacturers' addresses, telephone numbers, trade names, and regional distributors.

This might be useful to attorneys involved in disputes concerning construction defects, products liability or mold litigation.

ABA TIPS Magazine, The Brief, Devotes Fall 2003 Issue to Toxic Mold

The ABA's Tort Trial and Insurance Practice Section publishes a magazine called "The Brief", which has devoted the Fall, 2003 issue (Vol. 33, No. 1) to Toxic Mold. The articles include the following:

Tools and Strategies for Mold Bad Faith Cases

Microbial Contamination Issues: A Primer for Mold Claims

Assessing Mold Claims and Preparing for Trial, by Raymund C. King, MD, JD

Mold Cases in the United States: A Survey of Recent Reported and Unreported Decisions

Mold: Investigation and Remediation Process

TIPS also has a book out, Toxic Mold Litigation: Myth or Mayhem, by Raymund C. King, MD, JD

The Brief isn't available in full text in the Web, as far as I know, but if your firm does not subscribe, you can get it here.

Mold Detection Canines

I first heard about this today at my dentist's office, as my dentist and his assistant were joking about mold sniffing dogs and how mold is going to be the next asbestos. So I googled mold sniffing dogs and got this and this. Also this profile of mold dog. There is even a website called, which can help you find a mold dog and which has a streaming video available showing a mold dog in action.