Guest Commentary by Shiela Powell
The development of IgG (antibodies) to the toxigenic molds such as Stachybotrys is actually to the toxins or chemicals that the body is reacting to, these chemicals commonly contained on the surface of indoor growing mold spores. The production of IgG to the Stachybotrys correlated with toxin exposure, and not to any outside source of spores. This is how exposure has been proven in court, but there are many other diagnostic methods that are more thorough, definitive, and proven. Technology has come a long way during the past, few years; even months. Dr. Gary Ordog
Because Americans spend between 75% to 90% of their time indoors, they are exposed to a variety of indoor air pollutants, which the Environmental Protection Agency (“EPA”) claims may have between 100 and 200 times the actual amount of pollutants found in outdoor air. [EPA’s Indoor Air Quality Home Page] Lawsuits arising from indoor air pollution typically involve both personal injury and property damage components. Personal injuries caused by indoor air pollution fall into three categories: sick building syndrome (“SBS”), building related illness (“BRI”) and multiple chemical sensitivity (“MCS”).
Personal injuries caused by exposure to a microbiological agent created from chronic water intrusion into the building envelope fall into the category of sick building syndrome. At least one commentator has suggested that SBS occurs when at least twenty percent (20%) of a building occupant’s complain of particular discomforts while inside the building, and the discomforts are alleviated upon leaving the building, but where there is no discoverable link between the building source and the problems encountered. Pyle, Environmental Law in an Office Building: The Sick Building Syndrome, 9 J. Envtl. L. & Litig. 173 (1994).
However, in the case of microbiological contamination, a very distinct link can be found between toxic mold and bacteria and the occupant’s illnesses. Both property damage and personal injury claims arising from microbiological agents found in structures, which are the result of chronic water intrusion into the building envelope caused by construction defects.
Causes of Action
There are a litany of potential causes of action available to the Plaintiff, including but not limited to, negligence, professional malpractice, strict liability, breach of implied and express warranties, constructive eviction, Worker’s Compensation, violations of the American’s with Disabilities Act, breach of contract, fraud, failure to disclose in the sale of property, and violations of the Unfair Competition Act pursuant to Business & Professions Code section 17200 et. seq.
The most common cause of action asserted for mold contamination is negligence. The Elements of this tort are:
- the defendant owed a duty of care to the plaintiff
- the defendant breached that duty by a failure to exercise ordinary or reasonable care that a person of ordinary prudence would use under similar circumstances
- the plaintiff was injured
- the breach was the proximate cause of the injury, damage or loss to plaintiff.
This cause of action is commonly used in actions against builders, general contractors, design professionals and subcontractors for alleged negligence in the performance of their duties. In addition to any obligation contained in the lease, landlords have a both a common law and statutory duty to make repairs and take steps to ensure that the property is fit for human habitation.
Homeowners Associations have the duty to maintain, repair and replace the “common areas” of a common interest development pursuant to the Conditions, Covenants & Restrictions. The Board of Directors owe a fiduciary duty to the homeowner/members to discharge their duties as well.
For more than three centuries, the general rule governing the purchase of real estate was caveat emptor, or let the buyer beware. However, beginning in 1969, courts in California began recognizing a homeowner’s right to sue a builder of mass produced housing under a strict liability theory.
This theory of liability evolved from products liability law. In order to prove this cause of action, the plaintiff must show that the defendant was involved in the mass production of housing, that a defect in the house exists, damages were proximately caused by the defect and that the defendant caused or created the defect. The plaintiff is not required to prove that the defendant failed to follow the standard of care of similar builders in the community, an essential element of the negligence cause of action. It is important to note that this theory does not apply to subcontractors, design professionals or to commercial property.
Breach of Warranties
For new construction of both residential and commercial properties, the courts have created an implied warranty that the structure was designed and constructed in a reasonably workmanlike manner. Similarly, a builder or seller of real property may expressly warrant the condition of the construction and improvements, which is a contractual cause of action. For the tenant, the courts have modified the common law duty of the landlord to maintain and repair residential premises by creating an implied warranty of habitability.
When a landlord breaches an implied covenant of habitability, or covenant of quiet use and enjoyment, a constructive eviction may occur. The landlord’s breach of the covenant may entitle the tenant to recover monetary damages from the landlord for a constructive eviction.
The legislature has enacted a broad statutory scheme to compensate workers who are injured on the job. However, an injured worker is barred from suing his employer for an injury if worker?s compensation insurance is maintained by the employer.
Failure to Disclose
Every person who sells or transfers title to residential real estate must disclose all facts that materially affect the value or desirability of the property. Individual sellers must comply with Civil Code section 1102, which requires the seller, the listing (seller’s) agent and the buyer’s agent to complete and deliver to all prospective buyers a standardized form containing information about the property, commonly referred to as a Transfer Disclosure Statement (“TDS”). Real estate agents are also required to conduct a reasonably competent and diligent visual inspection of the property offered for sale and to disclose to a prospective buyer all facts materially affecting the value or desirability of the property that an investigation would reveal. Several cases have further defined these duties. In one case, a seller of a condo in an HOA delivered a TDS to the buyer before escrow closed, stating that she was unaware of any flooding, drainage or grading problems.
However, prior to this, seller had completed a homeowner’s questionnaire sent to her by her HOA, wherein she reported a white residue on the interior concrete wall of her garage and algae or fungus on the exterior of the wall. Seller’s real estate agent noted on her portion of the TDS that she knew nothing to contradict Seller’s representations, but that she knew that some other units in the HOA had experienced water intrusion. Prior to the close of escrow, the HOA sent a letter to all homeowners, including Seller, that the HOA had recently filed a construction defect lawsuit against the builder. Seller forwarded a copy of the announcement to the buyer. One month after escrow closed, buyer discovered water intrusion damage when she removed a portion of the carpet in her unit.
Buyer sued the Seller and seller’s brokers for failure to disclose. The court of appeal finally ruled that the seller was not required to disclose past occurrences of algae or white residue in seller’s unit, because she believed the unit had been repaired and she saw no signs of the problem reoccurring prior to sale. As to Seller’s broker, the court held it was sufficient disclosure to state that some of the units, but not the subject unit, had experienced leaks and that the litigation by the HOA had been filed against the builder.
Likewise, there is no duty for a real estate agent to make inquiry to the HOA whether there exists any construction defects or if the HOA is currently involved in a construction defect lawsuit. Additionally, the HOA has no duty to tell a prospective purchaser about construction defects or the existence of a lawsuit against the builder to repair the defects. The HOA is not acting as a seller, is not a party to the sale contract, and doesn’t assume any special relationship with the buyer.
Common Fungi Found In Water Damaged Buildings
Fungi commonly found in buildings with chronic water intrusion problems include Stachybotrys, Aspergillus, Penicillium and Trichoderma, among others.
Fungi and Mycotoxins
Several mold species, including Aspergillus, Fusarium, Penicillium and Stachybotrys can produce a wide variety of nonvolatile chemicals, commonly referred to as mycotoxins. Stachybotrys alone produces over 163 different mycotoxins. The Soviets are believed to have used neurotoxins from Stachybotrys as a biological weapon against Afghanistan. Even in low concentrations, these chemicals can cause adverse health effects, including skin irritation, pathogenic disease, cancer and immune disorders. Unlike allergens, mycotoxins elicit a toxic response in virtually all individuals who come in contact with them. Aspergillus Flavus, a common indoor fungus, produces aflatoxins, notoriously potent animal carcinogens. Penicillium, while unable to produce aflatoxin, may produce more than 100 different classes of mycotoxins.
Stachybotrys, one of the most notorious mycotoxin-producing molds, has received much publicity in both the media and in high profile closings of public and private buildings, schools, courthouses and hospitals. Various species of “Stachy,” as well as Fusarium, can produce macrocyclic trichothecenes, which have potent adverse health affects on the immune system, as well as protein synthesis. Stachybotrys chartarum produces five different trichothecenes, which are both dermotoxic and cytotoxic. In one study, an extract of various Stachy-produced trichothecenes was given to rats. It resulted in their deaths within 24 hours. Mycotoxins can enter the body via inhalation or contact with the skin. Inhalation of mycotoxins in a much more potent route of exposure, compared with ingestion. Adverse health affects have been noted in individuals who came in contact with Stachybotrys, suggesting that the toxins were absorbed through the skin.
Fungi also produce a wide range of volatile organic compounds (“VOC’s”), consisting mainly of alcohols, ketones, hydrocarbons and aromatics, many of which have distinct odors. These VOC’s, which are sometimes referred to as microbial VOC’s or MVOC’s, are typically what cause the characteristic musty or dank smell which people associate with mold growth. Odor thresholds for some MVOC’s are very low, as low as 1 part per trillion.
Allergic Reactions to Fungi
The health affects documented from exposure to fungi are typically a result of their spores. Repeated heavy exposures to fungal spores may result in two different types of allergic reactions. Type I, also known as an “immediate” reaction, involves chronic exposures to a microbiological agent over months or even years and may result in an overreaction of the immune system. Once the immune system has been triggered, even the slightest future exposure can trigger an allergic reaction. An estimated 8% of the adult allergic patients and 20%-25% of children reportedly suffer from Type I allergic reactions to fungi, which may imply some genetic predisposition. Patients with this predisposition produce immunoglobulin E (IgE) anitbodies in larger amounts than “normal” people. The overstimulated production of these antibodies creates a hyperreaction which induces allergic reactions, such as rhinitis, hay fever or asthma within minutes after exposure. Type III, also known as “Arhus” reactions, are mediated by IgG and IgM antibodies. The resultant immune complexes initiate different inflammatory responses, which may result in asthma. This condition is frequently referred to as “hypersensitivity pneumonitis” or “extrinsic allergic alveolitis.” In this type of reaction, the symptoms may appear approximately 4-8 hours after exposure, and include a general malaise, flu-like symptoms, fever and muscle and joint pains. Physical findings can also include signs of severe oxygen deficit and abnormal crackling sounds in the lungs, called “rales.” Long-term exposure can lead to fibrosis of the lung tissue.
Destructive and Non-Destructive Testing For Mold
No matter what legal theory is being relied upon, frequently the most difficult element will be causation. Thus, it is essential to conduct thorough and competent testing of both the patient and the patient?s environmental surroundings. When performing a site investigation, the inspector should be a properly trained industrial hygienist, and should not arbitrarily rely upon air samples to determine the existence of fungi. Results from air testing alone can be confounding and may inaccurately represent the true conditions of the indoor air environment. Fungal spores often fluctuate widely over the course of a day, and a single air sample reflects only a momentary “snapshot” condition. Certain fungi, such as Stachybotrys, have sticky spores and are rarely airborne absent some type of physical disturbance. In these cases, air sampling will be prone to false negative results, and never should be relied upon to rule out contamination.
According to the California Department of Health Services, if mold growth is visible, there is frequently no need to further characterize it by determining the types of mold present. However, a program of bulk and surface sampling is still justified so that physicians can properly diagnose illnesses of the occupants through microbial etiology and the cost and method of remediation and repair of the building can be determined based upon the level of contamination.
According to the American Industrial Hygiene Association (AIHA), studies of microbial problems in buildings have shown that perhaps 50% of microbial problems are not visible. Because of the frequency of hidden mold growth in buildings with a history of chronic water intrusion, most experienced investigators use a mixture of bulk and air sampling for biologicals. Implementing both methods of testing increases the likelihood of discovering the proximity of and defining the biodiversity of biological reservoirs.
According to the Field Guide for the Determination of Biological Contamination in Environmental Samples published by the AIHA, air sampling may be quiescent (i.e., collect sample under normal operating conditions), semiaggressive (i.e., stir up dust in reservoirs to simulate normal occupant activities), or aggressive (i.e., attempt to vigorously disturb reservoirs to establish biocontaminant source).
As previously discussed, the AIHA believes that air sampling is not an infallible means of determining the existence of a fungal problem and must be coupled with a detailed inspection. This often includes performing destructive testing to remove water damaged drywall to inspect the back of gypsum wallboard, wood framing members and insulation. However, care must be taken to warn and protect both the investigators and the occupants of the building from unintentional contamination from destructive testing. Proper personal protective gear (“PPG?s”) should be worn by testing personnel, including disposable Tyvex coveralls with hoods, latex gloves under work gloves, HEPPA respirators and disposable shoe coverings.
Information on airborne fungi generated from collecting air samples with subsequent culture on agar media has several limitations. According to AIHA, air samples impacted on agar media can greatly underestimate the total propagule numbers present for three reasons:
- Decline in propagule viability with age and exposure to ambient environmental conditions
- Choice of agar medium
- Damage to propagules during sampling
Fungal spores decline in viability from the moment they are produced. Spores of Stachybotrys Chartarum (atra) decline in viability very quickly. Hence, according to the AIHA, the finding of Stachybotrys from air samples collected on culture media must be treated differently than a finding of a Penicillium species. In general, the numbers of propagules determined by culture are substantially less than those determined by direct methods. A proper investigation should include both viable (culturable) and non-viable fungal particles.
Therefore, when collecting air samples, collect both types of particles. Viable sampling is usually performed using an Anderson or similar impaction sampler which pulls air across an agar plate at a flow rate of 28.3 1/minute. Small particles are deposited upon this plate, which is subsequently incubated and the resultant colonies identified and enumerated. Counts are then converted to the number of colony-forming units (“CFU’s”) per cubic meter of air sampled. There are a variety of different types of agar which can be used, depending on the type of fungi being sampled. No one agar is ideal for all types of fungi. Malt extract agar (MEA) is a good general purpose agar for screening. When sampling specifically for Stachybotrys, cornmeal agar (CMA) or Czapek cellulose agar (CCA) are more suitable.
Non-viable particles are typically collected using a spore trap sampler, such as the Burkhard or a slit impaction device, including the AIR-O-CELL Bioaerosol Cassette. Air is pulled through the sampler and particles deposited on a grease-coated glass slide. The samples are then microscopically examined and the total number of spores per cubic meter determined. Tentative identification of many types of spores can also be made, though typically only the genus (i.e., Penicillium) can be ascertained.
When conducting any type of air sampling, samples must also be collected outside the building of the ambient air so that a comparison between the genus and CFU?s of fungi found inside can be compared to those found outside.
Interpretation of Results of Microbiological Testing
There are no “official” standards or guidelines for fungal or bacterial bioaerosols. Some researchers have expressed an opinion that 100-250 CFU’s are acceptable, provided no opportunistic fungi are present. The same range is also used by the U.S. Public Health Service, Federal Employee Occupational Service (Region III). A range of concentrations proposed by the World Health Organization and Health Canada suggests that microbial concentrations below 50 CFU for a single species (other than outdoor common fungi), 150 CFU for a mixture of species reflective of the outdoor air spores, or 500 CFU during the summer for common outdoor fungi (such as Cladosporium) are acceptable. There are other ranges (called background numbers or guidelines) used by organizations such as the American Conference of Governmental Industrial Hygienists (ACGIH) and OSHA.
Since there are no governmental established guidelines to follow regarding airborne fungi, indoor results must be interpreted with respect to the control samples. In general, mechanically ventilated buildings should have indoor fungal counts that are lower than those found outside. In addition, the species found inside should be similar to those identified outside the building. A situation should be considered unusual when the fungal levels inside are an order of magnitude or greater than those found in the outdoor control sample. Further, the presence of any slimy-spored toxigenic fungi, such as Stachybotrys chartarum and Fusarium moniliforme, should be considered unusual, and may suggest an indoor contamination source. The consistent detection of some fungi, such as Aspergillus or various species of Penicillium, could indicate water damage and subsequent fungal amplification.
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