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WOOD SMITH Mold UPDATE: Orange County Jury Delivers Defense Verdict in Mold Bodily Injury Case

Wood Smith Attorneys Win Another Mold Bodily Injury Case;
Orange County Jury Returns Defense Verdict

SANTA ANA, CA July 20, 2004 -- An Orange County jury returned a defense verdict in a closely watched case involving claims of bodily injury from exposure to mold in a townhome located in Mission Viejo, California. Jury deliberations were less than thirty minutes according to trial lawyers Kevin Smith and Sam McDermott with the law firm of Wood, Smith, Henning & Berman which represented defendant, Equity Residential Property Management Corporation.

The eight day trial of Shapiroholland v. Equity Residential Property Management (Orange County Superior Court case 03CC0376) stemmed from the rental of a townhome located in Mission Viejo, California. During the tenancy of the rental, the property management company noticed a water leak emanating from a water heater closet in an outdoor patio of the plaintiff's unit. Within two days, repairs were made including extraction of all water that had saturated parts of the carpeting in the living room of the unit. The occupants of the unit, husband/wife/seven year old minor child, all complained they suffered health effects due to exposure to mold.

The Plaintiffs were relocated from the unit while mold remediation work was performed, including air testing at the conclusion of the remediation which underscored successful abatement. All of the property in the unit was removed and/or cleaned during the remediation work. Despite the fact the unit was abated and air testing reflected there was no elevation of the indoor air quality, Plaintiffs refused to move back into the unit until January, 2003 -- more than three months after the initial water leak was repaired.

Despite the proactive approach to addressing the water intrusion and property damages, Plaintiffs Reginald and Sari Anne Shapiroholland, along with their young son Zachariah, brought suit against the property management company. The plaintiffs claimed to a host of physical ailments as a result of their exposure to mold, including asthma, allergies, chronic fatigue, gastrointestinal problems, bladder problems, headaches, skin rashes, febrile seizures, memory loss, bronchitis, sleep apnea, colds, sore throats, diarrhea, emotional distress and a reoccurrence of cancer. Plaintiffs also claimed that virtually all of their personal property was lost, damaged or destroyed as a result of the repairs effected to the unit. In deposition testimony, plaintiffs claimed they lost "millions" for personal property and emotional distress damages.

In support of their claims, Plaintiffs engaged Scott Environmental to perform mold testing of the unit. Bulk samples of drywall in the water heater closet did reveal the presence of stacyhbotrys. Scott also took a swab sample on a wooden beam near the air conditioning unit and discovered cladesporium mold. Notably, the air testing performed by Scott did not find any elevation of mold spores in the unit, actually concluding the unit seemed to be a healthy living environment.

Judge Randall Wilkinson allowed plaintiff medical expert Dr. Roger Katz to testify at trial over objections that his testimony lacked foundation and was based on testing methodologies not generally acceptable under the Kelly-Frye doctrine. Thereafter, Dr. Roger Katz, testified during trial that the Plaintiffs were in fact allergic to stachybotrys. Dr. Katz also concluded, based on his review of Scott's mold reports, that Plaintiffs were exposed to stachybotrys mold while living in their unit.

Plaintiffs' attorneys asked for property and personal injury damages. They projected future medical expenses. According to Kevin Smith, the settlement demand decreased with the passage of time, dropping eventually from $500,000 to $125,000 during trial. Smith also advised that all causes of action were effectively thrown out prior to the trial by the court, with the jury only deciding the negligence cause of action. The jury was particularly impressed with the response of Equity Residential which went to extraordinary lengths to relocate and address the concerns of its residents.

In terms of a national scorecard on mold bodily injury trials, this case is believed to be the 20th such case nationally to proceed to trial and verdict. Of this number, 11 have been verdicts favorable to the defense. Five of the 20 cases have proceeded to trial in Orange County, California, of which two of the five have been verdicts where nothing has been awarded on the claims of bodily injury from exposure to mold. Notably, trial lawyers Kevin Smith and Sam McDermott tried both of these Orange County cases. Nationally, Wood, Smith, Henning & Berman has been involved in four of the 20 cases where verdicts favorable to the defense have been returned by the jury.

Observers in the construction, property management and insurance industry have taken particular interest in the outcome of trials in this emerging area of law. Mold claims have been blamed for skyrocketing insurance premiums and insurance carriers pulling out of markets entirely. Recent defense verdicts, particularly in cases where experts are allowed to testify as to exposure and injuries, underscore the difficulty for plaintiffs in succeeding when the decision is left to the capable hands of the juries.

The jury in Shapiroholland deliberated for less than thirty minutes, and then returned the defense verdict. The jury found for the defendants 10-2 on the negligence cause of action.

Wood Smith Henning & Berman congratulates Kevin Smith and Sam McDermott for their expertise, diligence and extraordinary work during this closely-watched case.

Best regards,

Steve

Stephen J. Henning
Wood, Smith, Henning & Berman LLP
355 South Grand Avenue, 25th Floor
Los Angeles, CA 90071-1560
(213) 633-1403 direct
(213) 633-1400 main
(213) 620-8694 facsimile
shenning@wshblaw.com
www.wshblaw.com

Kevin D. Smith
Wood, Smith, Henning & Berman LLP
355 South Grand Avenue, 25th Floor
Los Angeles, CA 90071-1560
(213) 633-1402 direct
(213) 633-1400 main
(213) 620-8694 facsimile
ksmith@wshblaw.com
www.wshblaw.com

Sam L. McDermott
Wood, Smith, Henning & Berman LLP
611 Anton Blvd., Suite 1050
Costa Mesa, CA 92626
(714) 754-1266 main
(714) 668-2962 direct
(714) 434-1946 facsimile
smcdermott@wshblaw.com
www.wshblaw.com

 

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