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Papers on Mold Litigation
Our experience with mold cases has included property damage claims, personal injury claims, construction defect claims, defective building products, and bad faith claims.
We have also been conducting research on jurors' experiences with, and attitudes toward mold in various areas around the country. Our survey research from various venues around the country demonstrates that a significant percentage of the jury pool believes that mold is very dangerous and that it is dangerous to their health to work in a building containing mold. Jurors feel that if mold grows in a building, this proves the construction was shoddy and improper and builders and developers should take full responsibility for mold that grows in their buildings.
There are a couple of oddities about mold cases that make them unique from other types of litigation.
First, mold cases never seem to end. For most property damage claims, there is a time at which the damage is over. When facing trial, particularly one involving a bad faith claim, time has passed and a repair of the damage may have occurred. With the mold claims that we have seen, it seems that the damage continues because the mold issue has not been resolved. The property still contains mold, the remediation was not satisfactory and the plaintiff cannot return to live in the property. The never-ending nature of the damage fuels resentment towards claims handling practices. The decision on coverage and delays in fully resolving the claims are seen as supporting a bad faith claim. Whether the insurance company is obligated or not, jurors want the problem fixed. In mold cases, that closure seems more difficult to achieve, and jurors find this lack of closure irritating.
Second, damage claims in mold cases escalate over time. In a motor vehicle case, a car can be damaged to such an extent that the car is totaled. In mold cases, the clean-up/remediation costs for contents and dwelling repair often appear to exceed the value of dwelling by some multiple. It often appears the best solution from a damages standpoint is for the insurance company to take over the property. There may be legal arguments against such a move, but from a practical standpoint and resolution of continuing claims issues, it sometimes seems the best solution.
People have very strong emotional attachments both to their own homes and to the idea of home. What seems like a logical solution by the defendant may not satisfy some jurors, who may find the prospect of a plaintiff losing his or her home because of someone else's negligence to be very upsetting. Just as all jurors in employment cases bring a long history of personal work experience to bear on a case, all jurors in mold litigation bring a lifetime of emotional associations with "home" to bear on evaluating liability and damages in these cases. We believe survey research should be conducted to see how jurors respond to the solution of buying a plaintiff's home to resolve a mold claim.
Juror Concerns about Airborne Diseases
There have been several significant airborne diseases or trends in respiratory health that in the recent past have captured public attention. These include:
- Legionnaire's Disease
- Anthrax Contamination
- Increase in child and adult asthma
Consistent with concern about these problems, our jury research demonstrates greater concerns about the dangers of airborne contaminants as compared to water borne contaminants. The critical difference seems to be that jurors feel they have no way to protect against unseen airborne risks. When people feel out of control, they feel anxious. They are also more likely to sympathize with the plaintiffs if they believe the plaintiffs have little ability to control a toxic exposure.
Juror Anxiety and Mold Litigation
In general, juror anxiety about case issues presents a significant problem for the defendant. If jurors are anxious about case issues, research has shown jurors are less able to follow or track a logical argument. Thus, they are more inclined to fall back into old, emotional patterns of reaction that ignore external stimuli. And it is usually the defense that must present a complex, technical argument that relies on jurors to set aside their emotional reactions to focus on evidence and the law. For litigation involving property damages related to mold and possible claims of personal injury, juror anxiety raises concern for attorneys who have to select a jury in a mold case. Hence, good jury research resulting in a statistically reliable jury strike model can be instrumental in finding "anxious jurors" and removing them from the panel before the start of trial.
Mold and Damages
There is no doubt that juror emotion fuels damage awards. Whereas defense attorneys have some good, simple techniques for getting jurors to disregard sympathy in their verdict, there is no easy way to block or redirect feelings of anger that might emerge in a trial. In terms of mitigating jurors' anger towards a company, it is important that (1) insurance company witnesses do well on the stand and (2) the defense have themes that will allow it to explain what happened. In other words, you must ensure that jurors do not find a ready target that can then justify their anger and give a forum in the jury room for those who want to place anger onto the defendant. Trial Behavior can assist counsel in witness preparation with key company witnesses and can work with counsel to develop salient themes that witnesses can reinforce through their own testimony.
Papers on mold litigation
Mold Litigation: Themes, Mock Trials and Other Tactics 
Mold is in the news. This is of concern to those involved in settling and litigating those cases because the media usually sensationalizes the issue. This paper presents recent survey data on juror attitudes to mold and discusses the emotional charge that mold cases can carry. It then outlines specific strategies for succesful mold defense.
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