WHAT HAS HAPPENED TO CALIFORNIA MOLD RESEARCH AND FUNDING? INVESTIGATION CUT OFF AT THE KNEES

By: RICHARD E. QUINTILONE II, ESQ. (www.moldlawyer.cc)

In 2001, the California legislature passed the Toxic Mold Protection Act of 2001, and forgot to implement on salient detail—funding. A lack of funding is the death knell of any legislative act that requires research. Chapter 19 (commencing with Section 26200) added to Division 20 of the Health and Safety Code, was later amended to provide a mere $25,000 in funding to study and publish findings on fungal contamination affecting indoor environments, in accordance with the Act.

The law required findings to be published on January 1, 2003, by the California Research Bureau. Specifically, the Bureau “shall submit to the Legislature and the Director of Health Services the published findings of the study.” However, what have we seen? Nothing much until February 2006 where the California Department of Health Services’ (“DHS”) finally determined it could not determine permissible exposure levels for indoor molds.

This article is a quick summary of the recent DHS' positions on the subject, as well as recent discussion on commentary from the Courts.

California Department of Health Services

Up until November 2005, the DHS has published nothing more than Mold in My Home, What Do I Do? from 1998, and revised in 2004 (See http://www.dhs.ca.gov/ps/dcdc/disb/pdf/mldfaqpp.pdf). In November 2005, the DHS, Occupational Health Branch published a new fact sheet on what to do in the event mold was discovered in the workplace, entitled Molds in Indoor Workplaces. The DHS in conjunction with the California Department of Industrial Relations’ Hazard Evaluation System & Information Service (“ESIS”) outlines the basic responses to answers everyday questions about what to do. (See http://www.dhs.ca.gov/ohb/HESIS/molds.pdf ) While a number of phone numbers and web sites are provided, the overall tone of the pamphlet is mold is a “big unknown” and you should be more interested in clean up instead of testing. Sounds like great advice for employers and business owners seeking to skirt responsibility of potentially hazardous material.

The recent publications from the US Environmental Protection Agency are more up to date and include a recent summary of the agency’s position on mold as well as a summary of the often quoted Institute of Medicine’s publication Report on Damp Indoor Spaces and Health.

As of April 2006, the most recent publication on the subject was found in Implementation of the Toxic Mold Protection Act of 2001. http://www.cal-iaq.org/MOLD/SB732_LegReport_Final.pdf.

The DHS acknowledges many people have contacted the Department regarding the implementation status of the Toxic Mold Protection Act of 2001, and expressly states the “implementation of [the] statute depends on the availability of funding.”

The DHS report entitled Implementation of the Toxic Mold Protection Act of 2001 has been released and addresses the first of the Act’s tasks listed above, specifically, that DHS scientific staff consider whether it is feasible to adopt permissible exposure limits (“PEL”) for indoor mold. This document includes a discussion of how permissible exposure limits are defined and derived. After considerable research into this issue, DHS scientists concluded, “that although recent studies have strengthened the evidence between living or working in a damp environment and increased risk for respiratory symptoms, the role of mold growth in these complex environments is still unclear,” and therefore defining permissible exposure levels for indoor molds, “cannot be established at this time.”

The report acknowledges that damp buildings also encourage the growth of bacteria, dust mites and cockroaches, as well as degradation of wet building materials that can also release irritant chemicals indoors. Some or all of these chemicals or biological organisms may contribute to occupant illness. The DHS goes on to request volunteers and private funding for this important public health issue. Californians everywhere should be proud that we can fund investigatory task forces for Force Fed Fowl but care little to protect each other when it comes to the subject of indoor contaminants.

A quick search of the 2003, 2004 and 2005 DHS Legislative Summaries do not even include the term “mold” in them, evidencing that the DHS is not actively proposing legislation to resolve the funding problem and will instead rely on private donations to resolve the research budget shortfall.

California Courts

The California Court’s seem to be in a state of flux. When it come to the judges themselves they recognize a significant environmental problem as California Chief Justice Ronald M. George condemned the condition of California courts in his State of the Judiciary address last month as reported by the Los Angeles Business Journal on March 13, 2006, by openly stating:

"Current conditions in more than 90 percent of our court facilities jeopardize public and staff safety every day," he said. "Two-thirds of present courthouse space is seismically deficient, and other facilities are believed to contain toxic mold. Sixty-eight percent of courthouses do not meet basic fire- and life-safety standards, and in 75 percent of court facilities, adequate access for persons with disabilities cannot be provided."

However, when it comes to the rest of us, the Court’s have not been so concerned. Court’s regularly order plaintiff attorneys not to use the term “toxic mold” as being “inflammatory” and “prejudicial” under the Evidence Code.

A recently published appellate decision, Geffcken v. D'Andrea, 2006 Cal. App. LEXIS 419, Published March 28, 2006, the Court of Appeal discounted formerly admissible evidence of a mycotoxin antibody test and a blood serology test to prove causation in a toxic mold exposure case and upheld the trial Court’s exclusion of this evidence under Evidence Code section 352.

The plaintiff in Geffxcken argued that the trial court erred in excluding an environmental and industrial hygienist's environmental sampling data pursuant to Evidence Code 352. This Code section determines admissibility based upon prejudicial value vs. probative value and if neither exists, Court’s generally exclude the evidence. The trial court disagreed that the testing evidence and blood should be admissible and concluded that the data had little, if any, probative value.

A defense witness testified that the hygienist's pervasive chain of custody errors and deficiencies invalidated the integrity of the sampling results. At most the data showed that mold spores, not mycotoxins, were present at the properties in question. Even if the presence of mold spores was assumed, plaintiffs presented no competent or generally accepted scientific evidence establishing the presence of mycotoxins from such spores.

The Court of appeal held that the trial court properly excluded the results of a mycotoxin antibody test and a blood serology test, as plaintiffs failed to show that either test had gained general acceptance in the relevant scientific community. The trial court also properly excluded the testimony of plaintiffs' medical expert. In the absence of any reliable evidence that plaintiffs had been exposed to mycotoxins at the properties in question, the medical expert's opinions were speculative and conjectural.

While this case may be of limited value as it relates to poor evidence collection procedures, a fractured chain of custody and a unique set of facts, it demonstrates the judiciary’s overall view that while allergenic responses to mold are widely accepted, the alleged “toxigenic” response may never get to trial.

Perhaps the Legislature will have to request the Chief Justice George to produce his chain of custody logs when he refers to the Court’s suffering from “toxic mold exposure.” In a sense moldy Courthouses are not so bad since the Legislature cannot figure out what level is healthy or not, so both citizens and judicial officers will have to suffer together.

Conclusion

It is hard to understand how appellate judges can summarily dismiss a claim for physical injuries to mold, ruling that insufficient scientific evidence exists to support a claim, while concurrently expecting the taxpayers to fix the moldy court houses. No one said life was fair.

Maybe we will see some funding for the study of the toxic and allergenic effects of molds when the Legislative Chambers experience water damage and mold growth.

Individuals who feel they have suffered exposure to environmental conditions caused by mold, dust mites, sewage or asbestos may request a questionnaire to explore whether there is a potentially valid claim at www.moldlawyer.cc and fill out a questionnaire.

Business owners, landlords and property mangers who want to remain in compliance with the often elusive building code and environmental requirements may contact Quintilone & Associates for a consultation by writing Richard E. Quintilone II, Esq. at req@moldlawyer.cc.

Next Post

In our next post we will review the Federal Government’s response to the study of mold in the indoor environment as well as critique the Center for Disease Control’s own critique of the IOM’s Report on Damp Indoor Spaces and Health.