mold – Overlawyered

Inmate’s moldy mattress worth $295,000

Walter Olson — Wed, 24 Sep 2008 13:10:06 +0000

Following a jail riot, Reggie Townsend, serving 23 years in a Wisconsin prison, was put in a segregation unit with “wet, moldy and foul-smelling” bedding which the jailer did not change despite his request. “Though he did not suffer any physical harm from the unsanitary bedding, Townsend was deprived of the ‘minimal civilized measure of life’s necessities,’ the jury decided after deliberating six hours,” and awarded him $295K. (The Smoking Gun, Sept. 19; AP/Milwaukee Journal-Sentinel, Sept. 23).

Tags: mold, prisoners, Wisconsin

Inmate’s moldy mattress worth $295,000 is a post from Overlawyered - Chronicling the high cost of our legal system

LA Weekly: The Mold Rush and the case of Sharon Kramer and Bruce Kelman

Ted Frank — Thu, 24 Jul 2008 21:36:53 +0000

Welcome LA Weekly readers; this website is mentioned and I am quoted in a less-than-entirely-coherent story about mold litigation in this week’s LA Weekly. The story focuses on Sharon Kramer, who has given up a full-time career to pound the drums over her fight with her insurer alleging mold harms after a remediation; and an unfortunate lawsuit brought by scientist Bruce Kelman against Kramer. Kelman only wants an apology from Kramer for her issuing a press release that falsely claimed he lied under oath; Kramer has refused, and Kelman is still stuck in litigation where he will likely come up with a Pyrrhic victory. (Kelman’s work writing a layperson’s guide to the science of mold for the Manhattan Institute is central to the libel allegations.) Kramer, meanwhile, blames her aging on exposure to mold, rather than, say, turning 56. The story suffers for treating Erin Brockovich as the archetype of a justified plaintiff; Overlawyered readers know better.

The story is worthwhile for one new tidbit of information, the poetic justice facing Ed McMahon for his bogus mold lawsuit:

In 2003, another raft of huge mold news stories broke nationwide, and Kramer paid close attention. The most famous, and strangest, was that of Johnny Carson’s sidekick Ed McMahon, who took a $7.2 million settlement after suing for $20 million in his claim that mold made him and his wife sick — and killed his sheepdog, Muffin. …

In the McMahon case, some see the tragic unraveling of a popular public figure egged on by an attorney, Allan Browne. No hard, scientific evidence was ever made public proving that McMahon or his dog suffered the specific mold allergies and immune-system problems that, in rare cases, can be set off by household mold.

Since then, McMahon has become a sad figure, with a series of new troubles, including his default this year on his palatial 7,000-square-foot home on Mulholland Drive, involving a $4.8 million loan from the infamous lender Countrywide. And he just sued again, bizarrely accusing investment tycoon Robert Day of having in his mansion a poorly lit staircase on which McMahon says he fell during a party last year. McMahon is belatedly alleging he broke his neck but that doctors missed it.

The longtime TV pitchman spent years convincing the courts and the general public that his home contained rampant, poisonous, deadly mold strong enough to fell a large dog. McMahon talked it up for so long that he now faces the daunting task of selling a home he can no longer afford, that people believe is riddled with toxins.

Also interesting to me is the story’s quote of me. I gave an e-mail interview to the author, Daniel Heimpel in February. It’s interesting what gets used and what doesn’t get used, so I am going to attach the entire interview.

Here’s the full February 28 interview:

Why did the mold litigation blob form?

Entrepreneurial lawyers saw an opportunity to use junk science to blame deep pockets for a variety of idiopathic diseases. We saw it with powerlines, we saw it with Bendectin, we still see it with vaccines. Every once in a while, trial lawyers completely fool the legal system, and make billions with one of these theories, as they did with silicone breast implants. “Toxic mold” was just another stab at the litigation lottery.

Why has it ebbed?

Has it ebbed? I still see reports of an occasional verdict, including a big $22 million settlement in 2005, and there were thousands of cases pending when I last saw it. Rep. Conyers just introduced legislation on “toxic mold” last year, so someone is still lobbying about it. Rationally, it should have ebbed, because the toxic mold suits are meritless. The most notorious for-hire plaintiffs’ mold expert, Gary Ordog, was disciplined in 2006, which likely ended his $975/hour litigation consulting career, and likely a number of cases built around his testimony. Together with NIH, Institute of Medicine, and CDC reports, and insurance policies that more explicitly excluded recovery based on theories of injury from mold, and tort reforms in Texas, where mold litigation was the biggest business, plaintiffs’ lawyers may have sought, er, greener pastures.

How does the fear of mold tie into our culture of fear?

What does this fear of an enigma say about our society?

Fascinating, isn’t it? We coexist with mold for thousands of years. My friend, Walter Olson of the Manhattan Institute has said sarcastically “How unfortunate must we be to live in the twenty-first century, when plaintiffs’ lawyers have discovered the terrible health effects!”

Economic incentives have a lot to do with it: trial lawyers have an economic incentive to describe something relatively innocuous–vaccines, mold, powerlines, silicone breast implants, Bendectin–as something deadly and fit it into the fictional Erin Brockovich paradigm, which appeals to jurors’ preconceived notions. (Erin Brockovich herself has brought a number of bogus lawsuits trying to invoke this paradigm–including over mold.) Low-quality scientists of a variety of levels of sincerity are given the economic incentive to take the same position. Journalists have the economic incentive to tell a story that fits the paradigm whether or not it’s true, because the victims-and-villains storyline that could affect the viewer attracts eyeballs. The three work together symbiotically: the expert witness feeds stories to the lawyer and vice versa; the lawyer feeds stories to the journalist with the expert; the journalist creates publicity that generates business for the lawyer and the expert witness, which in turn creates more stories for the journalist.

The culture of fear is a lot larger than that (others take advantage of it), but I think the reason it is so much larger in America is because only here do we make people millionaires for inventing new things to be afraid of.

Who has made the most money off the mold litigation blob?

Attorneys, though the “mold remediation” business may well have done pretty well for itself.

And here’s how it was translated in the news story:

A lot of people are pulling for Kelman — to the great shock of Kramer, long accustomed to being the Brockovichesque heroine. Ted Frank, a lawyer and contributor at overlawyered.com, a Web site that tracks suspect litigation, says, “Entrepreneurial lawyers saw an opportunity to use junk science. … We saw it with power lines, we saw it with Bendectine” — a discontinued drug used to lessen morning sickness in pregnant women. “Every once in a while, trial lawyers completely fool the legal system and make billions with one of these theories, as they did with silicone breast implants. ‘Toxic mold’ was just another stab at the litigation lottery.”

I wasn’t asked at all about Kelman and Kramer, but am portrayed as having an opinion about it. And my observations about Brockovich and vaccines were deleted. Note also that “Bendectin” was misspelled, though I spelled it correctly.

As mildly annoyed as I am about the story, Sharon Kramer is furious for being treated as anything less than a heroic martyr, and has had an army of supporters leaving angry comments at the LA Weekly website.

Tags: environment, expert witnesses, junk science, libel slander and defamation, Manhattan Institute, mold, Ted Frank

LA Weekly: The Mold Rush and the case of Sharon Kramer and Bruce Kelman is a post from Overlawyered - Chronicling the high cost of our legal system

“We had nine lawyers, they had nine lawyers”

Walter Olson — Sat, 07 Jun 2008 17:07:56 +0000

Foreclosure-endangered TV personality Ed McMahon on why the much-publicized $7.2 million settlement over mold in his Beverly Hills house didn’t really go that far, once the professionals got their cut: “By the time that’s all over, and you rebuild the house from the outside in. … A lot of things went wrong.” (AP/Grand Haven (Mich.) Tribune, Jun. 7).

Tags: mold

“We had nine lawyers, they had nine lawyers” is a post from Overlawyered - Chronicling the high cost of our legal system

Kellen Gorman v. Crenshaw Lumber

Ted Frank — Tue, 08 Nov 2005 00:40:24 +0000

Three years ago, when he was 2, a medical exam discovered brain lesions on Kellen Gorman. His family blames “toxic mold” for his autism (though his two siblings weren’t affected) in the house, and sued 17 defendants—including the lumberyard that supplied the wood for the house. Six weeks into trial, the case has settled for $22.6 million and, amazingly, it’s the lumberyard that’s paying the bulk of it: $13 million, or more than $200,000 for each of its sixty employees. As it was, the lumberyard had hired seventeen experts to try the case, but had ten of them (including a toxicologist and microbiolgist) excluded when they missed a court-ordered deadline for disclosure. (The Gormans’ attorney, Brian Witzer, accuses a defense attorney of trying to backdate a document, and says he has filed ethical charges.) The Gormans already have plans for their millions: “We’ll tear [the house] down and take it to a hazardous waste dump and build a really nice house,” [Dana] Gorman said. “It will cost a lot to tear down and rebuild.” (Josh Grossberg, “Manhattan Beach family wins $22.6 million suit”, Los Angeles Daily Breeze, Nov. 7; NBC-4, Nov. 4). And if housing seems a bit more expensive in California, it’s because even the raw materials suppliers must purchase insurance against the risk of multi-million-dollar junk science verdicts.

Tags: environment, junk science, mold

Kellen Gorman v. Crenshaw Lumber is a post from Overlawyered - Chronicling the high cost of our legal system

Welcome Forbes readers

Ted Frank — Fri, 25 Mar 2005 03:58:36 +0000

We’re honored for this website to have such a prominent place in a column in the latest Forbes. (William Baldwin, “Seventh-Amendment Follies”, Apr. 11). Links to the stories mentioned: $27 million Ford Escort verdict; $49 million punitive damage Dodge Caravan verdict and follow-up; $4.9 billion Chevy Malibu verdict. You may also be interested in our related site, Point of Law, which has a more academic focus, including a section on the issue of science and the courts.

The latest issue of Forbes also has an excellent story about the junk science behind mold litigation. Dr. Gary Ordog travels the country, diagnosing just about every conceivable illness as being caused by exposure to mold.

A California judge once said Ordog “lacks credibility completely” after he testified that he was chief toxicologist at Henry Mayo Newhall Memorial Hospital in Santa Clarita, which has no such department; that he’d published “hundreds” of scholarly articles, when a search of the PubMed database turns up fewer than 70, almost all of them dealing with gunshot wounds and trauma; and that former President Bill Clinton called him personally to run a special mold commission for the Environmental Protection Agency, even though an EPA spokesman says the agency’s authority doesn’t include indoor air quality. Ordog “is completely abusing the system,” says James Robie, a defense lawyer with Robie & Matthai in Los Angeles who has cross-examined Ordog several times. “He is possibly the most dishonest man I have ever met.”

(Daniel Fisher, “Dr. Mold”, Apr. 11). For more on mold litigation, see May 26 and links therein.

Tags: about the site, expert witnesses, junk science, mold

Welcome Forbes readers is a post from Overlawyered - Chronicling the high cost of our legal system

“Panel Finds Mold in Buildings Is No Threat to Most People”

Walter Olson — Wed, 26 May 2004 09:44:18 +0000

“Stepping into an issue that has alarmed homeowners and led to hundreds of lawsuits and billions of dollars in insurance payments, a government panel of experts reported yesterday that toxic mold in homes did not appear to pose a serious health threat to most people.” A panel of epidemiologists, toxicologists and pediatricians convened by the Institute of Medicine, an arm of the National Academy of Sciences, surveyed existing scientific literature on the subject. “Though the experts said mold and indoor dampness were associated with respiratory problems and symptoms of asthma in certain susceptible people, they found no evidence of a link between mold and conditions like brain or neurological damage, reproductive problems and cancer.” (Anahad O’Connor, New York Times, May 26). For more on mold litigation, see Dec. 4 and earlier posts; “The Growing Hazard of Mold Litigation”, U.S. Chamber of Commerce and Manhattan Institute Center for Legal Policy, Jul. 17, 2003 (paper in PDF format/press release). More: press release, video briefing and report links from National Academies.

Tags: environment, Manhattan Institute, mold

“Panel Finds Mold in Buildings Is No Threat to Most People” is a post from Overlawyered - Chronicling the high cost of our legal system

Mold — to the highest bidder!

Walter Olson — Mon, 23 Jun 2003 00:07:24 +0000

“Did you hear the one about the guy with the Park Avenue apartment full of toxic mold? He couldn?t find anyone to buy the place for $15.5 million, so he jacked up the asking price last week to $18 million. … At 515 Park Avenue, real-estate developer Richard Kramer would have you believe that recently, his apartment went up in value by $2.5 million even as he and the condominium?s board of managers continue to fight multimillion-dollar lawsuits against the building?s developers and sponsors, in which they allege that the 43-story tower is plagued with a mold infestation and major construction deficiencies.” (Blair Golson, “Toxic-Mold Gold: Shoddy High Rises Sold With Flaws”, New York Observer, Jun. 23 (temporary URL — after it expires, try search function))

Tags: mold

Mold — to the highest bidder! is a post from Overlawyered - Chronicling the high cost of our legal system