Our firm prides itself in being “green” and we strive to be as paperless a law firm as possible. In addition to scanning all of the documents that we generate, we also receive all of our faxes as email attachments thereby eliminating the need to print. When producing larger documents to other attorneys, we put those files on CD in a pdf format. In the past three years, our firm has saved tens of thousands of pieces of paper from being printed and, consequently, we’ve significantly reduced the need for storage. The legal profession is heading in the “paperless” direction and we believe that our firm has taken a strong step forward in protecting the environment and readying itself for the future of litigation.

Attorney Brad Kelsky was able to overcome a legal challenge to the admissibility of Dr. Ritchie Shoemaker’s opinion on mold-related personal injury claims thereby allowing the doctor to testify at trial.  As seen elsewhere in this blog, mold-related personal injury claims are very difficult to prove.  In any case where these types of personal injury claims are claimed, the defense usually challenges the propriety of the plaintiff’s expert’s medical opinion.   In Florida, this is called a Frye challenge.  Under Frye, the plaintiff must prove that the expert’s methodology is generally accepted by the scientific community.  In a recent case in Collier County, Florida, two of the defendants challenged Dr. Shoemaker’s opinions and each brought their own expert witness to testify at the Frye hearing.  Brad E. Kelsky Esq., counsel for the plaintiffs, was able to establish that Ritchie Shoemaker, M.D.’s methodology in reaching his opinion was generally accepted by the scientific community.   For this reason, the court ruled against both defendants and ruled that Dr. Shoemaker will be able to offer his medical opinions about the plaintiffs’ personal injuries and how those injuries were related to exposure to a water damaged building.  This is a very significant victory for the case in Collier County and for those cases in other states where Dr. Shoemaker’s methodology has been challenged.

The news media has generated tremendous  fear associated with health problems caused by Chinese Drywall.  However, this widespread fear may be entirely misplaced.   Headaches, cough, sinus problems and breathing problems are also associated with the presence of mold.  Given the fact that Chinese Drywall was installed in a vast minority of homes, it is far more likely that problems associated with the symptoms identified above are caused by mold as a result of water intrusion.  For example, roof leaks, window leaks and door leaks will allow water to enter into a home possibly leading to the development of mold.  Likewise, if there is a fault – even a small fault—in an air conditioning system, the collision of warm air and cold air will result in condensation which, very likely, will result in mold growth.  It should also be noted that it is not uncommon for air conditioning coils to turn black due to the presence of mold (this issue is also known to occur in Chinese Drywall cases). 

The point is this:  if anyone has the symptoms mentioned above, the public should also be aware that there may be a culprit other than Chinese Drywall.   If there is a concern over the presence of Chinese Drywall, we would recommend that a home be tested for the presence of mold as well.  We also suggest that homeowners discuss problems with other homeowners in their community to find out if there are common complaints and issues.  We would not be surprised to find out that other individuals have issues with, for example, their air conditioning systems or windows.  If there are common complaints like these, homeowners should not limit their investigation solely to the existence of Chinese Drywall.  Instead, we believe it is imperative that the home be tested for mold as well.

We are not downplaying the presence of Chinese Drywall and we continue to be interested in pursuing these claims.  However, we feel it important for the public to understand that health problems may be caused by something other than Chinese Drywall, e.g., mold, and that determining the source of the problem in a home should not be limited to one cause only.

This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.

Individuals in search of mold remediation contractors should note that, presently, there are no Florida statutes regulating this profession.  For that reason, it is very important to gather as much information as possible about the qualifications of a mold remediation contractor.  At a minimum, we suggest that individuals request a copy of the proposed contractor’s insurance policy and a statement (preferably in writing) about the warranty or guarantee that the contractor will provide for the remediation work to be performed.  Additionally, we suggest that an individual specifically inquire of the mold remediation company  whether the contractor has determined that the source of the water intrusion has been found and fixed.   The failure to remedy the source of the water intrusion prior to conducting the remediation could very well result in the mold returning thereby causing the individual to spend, perhaps, thousands of dollars for a failed remediation.  Thus, if a remediation company cannot provide an individual with this specific information, we suggest consulting with a mold professional who can confirm the absence of the water intrusion source before doing any remediation.

This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.

Mold-related health claims can be very difficult from a litigation standpoint.  Our firm receives many inquiries from people seeking personal injury damages because of mold exposure.  As is often the case, however, people have not tested their condominium units/homes/apartments for the presence of mold.   Mold testing will provide a person with a detailed analysis showing exactly the types of mold that a person has been exposed to.  The advantage of this information is that a doctor can than specifically test, for example, the allergic reaction caused by the particular mold exposure.  Without specific testing, though, proving a personal injury case will be extremely difficult.  Irrespective of any type of mold-related legal action, it is important to at least know what someone has been exposed to in order to seek the appropriate medical care. 

This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.

Condominium unit owners who rent their units need to take tenant complaints about the existence of mold very seriously.  While the landlord must maintain the unit, the condominium association has a statutory obligation to maintain the common elements.  In the event that the mold is caused by water intrusion stemming from a common element, the unit owner cannot just wait for the Association to take care of the problem.  Instead, the landlord must demand the Association to fix the common elements as quickly as practicable and should stay on top of the Association until the common elements are fixed.  Because Associations often take time to address situations like this, the landlord should make every effort to accommodate their tenant.  This may mean that the landlord should agree to end the lease and pay for the tenant’s moving costs.  While this may be an extreme situation, the landlord must understand that the existence of mold in the unit can expose the landlord to liability.   If the Association drags its feet to correct the common element problem, the unit owner would have a potential claim against the Association for lost rent.  Of course, each situation is different and needs to be addressed on its own merits.

This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.

Condominium unit owners and home owners alike should note that mold infestation may not be limited to just drywall, carpeting, etc.  Air conditioning systems can breed mold.  For example, if duct work is not appropriately sealed or if there are other points where cold air comes into contact with warm air throughout the air conditioning system, moisture will develop at the point of that “leak” which can then produce mold.  As a result, the air conditioning system can literally disperse mold throughout the home.   Additionally, if there is mold in the wall spaces and the air conditioning system is compromised, mold can be sucked up into the system from this extrinsic source.  Either way, an air conditioning system that has actual or potential leaks can continue to spread mold even if there has been a remediation.  Thus, prior to conducting a meaningful remediation, the homeowner/unit owner should make sure that the entire air conditioning system is in good working order.  The last thing anybody wants to do is to pay thousands of dollars to remediate the home to only find out later on that there is mold within the air conditioning system that being spread throughout the home.
 
The homeowner/unit owner should keep in mind that, in new construction, the air conditioning installer may not have done their job correctly and that, as a result, the owner may have a direct claim against the contractor for a construction defect or negligence.  As with any mold case, it is important for a homeowner/unit owner to document, with photographs, any and all problems that may exist in the home.

This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.

With all the new housing construction that occurred over the last few years preceding the current housing crisis, many homeowners found mold throughout their homes due to the presence of multiple water intrusion sources.   Mold in the home affects all types of homeowners without any type of discrimination in the value of the house.  Our firm has seen water intrusion sources stemming from roofing problems, door and window problems, air conditioning problems  and sloping problems on decks and on the ground that caused water to flow back toward the house.  Of course, this list is certainly not exhaustive.  However, if there is a viable claim against a home builder/developer, a homeowner must be cognizant of the fact that there is a statutory process that must be undertaken (with limited exceptions) before filing suit against the builder.  There is also some question as to whether this same pre-suit process applies to a builder’s subcontractors (with whom the homeowner has not directly contracted with) which may affect a homeowner’s ability to file suit against that entity.  On the other hand, this pre-suit process often leads to resolution of claims without the need to file a lawsuit.  The homeowner must be aware that this process can be very difficult to navigate (and also leads to other issues such as whether the homeowner may be required by the builder to release all claims that they may have against that builder).  As a result, a homeowner must carefully consider whether their potential claims should be limited to the builder only or should be made against both the builder and its subcontractors.  Likewise, the homeowner should carefully consider the potential legal pitfalls that could occur in this pre-suit process.
 
This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.

Water intrusion suffered by a condominium unit owner often leads to the development of mold.  Putting aside the fact that mold can negatively impact one’s health, unit owners face difficult challenges trying to repair their units because of the interplay between a “common element” and the unit owner’s responsibilities.  While common elements generally involve the unfinished perimeters of a unit, for example, condominium associations do not regularly take steps after a water intrusion event to remove drywall or to take other steps to dry out these perimeter areas (common elements or limited common elements as defined by the Declaration of Condominium).  When the Association fails to dry out the water intrusion affecting the common elements, the Association creates a positive environment for mold to develop.  As a result, if there is a water leak from a neighboring unit or from the roof of the condominium, etc., a unit owner recognizing the existence of water intrusion should immediately notify the Association.  If the Association does nothing, depending on the circumstances, then a unit owner can seek damages or injunctive relief to force the Association to maintain the common elements which it is required to do by statute.  Obviously, a unit owner wants to ensure that their unit is free from mold and if the Association does not maintain or repair the common elements following a water intrusion event, then the unit owner has the statutory right to take legal action.
 
Of course, each case must be evaluated on its own merits as each case has its own factual circumstances. This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.