Now that asbestos litigation has just about run its course, what is shaping 
     up to be the next big wave in toxic torts? Try mold. A primitive life 
     form, it comes in several ominous-sounding varieties - including 
     aspergillus, trichoderma, and stachybotrys - and thrives in high-cellulose, 
     moisture-absorbing building materials. But for trial lawyers, as well as 
     toxicologists, the most salient point is that these organisms emit toxic 
     metabolites that make people ill. Symptoms range from headaches and 
     respiratory ailments to cognitive dysfunction. 

     An estimated 2,000 plaintiffs are currently involved in pending toxic mold 
     cases throughout California - a phenomenon that is attributable to 
     scientific advances that have linked mold growths indoors to a variety of 
     health problems. 

     Southern California's buildings are especially problematic, particularly the 
     older ones, says Newport Beach attorney Court B. Purdy, of Wentworth, Paoli 
     & Purdy, because of both the climate and the building materials that are 
     used. But these cases are popping up in other states as well, as was 
     demonstrated three months ago in Philadelphia where 250 lawyers attended the 
     nation's first national toxic mold litigation conference. 

     Toxic mold has the power to turn a simple property loss into a high-stakes 
     personal injury suit, with punitive as well as general damages. Just how 
     big is the potential payoff? Consider Florida, where within the past three 
     years two courthouses contaminated by toxic mold - one in Polk County, the 
     other in Martin County - gave rise to a pair of lawsuits. The first yielded 
     a settlement of $48.5 million; the second, both an $8 million settlement and 
     a $14 million jury verdict, which was later affirmed by the Florida District 
     Court of Appeal. 

     For the lawyers who litigate them, the toxic mold cases that involve 
     courthouses do, of course, have a certain added poignancy that the others 
     lack. But for Alexander Robertson IV, a Los Angeles - based litigator, 
     that's not the only thing that makes them special. "In my seven years of 
     doing toxic mold cases - cases involving schools, hospitals, commercial 
     buildings, and homes - I've never seen the level of cover-your-ass behavior 
     as I have in the government sector," he says. 

     Robertson describes a case he's working on now that involves the Visalia 
     Courthouse in Tulare County, which became the focus of an intensive 
     investigation two years ago after county officials received a spate of 
     health-related complaints. In all, no fewer than ten reports were produced 
     for the county by December, 1999, documenting the extent of the problem. 
     But they weren't made public until February 2000, and by then more than 150 
     courthouse employees, including several judges, had fallen ill from the 
     mold. 

     In addition to the Visalia suit, Robertson is juggling five other county 
     government mold cases as well. And even though the Legislature is now 
     considering legislation that would set standards for inspection, removal, 
     and disclosure, the good news for plaintiffs attorneys is that mold is a 
     source of income that's not likely to dry up any time soon. As Robertson 
     observes: "They stopped manufacturing and using asbestos years ago, but mold 
     is naturally occurring; it'll be around for at least the next 100 years."
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California Supreme Court Grants Petition For Review In Rojas

On January 15, 2003, the California Supreme Court unanimously granted a
petition for review of the Court of Appeal's decision in Rojas v. Superior
Court (Coffin), 102 Cal. App. 4th 1062 (2002).  As we previously reported,
although the Rojas decision was directed at determining the scope of the
mediation privilege, it also held that raw data from mold testing was
evidentiary in nature and therefore not subject to protection under the
attorney work-product doctrine, regardless of the circumstances under which
the testing was conducted.  That decision had important implications for
mold exposure litigation.  For instance, under Rojas plaintiffs could be
compelled to turn over the mold testing data underlying their claims at the
beginning of a case, without the need to wait for expert witness discovery.
However, Rojas also had a down side for defendants - the results of testing
done by defense consultants had to be turned over to plaintiffs, regardless
of the results.

Under Rule 976(d) of the California Rules of Court, unless otherwise
ordered by the Supreme Court, the granting of the petition for review
supercedes the Court of Appeal's decision in Rojas and effectively
depublishes it.  The parties to the Rojas case will now have the
opportunity to submit further briefing and the case will be set for oral
argument, eventually resulting in a written opinion from the Supreme Court.

In the meantime, the law will remain as it was prior to Rojas.  Some
observers felt that the Rojas decision simply applied the existing law of
work-product in the context of test results.  If this view is correct, then
parties still cannot shield the raw data from testing, even if it is
conducted by litigation consultants.  Others argue that Rojas went too far
and that its application would effectively prevent attorneys from preparing
their cases without fear that their work would be used to benefit their
opponents.  Whichever view is correct, Rojas had offered an unambiguous
rule in regard to the handling of mold test data.  The certainty which
briefly existed under Rojas is now gone, at least until the Supreme Court
issues its own decision.

We expect there to be a great deal of debate on the issue pending the
Supreme Court review of the decision.  At the same time, those handling
mold claims should be aware of this issue in connection with the collection
of raw data and the potential impact of that data on litigated matters.  At
a minimum, being able to shield test results from disclosure as work
product until the data is fully analyzed can be an important tool for the
defense.  For this reason, those faced with microbial issues where there is
serious exposure are wise to manage the engagement of the testing entity
and to treat the test results in a manner that allows for a later argument
that the raw data and reports are covered by the privilege.

I am co-chairing Mealey's Litigation Conference February 3-4 in La Jolla,
California.  This conference features an all new program which will
discuss, among other things, cutting edge legal developments.  If you would
like information on the conference, please let me know.

Also, if you would like a copy of the underlying Rojas case, please let me
know and I will email it to you.  We will keep you advised as this decision
winds its way through the California Supreme Court.

Best regards, Enjoy!
Steve Henning
WOOD, SMITH, HENNING & BERMAN
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