Lowering the Bar for Mold Claims?

On Oct. 16, 2023, the California Court of Appeal for the Second Appellate District, in Brancati v. Cachuma Village, LLC, reversed an order by the Santa Barbara County Superior Court granting a motion in limine excluding the testimony of plaintiff Dana Brancati’s medical expert in a mold bodily injury case.

That trial court’s exclusion order resulted in the dismissal of the plaintiff’s action. However, finding that the medical expert was qualified and that his opinion was “based on facts and a differential diagnosis,” the Court of Appeal reversed the trial court’s orders.

Factual Background and Summary of Opinion

Plaintiff was a tenant in defendant Cachuma Village, LLC’s property from 2012 to 2016. Per the Court of Appeal’s decision, a company called Insight Environmental had found “high levels” of mold in the residence (emphasis in the original). Plaintiff’s medical expert, Ronald A. Simon, M.D., testified that, based upon both a differential diagnosis and medical literature review, mold exposure at defendant’s property had caused her to suffer a respiratory illness. The trial court granted a defense motion in limine that argued that Simon was not qualified to testify in regard to medical causation, resulting in a dismissal of plaintiff’s claims.

In reviewing the exclusion order, the appellate court found that both an abuse of discretion standard and a de novo review for errors as a matter of law might apply. While acknowledging that trial courts are to act as “gate keepers” ensuring  that expert opinions are based on “reliable material and sound reasoning,” [see Bader v. Johnson & Johnson (2023) 86 Cal.App.5^th 1094, 1104], the Brancati decision finds that the order excluding Simon “is not consistent with the standard courts must use to decide whether to exclude an expert from testifying.” The decision also reiterates Bader that “the court does not resolve scientific controversies.”

To prove that mold exposure contributed to her injuries, plaintiff needed only to demonstrate that the exposure was more than a “negligible or theoretical” cause. [See Bockrath v. Aldrich Chemical Co., Inc. (1999) 21 Cal.4^th 71, 79].

Applying these standards, the court held that Simon had an adequate basis for his causation opinion. To start, the court held that “[m]edical doctors are experts who are in the best position to determine the nature of the illnesses experienced by their patients.” [See San Jose Neurospine v. Aetna Health of California, Inc. (2020) 45 Cal. App. 5^th, 953, 960]. Simon examined the plaintiff and conducted a differential diagnosis, reviewed the results of environmental testing and reviewed published studies. In summary, the Court of Appeal held that Simon’s opinion “was based on facts, not a leap of logic” and that the trial court erred in excluding his testimony.

Placing This Decision in Context

On its face, the Brancati decision is a boon to plaintiffs in mold exposure, habitability, and other actions involving exposure to organic pathogens. Plaintiff’s attorneys may be encouraged that the court found that the testimony of a single physician was sufficient to establish causation. The Court of Appeal went out of its way to catalog questionable information on mold exposure and compile prior case law favorable to plaintiffs. So will this decision start a new wave of mold claims, similar to what occurred two decades ago?

Perhaps not. First, this was a case in which plaintiff’s alleged injuries were “nasal congestion, runny nose, coughing, sneezing” and the exacerbation of apparently preexisting migraine headaches. Mold is a known allergen, so there is little controversy in regard to whether these symptoms could be caused by allergic reactions to mold.

The Brancati decision distinguishes Geffcken v. D’Andrea (2006) 137 Cal.App.4^th 1298, 1311, a decision from the same Court of Appeal, that upheld the exclusion of evidence that mold exposure caused plaintiff’s cancer. The easy lesson is that defendants should continue to challenge unsupported claims of serious injuries in regard to causation while fighting more mundane mold cases on other grounds.

In further distinguishing Geffcken, the Brancati court also noted that, in Geffcken, “test results to prove causation were unreliable,” “plaintiff’s theory was not supported by a single peer-reviewed scientific article,” “there was no forensic investigation,” and “chain of custody errors.” While this list may prove valuable to future defendants in attacking mold claims, it is notable that the appellate court that decided Brancati made some of these same errors.

The Brancati decision accepts, without any stated basis, the opinions of a mold testing company that there were “high” levels of mold in the plaintiff’s residence and that the types of mold found could be “toxic” when inhaled. Absent from the decision is any discussion of the qualifications of the testing company to give general medical advice, how the company conducted its investigation, preserved evidence or what constitutes a “high” level of an organism that is ubiquitous.

Worse, the decision states that the type of mold found in plaintiff’s residence “has killed animals” and been “linked to sudden infant death syndrome.” Not only is this dicta, as the Brancati case does not include claims for the death of animals or infants, the only supporting citation is a 20-year-old Pepperdine Law Review article, “Mold is Gold: But, Will it be the Next Asbestos?”.  While mold may or may not be “gold,” this is far from a peer-reviewed scientific article.

Finally, the Brancati decision notes that Simon is an allergist, and then states that he was qualified to testify about “natural toxic reactions.” No definitions are provided, and without recognizing the difference between toxic reactions and allergic reactions, the entire analysis of medical causation is without foundation. Stated simply, a toxic effect is the direct result of a toxin acting on cells. Anyone who ingests, inhales, or has dermal exposure to a toxin at a sufficient level will have adverse health effects. An allergic reaction occurs when the immune system overreacts to an otherwise harmless substance known as an allergen. Allergic responses occur when an allergen stimulates the body to release an excess of natural chemicals which in turn cause symptoms such as sneezing, rashes and watery eyes. Allergic reactions only occur in those that have been sensitized to the allergen. Toxic and allergic reactions are two separate physiological responses and by using the terms “toxic” and “allergy” interchangeably, the Brancati decision’s discussion of the underlying evidence is muddied, at best.

The Defense Perspective

The original wave of mold claims two decades ago was blunted in part by pointed attacks on plaintiffs’ experts and evidence. There are ample grounds to attack the results of indoor air and surface testing for mold. Because mold is truly ubiquitous, determining where an exposure to mold occurred and how long it lasted is next to impossible. These strategies are still viable notwithstanding the Brancati decision. Claims that mold exposure caused cancer, cognitive deficits, and other serious injuries are also still subject to attack.

The Brancati decision is no more than a statement as to why a physician could find that “nasal congestion, runny nose, coughing [and] sneezing” can be caused by mold. That is noncontroversial. But in reaching this conclusion, the court repeatedly refers to “toxic” mold without discussion of toxicity and how it differs from allergy (or irritation). On top of that, the decision states the type of mold found in plaintiff’s residence has “killed animals” and been “linked to sudden infant death syndrome.” The supporting citation is not to a scientific journal but a twenty year old law review article. But these hyperbolic statements are now in a published California appellate decision. The potential for misuse is obvious.