In a recent unpublished decision in the matter of Wean v. U.S. Home Corporation, et al., the New Jersey Appellate Division affirmed a trial court’s dismissal of a mold lawsuit filed by plaintiff, allegedly arising out of the negligent construction of the plaintiff’s townhome. In doing so, the court explained and applied the principles of New Jersey law that govern when an expert’s testimony on proximate causation is sufficient to bring that issue before the jury. Also at issue in the appeal was whether the trial court erred by failing to hold a Rule 104 evidentiary hearing regarding the expert’s qualifications. The court noted that the challenge to the expert testimony was not that the testimony was a net opinion, but rather that it simply did not establish causation, and affirmed the trial court on this count as well.
Plaintiff purchased a townhome in late 2006. The defendant in the case was the builder and seller of that home. Prior to closing title, plaintiff noticed a leak in the basement of the townhome, which caused water damage in the basement. This was repaired by the defendant, and title was closed. There were several other leaks discovered in the days following closing, which the defendant also attempted to remedy. Further basement leaks were not complained of until about six months later, when a fifth leak was noticed in the property’s basement. In the interim, the upstairs dishwasher had leaked, causing some water seepage into a section of the finished basement.
In 2011, the plaintiff allegedly developed “rapidly progressive pulmonary deterioration,” and had a long-standing history of lung illness, including a forty year history of smoking. In 2012, plaintiff hired an expert to remediate the mold in the basement. After August of 2012, all parties stipulated that the building envelope of the townhome did not leak, nor did it contribute to the presence of mold. In an August 28, 2012 mold report, plaintiff’s expert noted that the basement area had a “normal indoor fungal ecology,” thus ending the alleged period of mold exposure.
Plaintiff filed suit against the defendant, alleging both property damage and personal injuries arising from her exposure to mold, which she claimed was due to the negligent or faulty construction of the defendant. To demonstrate defendant’s culpability for causing the mold, plaintiff retained a construction expert. In his first written report, the expert – Herbert Cannon, AIA – opined that the initial water intrusion at multiple locations, was the direct result of faulty construction by the defendant of the roof, exterior walls, and basement, “which directly caused the growth of mold.” However, during his deposition, Cannon could not opine “that any specific water infiltration event contributed to any specific mold growth in [plaintiff’s] house,” stating he had not seen “any documentation to that effect.” He further conceded that he could not opine that “any construction defect … found within [plaintiff’s] residence caused any specific mold growth within her home.”
At the close of discovery, the defendant moved for summary judgment, citing this testimony as an admission that the expert could not conclude that there was a cause and effect between any construction defects, and the water infiltration producing the mold at issue in the litigation. The plaintiff opposed, stating that they were relying on a cumulative theory of exposures, supported by four disparate experts. However, the trial court dismissed the case, finding that plaintiff had failed to “demonstrate that any of the alleged construction defects by [defendant] proximately caused the mold.”
On appeal, the Appellate Division agreed, finding that plaintiff had failed to demonstrate that any negligence of the defendant was a substantial factor in causing plaintiff’s purported mold-related illness. The court specifically rejected plaintiff’s attempted reliance on various cases arising from alleged asbestos exposure, which all focused on medical causation. The issue in this case was far simpler than that presented by claimed cumulative exposures in the asbestos litigation – but was simply whether the defendant’s defective construction caused water infiltration, which caused the presence of mold in plaintiff’s residence. Given that plaintiff’s own experts could not support this claim, the court dismissed the action.
For more information on this topic, or to discuss mold litigation and construction defect litigation more generally, please contact MKCI’s Tom Emala at firstname.lastname@example.org.