Calif. Jury Returns Defense Verdict in Mold Bodily Injury Trial; Plaintiff Viewing Cost Bill Following Loss

A Riverside County, California jury has returned a defense verdict in a closely watched case involving claims of bodily injury from exposure to mold in a single family home located in Menifee, California. Jury deliberations were less than 25 minutes according to trial lawyers Victoria Ersoff and Gregory Amundson with the law firm of Wood, Smith, Henning & Berman which represented the defendant developer and homebuilder.

Only the second case nationally to proceed to verdict against a homebuilder involving claims that mold in the home resulted in bodily injury, industry observers are reportedly buoyed by the verdict and what many believe is a developing trend of defeating this genre of claim.

Jurors during the 12 day trial of Bonnici v. Forecast, et al. (Riverside Superior Court case No. RIC361721) heard testimony from a family of four which complained of various bodily injuries allegedly stemming from exposure to mold in their tract home. Plaintiffs alleged injuries included epileptic seizures, tumor growth, endometriosis, depression, migraine headaches, Meniere’s Disease, gastrointestinal disorders, rhinitis, sinusitis together with a host of allergic symptomology.

Blaming the mold growth on water intrusion resulting from a failed pipe buried in the slab, in addition to chimney cap, window and roof leaks, the family of four relocated from the home during which time it went through extensive remediation and remodeling.

The defendant builder successfully argued that the plumbing, chimney, window and roof leaks were unrelated to the original construction of the home. Although the jury found that there were some construction issues in the house, they decided that they were not the cause of plaintiffs’ injuries and damages. They also reportedly found no evidence that the pipe was defective at the time it was installed by the builder.

Moreover, despite findings of elevated levels of stachybotrys, penicillium and aspergillus, the defense successfully excluded and otherwise limited testimony of plaintiff experts including the allergist, architectural/general contractor, industrial hygienist and neuropsychologist. Breaking the link in terms of causation between the alleged defect and microbial growth, on one hand, and the microbial growth and alleged injuries, on the other hand, were reportedly key in the jury analysis of the plaintiff claims.

Alternative causation for the health injuries alleged in Bonnici was also aggressively pursued by the defense. For example, the defense was reportedly able to establish by both treating physicians and testifying experts that one of the plaintiff’s excessive use of prescription drugs could cause all of the symptoms complained of in the litigation.

Plaintiffs’ settlement demand decreased with the passage of time, dropping eventually from $250,000 to $80,000 during trial. The nuisance cause of action was dismissed prior to the trial by the court, as well as the claims of the two minor children for inconvenience, loss of use and enjoyment of their property. Judge Tranbarger bifurcated the trial by severing the builder’s cross-complaint for indemnity against its concrete, framing and roofing subcontractors.

Prior to trial, Forecast made a statutory offer to compromise which was rejected by plaintiffs. In closing arguments, plaintiff attorney Andrew Weiss asked the jury to award plaintiffs $295,000 in damages. By virtue of the defense verdict, the builder is entitled to recover from plaintiffs its court costs and expert witness fees.

In terms of a national scorecard on mold bodily injury trials, this case is believed to be the 30th such case nationally to proceed to trial and verdict.

Of this number, 17 have been defense verdicts. Only two cases have proceeded to trial and verdict against homebuilders, both with victories for the defense.