Kathy Pinna
“Mold Lurking Choking Toxic”
Warning: Reading this story might make you sick. Not as sick as Melinda Ballard and her family, who began coughing up blood and suffering memory loss while living in this 22-room, 11,000-square-foot mansion. But it could make your skin itch and your throat hurt, and you could start to cough. Then you will wonder whether there is toxic mold growing in your house, too, and whether you should pay someone a great deal of money to come find out.
That is the thing about toxic mold. Many of its symptoms are documented and real, but it can also be spread by suggestion and word of mouth. And lately, the slimy black growth, with names like Stachybotrys chartarum, Aspergillus and Penicillium seems to be everywhere — in stately homes and housing projects, courthouses and libraries, factories and schools. One California lawyer alone is handling mold complaints for 1,000 clients. A physician in Reno, Nev., has evaluated or treated more than a thousand patients suffering from toxic-mold exposure. And in Texas, where the warm, wet climate is a perfect breeding ground, mold claims appear to have more than doubled since last year — just the beginning of what is shaping up to be a very expensive epidemic.
Melinda Ballard’s house has become an emblem of the mold invasion. There is as much mold here as anyone has ever seen. The place is Exhibit A for lawyers, a how-not-to guide for homeowners, a business handbook for contractors and an ongoing nightmare for insurers. As we walk in through an unlocked side door (”Who would be stupid enough to come in and steal anything?” Ballard says) this dream home certainly looks like a nightmare: the House That Mold Ate.
Armies of inspectors have been through this house in the more than two years since Ballard, her husband, Ron Allison, and their son, Reese, now 5, left. The investigators cut square holes in nearly every wall, then removed the Sheetrock to reveal a coating of mold hiding on the other side. It is thick and black and gangrenous, with a dull, powdery sheen that makes it seem waiting and alive. Just looking at it makes you want to throw up. Each colonized square of Sheetrock has been sealed in plastic and tacked on the wall whence it came, for future reference. As a result, the house feels like a mad scientist’s lab, with plastic bags of mold wherever you turn — near the sweeping Tara staircase in the front hall, interrupting the hand-painted murals on the walls, next to a portrait of Ballard in regal jewels and finery, behind the Erector set in Reese’s bedroom. We stay for less than 10 minutes, but it is long enough. As we pull back down the endless driveway, my mouth feels dry, my throat aches and I am dizzy. Or maybe it’s all in my head.
Moldy homes have been around since biblical times. Mold may even explain many of the plagues, if you accept that the crops had to be brought in early to escape the hail and locusts, meaning wet grain was stored in stacks when the darkness came, creating perfect breeding grounds for mold. The pampered firstborn sons may have eaten the top layer, and the toxins in the moldy grain could have killed them. In Leviticus 14:33-45, the Lord tells Moses and Aaron how to rid a house of mold. First ask a priest to inspect it. Then scrape the inside walls and throw all contaminated materials in an unclean part of town. If that doesn’t work, the house ”must be torn down — its stones, timbers and all the plaster.”
”That’s exactly what we do today, except we skip the priest part,” says David C. Straus, who, as a professor of microbiology and immunology at Texas Tech University Health Sciences Center, is a 21st-century version of a mold priest. The molds that Straus and others try to exorcise are everywhere. There are thousands of varieties, found in every region of the country, including the wildly different climates of Alaska and Hawaii. Virtually every breath you take contains mold spores, and although some people are more allergic than others, for most of us this is not a problem.
Indoors, the drama begins when the spores encounter steady and significant amounts of water, commonly in the form of a roof leak or an unnoticed burst in a pipe. Add a cellulose-based material — the wallboards that modern homes are made of and older homes are renovated with turn out to be the perfect snack for multiplying mold — and things get worse. ”These organisms go, ‘Aha, I’m going to grow from a few spores on the surface to a colony that can be seen by the naked eye, containing hundreds of thousands or even millions of spores,’ ” says Linda D. Stetzenbach, director of the microbiology division of the Harry Reid Center for Environmental Studies at the University of Nevada in Las Vegas.
This in and of itself is not necessarily a problem, either. Most molds, even multiplying ones, are relatively harmless, and most people won’t have a strong reaction to them (unless they’re allergic). But there is mold, and there is mold. Exposure to certain types of fungi, known as toxic mold, can cause a serious reaction. If you’re unlucky, this is the kind of mold you have. If you’re really unlucky, your toxic mold will gird for battle and go to war, secreting chemicals called mycotoxins, which can find their way into your body, entering through your nose, mouth and skin, lodging perhaps in your digestive tract, your lungs or your brain. Among these toxins are trichothecenes, which were rumored to have been used as a biological weapon during the wars in Afghanistan and Vietnam. They turned out not to be very useful as weapons, however, because they poison slowly and erratically. That was small comfort to Ballard, however, when the stuff was found throughout her house.
Nor is she comforted by the fact that these molds are not really attacking humans. We simply get in their way. Their real targets are plants and other fungi that compete with them for water and food. ”They’re just doing what nature programmed them to do,” says Stetzenbach, sympathizing with the mold she studies. ”If they can keep other organisms from inhabiting their space, then they get all the nutrients.”
One of the first human soldiers in the mold wars was Bill Holder, who was trained as a mechanical, electrical and plumbing contractor and whose first encounters with mold were inside air-conditioning systems. Back in 1987 Holder received a frantic call from a former customer who owned a $55 million hotel that was rife with mold. As a favor, and because no one else seemed to know what to do, Holder gave it a try.
Within a few years mold was his specialty. He was certain that these micro-organisms were responsible for serious health problems because ”every time we were called to a building it was because people were getting sick.” But then, as now, he could find no irrefutable medical data to confirm his belief. In 1995 he sold his contracting business and eventually formed Assured Indoor Air Quality, a company created to tackle mold problems. One founding partner was a former school administrator, so the group began working on mold-infested schools, and has evaluated or cleaned out (the term of art is ”remediated”) more than 1,000 in the past six years.
Along the way Assured Indoor Air Quality awarded research grants to scientists, and one went to Straus at the Texas Tech University Health Sciences Center in Lubbock. On April 1, 1999, Holder was flying to a meeting there. The front rows of seats faced each other on Southwest Airlines, and a thin, no-nonsense businesswoman sat across from him, on her way to Arkansas for a meeting of her own. They got to talking during the flight, and the woman complained about the parade of contractors and inspectors marching in and out of her house. As she talked, she coughed, and her Kleenex showed chunks of blood.
”Excuse my asking,” Holder said, ”but have you by any chance had a leak in your house?”
The woman was Melinda Ballard, and yes, she had most certainly had a leak. ”You’re talking to Noah about the flood,” she told Holder, because that’s the way she talks. She also swears as easily as she speaks, has no patience for anyone who doesn’t work as hard as she does, will insult you to your face if she thinks you’re trying to ”bamboozle” her and was warned by one lawyer before her mold lawsuit went before the jury that she had to practice being a ”dutiful Southern belle” because men on the jury ”would be thinking, God, I would hate to be married to her.” (She fired that lawyer.)
Raised in wealth, Ballard made her own fortune in advertising and public relations in New York and moved to Dripping Springs in 1990. Fancying herself a cowgirl, she bought two cows named Jethro and Ellie Mae and lived with them and a herd of deer on 73 acres. In 1994 she married Ron Allison, an Austin investment adviser, who was as ambitious and hard-driving as she was. Their son, Reese, was born in 1996.
When Reese was 2, the house had a leak, which Ballard and Allison paid a plumber to repair. It seemed so inconsequential at the time that they did not even report it to their insurance company. A few months later the hardwood floors around the house began to warp and buckle. Ballard then filed a claim with Farmers Insurance Group. She and the company exchanged a number of letters on the subject of the floor, and one of those, to Theresa McConnell, a claims representative, read: ”Molds and mildew are trapped underneath the floor and will escape into the house once the foundation is exposed. I would like for every effort to be made to ensure that the molds/mildew do not ruin furniture, carpets, etc.”
This was the first mention of the word ”mold.” After much arguing over the cost of the repairs, Farmers paid Ballard well over $100,000 to fix a variety of things related to leaks. As Farmers wrote check after check, it also pursued ways to stop writing them. Asserting that Ballard was ”underinsured,” the company held some money back as a result. Ballard then accused Farmers of stalling because it did not want to reimburse the whole of such an expensive claim, an allegation the company denies.
Meanwhile, Reese Allison developed asthma. Melinda began having dizzy spells. The family visited a variety of doctors a total of about 50 times over a three-month period. Ron Allison had the strangest symptoms. He would forget simple things like where he’d left his credit card or where he’d parked his car, or even what kind of car he owned. His co-workers would find him at his desk looking as if he were in a trance.
But mold was not mentioned again until March 1999, when a Farmers investigator, who was in the house to inspect the source of damage to the kitchen floor, pulled back the refrigerator and revealed a wall that was shockingly slimy black. A month later, Ballard met Holder on the plane. ”I think I might know what’s causing your problems,” she remembers him saying, then he offered to provide her with a list of home contractors who might help.
Ballard did not want anyone else’s name. Holder was the first person she had met who seemed to know what was happening to her house and to her family, and she wanted him to help. He explained that his company worked only on schools and on commercial buildings. She went home and did some research. ”You’re remediating the governor’s mansion; that’s a house,” she told Holder by phone a few days later. The fact that Laura Bush was showing symptoms of mold sensitivity (Holder located the source in the air-conditioning system) was supposed to be a secret, but Ballard had connections and was not used to taking no for an answer.
Four days after their serendipitous plane ride, Holder visited Ballard in Dripping Springs. ”I looked in a few places I’ve learned to look,” he says — under an undisturbed board in the dining room, inside a crawl space beneath the stairs — and found more pockets of mold. Two days later, tests showed that mold to include Stachybotrys and Penicillium, and Holder advised further tests. In the meantime, Ballard and her family moved to a nanny’s apartment next to the garage.
The insurance company sent an investigator to collect its own air samples, and Ballard hired Holder, who brought along two other experts, including David Straus, to help conduct additional tests. Straus barely lasted 30 minutes. ”Walking into that house was one of the biggest mistakes I ever made,” he says. ”None of us were wearing any protection. I was standing on that Tara staircase, and all of a sudden I didn’t feel very good.” Straus spent the next four hours lying in Holder’s truck, crawling out only to vomit. He also lost 25 percent of the hearing in one ear, and the damage seems to be permanent.
”I don’t go into Stachy houses anymore,” he says, theorizing that his repeated exposure over the years has left him highly sensitive to toxic mold. ”I let the young people do that.”
On April 23 Holder called Ballard to report that there was airborne Stachybotrys, among other molds, in her house. Taking Holder’s advice to, she says, ”get the hell out of there,” the family abandoned their home and its contents within the hour. They left all their possessions — the couple’s wedding photos, Reese’s baby pictures, frayed stuffed animals and imported stuffed couches. Stopping at a nearby Wal-Mart, they bought new clothes and toiletries, then settled in for several months at the Four Seasons Hotel. (Farmers picked up the tab.)
The only thing they took from the house — a house she had expected to be ”my sanctuary” when she helped design it 15 years earlier — was a bottle of Scotch. ”I credit Cutty Sark with my escaping personal injury,” says Ballard, who refuses to wear a seat belt and hooks it over her shoulder when she drives in order to fool the cops.
Ballard jokes that ”her drinking kept her from getting as sick as the rest of the family.” Holder says that with the current lack of scientific evidence, this is as good a theory as any, adding, ”I believe she’s just too damn mean for those toxins to affect her.”
Standing outside unit 130 in the Spectrum condominium complex in Santa Ana, Calif., Alexander Robertson IV, the state’s busiest mold lawyer, hands me a disposable respirator mask. I’ve had practice at this by now, and I slip it on and pull the elastic tight. Robertson is quite a sight in his own mask — a towering man, with a shaved head and walrus mustache. The western boots peering out from under his well-cut suits are a hint that he would rather be roping and riding. Waiting for us in the tiny two-bedroom apartment are his client Noe Montoya, Montoya’s wife and newborn baby and his two elementary-school-age daughters. All but the infant have been sick for months, with nosebleeds and coughs, and there is black mold growing up the girls’ bedroom wall.
There are 1,500 residents of this complex, nearly all Hispanic, and all thought they had bought into the American homeowner’s dream. Montoya, who works as a waiter at a nearby chain restaurant, struggled to pay $75,000 for his condo two years ago. Then, about a year ago, mold began sprouting everywhere. Montoya cleans the mold from his daughters’ hot-pink wall every morning, but it is back within a day, growing through the Sheetrock from the other side. Unlike Melinda Ballard, who had the resources to eventually escape to a five-star hotel, Montoya is trapped. Everything he owns is invested in this apartment. He can’t afford to rent another place, and he cannot sell. Who would buy a condo full of mold?
Robertson is keenly aware of how he looks, standing there wearing a mask, while the family stands barefaced and unprotected. ”It’s a real dilemma,” he says. ”But I go into these buildings for a living, and I decided that I need to protect my own health.”
We walk from one apartment to the next, and Robertson points out mold wherever we go. Pulling aside bathroom tiles and peering behind stationary concrete planters, he says things like ”There’s water leaking through the joists in the drywall” and ”We have a series of pinhole leaks in the potable water lines,” which make him sound like the building contractor he was before he went to law school.
When he graduated he started a construction law firm, expecting to handle mostly faulty construction and product-liability cases. Then, in 1994, he was contacted by a couple in Malibu who had a leak. Water had become trapped beneath the layers of their improperly tiled roof and had drawn mold into the house. The couple suffered from mysterious rashes, and the wife was taken to the emergency room more than once, gasping for breath.
Robertson, who knew a lot about joists and drywall but nothing about rashes, went on the Internet, where he learned that science did not know much, either. Then, as now, there was no definitive epidemiological study proving that mold makes people sick. And then, as now, there was no simple blood test or the equivalent to measure mold exposure. But there were enough scientists who suspected a link and enough doctors who were certain they’d seen illness caused by toxic mold that Robertson sensed he had a dynamite case.
This most recent history of mold began in the early 1990’s, in a museum down in SoHo. Employees began falling ill at work with symptoms ranging from rashes to extreme fatigue to memory loss, and they came to see Dr. Eckardt Johanning, an occupational and environmental doctor at Mount Sinai Medical Center. At that time, ”occ-docs” like Johanning specialized in other dangers of the workplace, like carpal tunnel syndrome and asbestos poisoning. Stumped, Johanning inspected the museum offices and found mold that, when cultured, was determined to be ”something called Stachybotrys,” says Johanning, who at the time had never heard of the mold. (Since then he has compiled a 675-page tome called ”Bioaerosols, Fungi and Mycotoxins: Health Effects, Assessment, Prevention and Control.”)
Johanning searched the medical literature and found spotty research. There were allegations that toxic mold has been used in warfare and descriptions of animal poisonings, where mycotoxins in feed went on to kill large numbers of cattle in Russia and Finland. ”We know from laboratory animals,” explains Stetzenbach, ”when there’s forced inhalation of Stachy into mice, and then the mice are sacrificed and we look at the lung tissue, we see damage. But we can’t force humans to inhale toxins.”
In fact, one of the few controlled human studies inspired more debate than answers. In the fall of 1994, Dr. Dorr Dearborn, a pediatric pulmonologist at Cleveland’s Rainbow Babies and Children’s Hospital, began seeing too many cases of babies with bleeding in their lungs. As the total reached 8 and eventually 10, Dearborn called the Centers for Disease Control and Prevention, which sent an investigation team. The team’s leader, Dr. Ruth Etzel, designed a study matching each sick infant with three control infants who were the same age and lived in the same neighborhood. It turned out that most of the affected babies lived in homes with water damage and mold where tobacco smoke was often present. Among the molds found was Stachy, and the C.D.C. declared a possible link between mold, tobacco smoke and ”acute ideopathic pulmonary hemorrhage” (A.I.P.H.). The study was published in a respected, peer-reviewed journal.
These conclusions caused some government agencies to take action. The health and housing departments of Cleveland and Cayahoga County offers free home inspections to new mothers living in the part of town where the initial cases were clustered. The United States Department of Housing and Urban Development has put resources into mold research, too, spending $3.17 million on an effort to remove mold from the homes of infants at risk for A.I.P.H. and of asthmatic children. In addition, the American Academy of Pediatrics has warned that ”until more is known about the etiology of idiopathic pulmonary hemorrhage, prudence dictates that pediatricians try to ensure that infants under 1 year of age are not exposed to chronically moldy, water-damaged environments.”
Since the Cleveland study was first released, other doctors have become convinced that there are mold risks to adults as well. ”We do know for a fact that mold is associated with cognitive impairment in some people,” says Dr. Wayne Gordon, a neuropsychologist and professor of rehabilitation medicine at the Mount Sinai School of Medicine in Manhattan, and one of a small but growing group of scientists who have come to specialize in the health effects of mycotoxins. These doctors cannot yet say definitively how these toxins work and why they affect some people more than others. But they do know that victims of the toxins visit their offices every day, more this year than last year and that their problems range from minor memory loss to devastating cognitive failure. ”This is real,” he says, ”and it isn’t going away.”
In March of last year, however, the C.D.C. backed away from its initial study. In a 97-page examination of the case, two panels of reviewers gathered by the agency criticized everything from the way the babies’ illness was diagnosed to the way the mold was measured. ”The available evidence,” the reviewers concluded, ”does not substantiate the reported epidemiologic associations — between household water damage and A.I.P.H. or between household fungi and A.I.P.H. — or any inferences regarding causality.”
In other words, one report by the C.D.C. recants another report by the C.D.C. The agency now describes mold as an ”allergen” on its Web site, but makes little mention of the serious problems that researchers like Dearborn, Etzel and Gordon say are associated with mold. Nor does it mention that their findings have been replicated by other scientists. And while the agency advises that mold be cleaned up, it does not recommend testing to discover what type of mold is growing. ”We are not saying there are no health consequences to mold,” says Dr. Stephen Redd, chief of the air-pollution-and-respiratory-health branch at the C.D.C. ”There’s a diversity of opinion. Our opinion is that not enough is known about it.” The agency does not doubt that people are suffering, he says, but the C.D.C. is lacking scientific proof of the extent to which mold is the cause. To declare causation without that proof, he says, would be as irresponsible as waiting too long.
Dearborn and Etzel disagree and stand by their study. The C.D.C. rebuttal ”put the message out there that there was nothing to worry about,” Dearborn says. ”They didn’t take the prudent health position that until there is definitive evidence, we will take precautions. A legal standard of proof is 51 percent. A scientific standard of proof is greater than 95 percent. But where does public health prudence fall between the two?”
While scientists argue over mold, lawyers have been having a field day. Like the fungus itself, mold litigation has completely taken over Robertson’s practice in the years since the Malibu claim. ”The case settled very shortly, once we demonstrated what this stuff was,” Robertson says. The whole of the house was shrink-wrapped in plastic, torn down, then carted away and buried.
Today, callers to his voice mail are instructed that all new toxic-mold cases are being screened by the firm’s new director of microbiological investigations, a paralegal with a master’s degree in microbiology. At last count, she had a list of 325 potential new clients on deck, and Robertson has stopped representing individual homeowners in favor of cases that ”really prove a point.” On his plate at the moment are five courthouses where everyone from the judges to the bailiffs complain that they have become sick, and housing projects like the Spectrum, which, he says ”should have been the American dream, but has become a nightmare.”
(Robertson, too, makes some exceptions to his ”no private homes” rule. His star client right now is Erin Brockovich, whose two-story, 4,000-square-foot house outside Los Angeles — bought with the money from the movie about her environmental crusades — is contaminated with mold. There is a huge poster in Robertson’s office of Julia Roberts as Erin Brockovich, signed by the real Erin. ”To Alex, What a ‘bulldog’ you are,” it says, then asks, ”Gee, could a ‘mold’ movie be next?”)
Robertson says he believes he is in on the start of an entirely new area of law. ”It’s a hybrid,” he says, ”that’s why people have a hard time getting their arms around it. It’s part construction defect, because that’s what allows the water to get into the building. And it’s part personal injury, and very few lawyers do both.” Robertson himself had not handled a personal injury case until 1994, ”when I realized, Hey, we can’t just treat the building, we’ve got to treat some people in the building as well.”
Industry watchers agree. Mealey’s Publications, which puts out monthly legal reports, just added Mealey’s Litigation Report: Mold to its title list. ”Mold litigation isn’t going to go away any time soon,” says Colleen McLaughlin, the report’s editor. ”The attorneys involved are cutting edge, the type who are always looking for the next big thing.”
What looks like Genesis to lawyers looks like Armageddon to insurance companies. ”This mold problem seemed to come out of nowhere,” says Janet Bachman, vice-president of claims administration for the American Insurance Association. The Ballard case became front-page news in Texas and spurred many other mold claims. In the state, Bachman says, there has been a 137 percent increase so far this year in the amount paid out by insurance companies for water damage. (Insurance policies do not cover mold, per se; they cover damage that results from an otherwise covered event, like a leak or burst pipe.)
If that trend continues through the end of 2001, Texas insurers will be spending roughly $670 million on water claims. (That does not count damage from the Houston floods last June; while they will cause mold damage, the floods themselves are not covered events, meaning the resulting damage is not reimbursed by insurance.) Some in the insurance industry say that premiums will have to increase by 40 percent in order to offset mold claims.
Insurers are hoping, Bachman says, that this will turn out to be a short-term scare, a crisis of the moment, and that soon a fickle public will start worrying about something else. ”For a while the hysteria was over radon,” she says. ”And now it’s so obvious that nobody gives a damn. Remember the Alar scare? Now that’s a big shrug, too. Maybe this is just 15 minutes of fame for the latest boo-boo.”
Just in case it doesn’t disappear, however, some insurers are taking concrete steps. Farmers Insurance, for instance, has said that it will stop selling new homeowner’s policies that include water-damage coverage. In addition, it has asked the Texas Department of Insurance to allow the company to exclude mold damage from its policies entirely, even mold that results from a covered event.
State governments, in an effort to protect homeowners, are beginning to act, too. California’s Senate recently approved the Toxic Mold Protection Act, which orders the State Department of Health Services to establish licensing standards for professionals who go into the business of measuring and cleaning out toxic mold. ”Right now anyone can advertise in the Yellow Pages and call themselves a mold expert,” says Robertson, who helped draft the legislation, and who refers to opportunists as ”mold diggers.”
Whenever Robertson gives a lecture before an industry group, he says, ”I ask for a hand count at the beginning to find out who’s in the audience, and 90 percent are contractors who were all doing lead and asbestos abatement until the last year, and now they’re trying to jump on the mold bandwagon. It frightens me because you’ve got people that are taking a two-day course, and then they’re turning around as quote-unquote experts.”
The California bill also urges the health department to establish permissible exposure limits: how much mold is too much? Exactly what level of spores per cubic meter of air is enough to make us sick? It may be an impossible task, because the same level of mold seems to affect every individual differently. That would explain, among other things, why Ballard’s husband is still so sick but Ballard herself is not.
”We don’t always see the same health reaction every time,” Johanning says. ”I’ve seen marriages go down because people are not equally affected by it and one spouse thinks the other is imagining things.”
Ron Allison sits in the overdecorated living room of the rented house that his family has been living in, staring straight ahead. The furnishings around him are a swirl of burgundy and green, yellow and red, but he is a study in white and beige. His expression is as bland and subdued as his clothing, as he tries, quietly and haltingly, to explain who he used to be and who he is today.
Back when he was an investment adviser, he says: ”I did three to four deals at a time, I kept all these balls in the air. If I dialed your phone number once, I would have remembered it.” But in the months before the mold was finally discovered in his Dripping Springs home, his memory began to go. ”My problem is with input,” he says, trying to explain what his doctors have since explained to him. ”I can concentrate on one thing for a while, but if you add a second thing, then the input makes me short-circuit.” By way of example, his wife says, ”He can talk on the phone, but if you hand him a piece of paper while he’s talking, his brain just fries.”
Allison was asked to quit his job nearly two years ago, according to Ballard, and has been going to cognitive therapy sessions four times a week. ”He’s not worse, but he’s not better,” she says of her husband’s progress. ”I guess we have to give it time.” When not at therapy, he works at keeping his life simple. ”You can arrange your day to avoid feeling like an idiot,” he says. ”Sitting here and watching ‘Oprah,’ you’re not going to feel like an idiot, but I aimed a little higher than that in my life. I’m going to remember only a small percentage of this conversation, but I still remember my old life, and I want it back.”
He worries about what his son, Reese, will think of him. ”He knows that I used to go to work in the morning and now I don’t,” he says. ”He understands that the house made my brain sick. You want to be the absolute best role model for your kids. I’m not the best. I’m far less. I’m the best I can be now, but less than I was.”
Ballard worries about other things. ”Do you leave him?” she asks me later, explaining that Allison is now more like her child than her husband. ”How can I leave him? He can’t take care of himself. The worst day of our lives is still to come,” she continues. ”The worst day will be if we finally get that money, and he’ll want to manage it.”
That money is the $32 million she was awarded by a Texas jury in June, the result of her lawsuit against Farmers Insurance. It is by far the largest judgment against an insurance company in a mold case. Before the trial even began, Farmers had sent Ballard checks for nearly $1.4 million, first to repair and then to remediate the house. But Ballard charged that this did not account for the reality of toxic mold — mold that was given free rein, she says, while the company tried to find a way not to pay the whole of the hefty claim. All her possessions needed to be replaced, her lawsuit said, and according to experts like Holder and Straus, the house could not just be cleaned, it had to be destroyed and rebuilt.
Although Flynn, the Farmers spokesperson, says the company ”handled this claim promptly and vigorously and would do it the same way again,” the jury agreed with Ballard, and granted her approximately $6 million for the house and its contents, $12 million in punitive damages against Farmers, $5 million for emotional distress and nearly $9 million in attorneys’ fees. Flynn, of Farmers, says the verdict (which the judge has sent to mediation) threatens not only the company but also the entire industry.
”As a practical matter she has almost single-handedly caused, well, not an hysteria, but a heightened interest in mold,” Flynn says, choosing her words carefully. ”In the year or more since the start of this case, we are seeing claims for mold in and of itself. People are filing claims from a fire that happened a year ago saying that mold arose from the fire-suppression activity. They are about to go to mediation on a claim for a cracked foundation, and we get a letter a week before saying, ‘by the way there’s mold in the house and we have to tear it down.’ ”
Until this case, she says: ”we didn’t have any designation or coding for a mold claim. That was an animal that just didn’t exist. Mold was a byproduct. It was never viewed as a separate loss.”
As alarmed as the company is by the judgment, Farmers is relieved that the jury was only allowed to hear evidence about material damage to the house. Ballard’s suit also claimed health damage to her husband, but the judge disallowed all medical evidence, saying that there was not sufficient epidemiological research directly linking health problems to mold.
”Suppressing the medical testimony was extremely important to us,” Flynn says. ”This is a property insurance policy,” she explains. ”This is a policy that takes care of physical damage to the house. This is not a medical policy. It is not a type of policy ever intended to pay for a person’s physical injuries while living in their homes. If they develop a health problem, it should be covered by medical insurance.
”On a second level,” she continues, ”there was the inference that somehow we did something that made the family sick. That we should have said: ‘Oh, you had a water leak a year ago and that leak might result in mold. It could be toxic mold, and that could be injurious to your health so you’d better leave your house now.’ We didn’t have that kind of knowledge.”
Ballard responded to the verdict by spending some of her expected payment to gather the sort of scientific evidence the judge and Farmers say does not yet exist. Over this summer she plans to assemble some of the leading experts in the field, who, between them, have seen hundreds of patients suffering ”mold poisoning.” She says she will ”lock them all in a conference room somewhere and ask them to compile a complete database, a profile of what we know.” She has plans to invite representatives from the C.D.C., because, she says: ”You have to keep your enemies close. If those S.O.B.’s are in from the beginning, they can’t complain about our accuracy at the end.”
Out in California, where evidence rules are less stringent than in Texas, Alexander Robertson, too, is looking for future epidemiological data. His ”laboratory” is the Spectrum condominium complex, and he has contracted with an ”occ-doc” from the Harvard Medical School to do a biostatistical study of every occupant. All 1,500 residents will be asked about their symptoms, and their apartments will be tested to establish the presence and quantity of mold. The residents of a control apartment complex will be similarly studied. ”If we show that the Spectrum building has a higher percentage of people reporting the same or similar symptoms, we go a long way to silencing those who argue mold can’t be the cause,” he says.
On my way back from Melinda Ballard’s contaminated house, I stop at a highway gas station and change my clothes in the restroom. I kick myself for not wearing long sleeves, long pants and combat boots when I went into the house, and wrap what I did wear — shorts, T-shirt and flip flops — in a double plastic bag and throw it in a nearby Dumpster so that the mold spores that might have settled on my clothing won’t contaminate everything else I own. I debate whether to go straight back to my hotel to take a shower but decide that I don’t want to add water to the spores that might be in my hair. I’d rather kill them first by spending time outside in the ultraviolet light.
David Straus says this is not overreacting. Bill Holder says it probably is. Melinda Ballard, who suggested these precautions in the first place, has become fed up with doing this herself and now saves one ratty outfit for visiting her old home. Such is the murky level of knowledge at the moment about the dos and don’ts of toxic mold.
Dressed in fresh, uncontaminated clothes, with hair of questionable cleanliness, I go on to spend the evening at the home of an Austin friend. We sit in her living room and talk with her new neighbors, Bridget and Ted Karam, who are renting a house for several months while their 4,700-square-foot dream home across the highway is inhabited by men in moon suits. The house has leaked in the rain since it was built in 1993, the Karams say, but it wasn’t until they read about the Ballard case that they thought to look for mold. ”We realized my daughter was waking up with sore throats every time she slept in her room,” Bridget Karam says.
The couple paid $2,800 to learn that there was Stachybotrys and penicillium in their home. It will take nearly six months and cost $140,000 to clear it out. Listening to their story, my throat starts to hurt. So does my friend’s. ”My kids wake up with sore throats all the time,” she says, looking around her pristine living room, which suddenly smells a little musty. ”Maybe I should call someone to test us?”
Medical students develop symptoms of one disease after another as they go through their textbooks. Called somatization, it is a testament to ”the power of suggestion,” says Bachman of the American Insurance Association, which clearly has a stake in believing this is all in our heads. ”When I was in college, I took a psych course, and within nanoseconds after reading a list of symptoms I diagnosed myself as being crazy as a bedbug. I’m thinking that people are going through the same thing with mold. Mold has always been around, it will always be around. Why is everyone going so crazy about it right now?”
Nowhere are people going crazier than in Austin, where the Austin Independent School District closed the Hill Elementary School for the past 18 months and closed off sections of another school because of mold. Now there is a wait of months for most contractors who screen for mold, and homeowners are hiring testers from Dallas and Houston, paying their travel expenses.
All this raises some obvious questions: Is there more toxic mold than ever before? Is all the new construction, using cheaper, mold-friendly material causing a true invasion or are we just paying more attention? Is this a new asbestos — a new and measurable danger? Or a new Legionnaire’s disease — a threat that has existed and been unrecognized for generations? Or, perhaps a new chronic fatigue syndrome — a disease that definitely affects some people while playing mind games with many more? Do we really need to clean it up, or is it just that ”mold is gold,” as contractors say, and there is money to be made from homeowners’ fears.
These are questions that Ted Karam does not feel he has the luxury of pondering. ”I don’t know how much is hysteria,” he says. ”But I can’t take any chances. If you find it, you have to do something.”
The something varies, however, because no one seems to agree on the right thing to do. The Karams, for instance, lived in their home for more than six months after the mold was found. ”But we kept running into other people with mold, and they had been told to move out,” Bridget Karam says, so eventually they did, too. And although they have read that Ballard left all her belongings in her house, they could not bring themselves to do the same. They let their daughters sneak back in to rescue a few favorite outfits along with their yearbooks and some angel figurines. Bridget, who is a professional photographer, took all her negatives. ”I can’t bear to lose any of my memories,” she says.
Tracy and Steve Wehmeyer, in contrast, who live across town from the Karams, began making plans to leave their home and most of their belongings within days of getting their results. No one in the family had been terribly sick before Stachybotrys was discovered in their walls, but they aren’t feeling too well right now. ”Every time I can’t remember something, I wonder, Is it mold or is it wine or is it age?” Tracy Wehmeyer says, half-joking. Then she turns pensive. ”You think of your house as the safest place you can be. Then to learn it is hurting you and your family. . . . ” She doesn’t finish the sentence.
So far only one family in the Austin area has burned down their home. Ballard says she has considered it, but was warned that the wind and smoke would simply spread the mold. Her neighbor is already suing her for $1 million, saying that the very existence of the Ballard house has lowered area property values. The Karams fear a financial toll, too. Before the mold was found, their house was appraised at $2.3 million. Because of the history of mold, however, their bank’s appraiser warns that it will be worth 30 percent less.
Ballard says she will wait until the case is completely closed before she touches her Dripping Springs home. Then, when the house is no longer evidence, she will have it cut apart — walls, beams, furniture, appliances, hardwood floors and all — and shrouded piece by piece in double-wrapped plastic before being buried in a landfill.
She has other plans too. She has announced her candidacy as a representative from the 46th District, and her hope is to sit on the insurance committee. ”Nearly everyone hates their insurance company,” she says. ”What a platform.”
- New York Times, February 20, 2013, by Lisa Belkin, a contributing writer for the magazine.
That is the thing about toxic mold. Many of its symptoms are documented and real, but it can also be spread by suggestion and word of mouth. And lately, the slimy black growth, with names like Stachybotrys chartarum, Aspergillus and Penicillium seems to be everywhere — in stately homes and housing projects, courthouses and libraries, factories and schools. One California lawyer alone is handling mold complaints for 1,000 clients. A physician in Reno, Nev., has evaluated or treated more than a thousand patients suffering from toxic-mold exposure. And in Texas, where the warm, wet climate is a perfect breeding ground, mold claims appear to have more than doubled since last year — just the beginning of what is shaping up to be a very expensive epidemic.
Melinda Ballard’s house has become an emblem of the mold invasion. There is as much mold here as anyone has ever seen. The place is Exhibit A for lawyers, a how-not-to guide for homeowners, a business handbook for contractors and an ongoing nightmare for insurers. As we walk in through an unlocked side door (”Who would be stupid enough to come in and steal anything?” Ballard says) this dream home certainly looks like a nightmare: the House That Mold Ate.
Armies of inspectors have been through this house in the more than two years since Ballard, her husband, Ron Allison, and their son, Reese, now 5, left. The investigators cut square holes in nearly every wall, then removed the Sheetrock to reveal a coating of mold hiding on the other side. It is thick and black and gangrenous, with a dull, powdery sheen that makes it seem waiting and alive. Just looking at it makes you want to throw up. Each colonized square of Sheetrock has been sealed in plastic and tacked on the wall whence it came, for future reference. As a result, the house feels like a mad scientist’s lab, with plastic bags of mold wherever you turn — near the sweeping Tara staircase in the front hall, interrupting the hand-painted murals on the walls, next to a portrait of Ballard in regal jewels and finery, behind the Erector set in Reese’s bedroom. We stay for less than 10 minutes, but it is long enough. As we pull back down the endless driveway, my mouth feels dry, my throat aches and I am dizzy. Or maybe it’s all in my head.
Moldy homes have been around since biblical times. Mold may even explain many of the plagues, if you accept that the crops had to be brought in early to escape the hail and locusts, meaning wet grain was stored in stacks when the darkness came, creating perfect breeding grounds for mold. The pampered firstborn sons may have eaten the top layer, and the toxins in the moldy grain could have killed them. In Leviticus 14:33-45, the Lord tells Moses and Aaron how to rid a house of mold. First ask a priest to inspect it. Then scrape the inside walls and throw all contaminated materials in an unclean part of town. If that doesn’t work, the house ”must be torn down — its stones, timbers and all the plaster.”
”That’s exactly what we do today, except we skip the priest part,” says David C. Straus, who, as a professor of microbiology and immunology at Texas Tech University Health Sciences Center, is a 21st-century version of a mold priest. The molds that Straus and others try to exorcise are everywhere. There are thousands of varieties, found in every region of the country, including the wildly different climates of Alaska and Hawaii. Virtually every breath you take contains mold spores, and although some people are more allergic than others, for most of us this is not a problem.
Indoors, the drama begins when the spores encounter steady and significant amounts of water, commonly in the form of a roof leak or an unnoticed burst in a pipe. Add a cellulose-based material — the wallboards that modern homes are made of and older homes are renovated with turn out to be the perfect snack for multiplying mold — and things get worse. ”These organisms go, ‘Aha, I’m going to grow from a few spores on the surface to a colony that can be seen by the naked eye, containing hundreds of thousands or even millions of spores,’ ” says Linda D. Stetzenbach, director of the microbiology division of the Harry Reid Center for Environmental Studies at the University of Nevada in Las Vegas.
This in and of itself is not necessarily a problem, either. Most molds, even multiplying ones, are relatively harmless, and most people won’t have a strong reaction to them (unless they’re allergic). But there is mold, and there is mold. Exposure to certain types of fungi, known as toxic mold, can cause a serious reaction. If you’re unlucky, this is the kind of mold you have. If you’re really unlucky, your toxic mold will gird for battle and go to war, secreting chemicals called mycotoxins, which can find their way into your body, entering through your nose, mouth and skin, lodging perhaps in your digestive tract, your lungs or your brain. Among these toxins are trichothecenes, which were rumored to have been used as a biological weapon during the wars in Afghanistan and Vietnam. They turned out not to be very useful as weapons, however, because they poison slowly and erratically. That was small comfort to Ballard, however, when the stuff was found throughout her house.
Nor is she comforted by the fact that these molds are not really attacking humans. We simply get in their way. Their real targets are plants and other fungi that compete with them for water and food. ”They’re just doing what nature programmed them to do,” says Stetzenbach, sympathizing with the mold she studies. ”If they can keep other organisms from inhabiting their space, then they get all the nutrients.”
One of the first human soldiers in the mold wars was Bill Holder, who was trained as a mechanical, electrical and plumbing contractor and whose first encounters with mold were inside air-conditioning systems. Back in 1987 Holder received a frantic call from a former customer who owned a $55 million hotel that was rife with mold. As a favor, and because no one else seemed to know what to do, Holder gave it a try.
Within a few years mold was his specialty. He was certain that these micro-organisms were responsible for serious health problems because ”every time we were called to a building it was because people were getting sick.” But then, as now, he could find no irrefutable medical data to confirm his belief. In 1995 he sold his contracting business and eventually formed Assured Indoor Air Quality, a company created to tackle mold problems. One founding partner was a former school administrator, so the group began working on mold-infested schools, and has evaluated or cleaned out (the term of art is ”remediated”) more than 1,000 in the past six years.
Along the way Assured Indoor Air Quality awarded research grants to scientists, and one went to Straus at the Texas Tech University Health Sciences Center in Lubbock. On April 1, 1999, Holder was flying to a meeting there. The front rows of seats faced each other on Southwest Airlines, and a thin, no-nonsense businesswoman sat across from him, on her way to Arkansas for a meeting of her own. They got to talking during the flight, and the woman complained about the parade of contractors and inspectors marching in and out of her house. As she talked, she coughed, and her Kleenex showed chunks of blood.
”Excuse my asking,” Holder said, ”but have you by any chance had a leak in your house?”
The woman was Melinda Ballard, and yes, she had most certainly had a leak. ”You’re talking to Noah about the flood,” she told Holder, because that’s the way she talks. She also swears as easily as she speaks, has no patience for anyone who doesn’t work as hard as she does, will insult you to your face if she thinks you’re trying to ”bamboozle” her and was warned by one lawyer before her mold lawsuit went before the jury that she had to practice being a ”dutiful Southern belle” because men on the jury ”would be thinking, God, I would hate to be married to her.” (She fired that lawyer.)
Raised in wealth, Ballard made her own fortune in advertising and public relations in New York and moved to Dripping Springs in 1990. Fancying herself a cowgirl, she bought two cows named Jethro and Ellie Mae and lived with them and a herd of deer on 73 acres. In 1994 she married Ron Allison, an Austin investment adviser, who was as ambitious and hard-driving as she was. Their son, Reese, was born in 1996.
When Reese was 2, the house had a leak, which Ballard and Allison paid a plumber to repair. It seemed so inconsequential at the time that they did not even report it to their insurance company. A few months later the hardwood floors around the house began to warp and buckle. Ballard then filed a claim with Farmers Insurance Group. She and the company exchanged a number of letters on the subject of the floor, and one of those, to Theresa McConnell, a claims representative, read: ”Molds and mildew are trapped underneath the floor and will escape into the house once the foundation is exposed. I would like for every effort to be made to ensure that the molds/mildew do not ruin furniture, carpets, etc.”
This was the first mention of the word ”mold.” After much arguing over the cost of the repairs, Farmers paid Ballard well over $100,000 to fix a variety of things related to leaks. As Farmers wrote check after check, it also pursued ways to stop writing them. Asserting that Ballard was ”underinsured,” the company held some money back as a result. Ballard then accused Farmers of stalling because it did not want to reimburse the whole of such an expensive claim, an allegation the company denies.
Meanwhile, Reese Allison developed asthma. Melinda began having dizzy spells. The family visited a variety of doctors a total of about 50 times over a three-month period. Ron Allison had the strangest symptoms. He would forget simple things like where he’d left his credit card or where he’d parked his car, or even what kind of car he owned. His co-workers would find him at his desk looking as if he were in a trance.
But mold was not mentioned again until March 1999, when a Farmers investigator, who was in the house to inspect the source of damage to the kitchen floor, pulled back the refrigerator and revealed a wall that was shockingly slimy black. A month later, Ballard met Holder on the plane. ”I think I might know what’s causing your problems,” she remembers him saying, then he offered to provide her with a list of home contractors who might help.
Ballard did not want anyone else’s name. Holder was the first person she had met who seemed to know what was happening to her house and to her family, and she wanted him to help. He explained that his company worked only on schools and on commercial buildings. She went home and did some research. ”You’re remediating the governor’s mansion; that’s a house,” she told Holder by phone a few days later. The fact that Laura Bush was showing symptoms of mold sensitivity (Holder located the source in the air-conditioning system) was supposed to be a secret, but Ballard had connections and was not used to taking no for an answer.
Four days after their serendipitous plane ride, Holder visited Ballard in Dripping Springs. ”I looked in a few places I’ve learned to look,” he says — under an undisturbed board in the dining room, inside a crawl space beneath the stairs — and found more pockets of mold. Two days later, tests showed that mold to include Stachybotrys and Penicillium, and Holder advised further tests. In the meantime, Ballard and her family moved to a nanny’s apartment next to the garage.
The insurance company sent an investigator to collect its own air samples, and Ballard hired Holder, who brought along two other experts, including David Straus, to help conduct additional tests. Straus barely lasted 30 minutes. ”Walking into that house was one of the biggest mistakes I ever made,” he says. ”None of us were wearing any protection. I was standing on that Tara staircase, and all of a sudden I didn’t feel very good.” Straus spent the next four hours lying in Holder’s truck, crawling out only to vomit. He also lost 25 percent of the hearing in one ear, and the damage seems to be permanent.
”I don’t go into Stachy houses anymore,” he says, theorizing that his repeated exposure over the years has left him highly sensitive to toxic mold. ”I let the young people do that.”
On April 23 Holder called Ballard to report that there was airborne Stachybotrys, among other molds, in her house. Taking Holder’s advice to, she says, ”get the hell out of there,” the family abandoned their home and its contents within the hour. They left all their possessions — the couple’s wedding photos, Reese’s baby pictures, frayed stuffed animals and imported stuffed couches. Stopping at a nearby Wal-Mart, they bought new clothes and toiletries, then settled in for several months at the Four Seasons Hotel. (Farmers picked up the tab.)
The only thing they took from the house — a house she had expected to be ”my sanctuary” when she helped design it 15 years earlier — was a bottle of Scotch. ”I credit Cutty Sark with my escaping personal injury,” says Ballard, who refuses to wear a seat belt and hooks it over her shoulder when she drives in order to fool the cops.
Ballard jokes that ”her drinking kept her from getting as sick as the rest of the family.” Holder says that with the current lack of scientific evidence, this is as good a theory as any, adding, ”I believe she’s just too damn mean for those toxins to affect her.”
Standing outside unit 130 in the Spectrum condominium complex in Santa Ana, Calif., Alexander Robertson IV, the state’s busiest mold lawyer, hands me a disposable respirator mask. I’ve had practice at this by now, and I slip it on and pull the elastic tight. Robertson is quite a sight in his own mask — a towering man, with a shaved head and walrus mustache. The western boots peering out from under his well-cut suits are a hint that he would rather be roping and riding. Waiting for us in the tiny two-bedroom apartment are his client Noe Montoya, Montoya’s wife and newborn baby and his two elementary-school-age daughters. All but the infant have been sick for months, with nosebleeds and coughs, and there is black mold growing up the girls’ bedroom wall.
There are 1,500 residents of this complex, nearly all Hispanic, and all thought they had bought into the American homeowner’s dream. Montoya, who works as a waiter at a nearby chain restaurant, struggled to pay $75,000 for his condo two years ago. Then, about a year ago, mold began sprouting everywhere. Montoya cleans the mold from his daughters’ hot-pink wall every morning, but it is back within a day, growing through the Sheetrock from the other side. Unlike Melinda Ballard, who had the resources to eventually escape to a five-star hotel, Montoya is trapped. Everything he owns is invested in this apartment. He can’t afford to rent another place, and he cannot sell. Who would buy a condo full of mold?
Robertson is keenly aware of how he looks, standing there wearing a mask, while the family stands barefaced and unprotected. ”It’s a real dilemma,” he says. ”But I go into these buildings for a living, and I decided that I need to protect my own health.”
We walk from one apartment to the next, and Robertson points out mold wherever we go. Pulling aside bathroom tiles and peering behind stationary concrete planters, he says things like ”There’s water leaking through the joists in the drywall” and ”We have a series of pinhole leaks in the potable water lines,” which make him sound like the building contractor he was before he went to law school.
When he graduated he started a construction law firm, expecting to handle mostly faulty construction and product-liability cases. Then, in 1994, he was contacted by a couple in Malibu who had a leak. Water had become trapped beneath the layers of their improperly tiled roof and had drawn mold into the house. The couple suffered from mysterious rashes, and the wife was taken to the emergency room more than once, gasping for breath.
Robertson, who knew a lot about joists and drywall but nothing about rashes, went on the Internet, where he learned that science did not know much, either. Then, as now, there was no definitive epidemiological study proving that mold makes people sick. And then, as now, there was no simple blood test or the equivalent to measure mold exposure. But there were enough scientists who suspected a link and enough doctors who were certain they’d seen illness caused by toxic mold that Robertson sensed he had a dynamite case.
This most recent history of mold began in the early 1990’s, in a museum down in SoHo. Employees began falling ill at work with symptoms ranging from rashes to extreme fatigue to memory loss, and they came to see Dr. Eckardt Johanning, an occupational and environmental doctor at Mount Sinai Medical Center. At that time, ”occ-docs” like Johanning specialized in other dangers of the workplace, like carpal tunnel syndrome and asbestos poisoning. Stumped, Johanning inspected the museum offices and found mold that, when cultured, was determined to be ”something called Stachybotrys,” says Johanning, who at the time had never heard of the mold. (Since then he has compiled a 675-page tome called ”Bioaerosols, Fungi and Mycotoxins: Health Effects, Assessment, Prevention and Control.”)
Johanning searched the medical literature and found spotty research. There were allegations that toxic mold has been used in warfare and descriptions of animal poisonings, where mycotoxins in feed went on to kill large numbers of cattle in Russia and Finland. ”We know from laboratory animals,” explains Stetzenbach, ”when there’s forced inhalation of Stachy into mice, and then the mice are sacrificed and we look at the lung tissue, we see damage. But we can’t force humans to inhale toxins.”
In fact, one of the few controlled human studies inspired more debate than answers. In the fall of 1994, Dr. Dorr Dearborn, a pediatric pulmonologist at Cleveland’s Rainbow Babies and Children’s Hospital, began seeing too many cases of babies with bleeding in their lungs. As the total reached 8 and eventually 10, Dearborn called the Centers for Disease Control and Prevention, which sent an investigation team. The team’s leader, Dr. Ruth Etzel, designed a study matching each sick infant with three control infants who were the same age and lived in the same neighborhood. It turned out that most of the affected babies lived in homes with water damage and mold where tobacco smoke was often present. Among the molds found was Stachy, and the C.D.C. declared a possible link between mold, tobacco smoke and ”acute ideopathic pulmonary hemorrhage” (A.I.P.H.). The study was published in a respected, peer-reviewed journal.
These conclusions caused some government agencies to take action. The health and housing departments of Cleveland and Cayahoga County offers free home inspections to new mothers living in the part of town where the initial cases were clustered. The United States Department of Housing and Urban Development has put resources into mold research, too, spending $3.17 million on an effort to remove mold from the homes of infants at risk for A.I.P.H. and of asthmatic children. In addition, the American Academy of Pediatrics has warned that ”until more is known about the etiology of idiopathic pulmonary hemorrhage, prudence dictates that pediatricians try to ensure that infants under 1 year of age are not exposed to chronically moldy, water-damaged environments.”
Since the Cleveland study was first released, other doctors have become convinced that there are mold risks to adults as well. ”We do know for a fact that mold is associated with cognitive impairment in some people,” says Dr. Wayne Gordon, a neuropsychologist and professor of rehabilitation medicine at the Mount Sinai School of Medicine in Manhattan, and one of a small but growing group of scientists who have come to specialize in the health effects of mycotoxins. These doctors cannot yet say definitively how these toxins work and why they affect some people more than others. But they do know that victims of the toxins visit their offices every day, more this year than last year and that their problems range from minor memory loss to devastating cognitive failure. ”This is real,” he says, ”and it isn’t going away.”
In March of last year, however, the C.D.C. backed away from its initial study. In a 97-page examination of the case, two panels of reviewers gathered by the agency criticized everything from the way the babies’ illness was diagnosed to the way the mold was measured. ”The available evidence,” the reviewers concluded, ”does not substantiate the reported epidemiologic associations — between household water damage and A.I.P.H. or between household fungi and A.I.P.H. — or any inferences regarding causality.”
In other words, one report by the C.D.C. recants another report by the C.D.C. The agency now describes mold as an ”allergen” on its Web site, but makes little mention of the serious problems that researchers like Dearborn, Etzel and Gordon say are associated with mold. Nor does it mention that their findings have been replicated by other scientists. And while the agency advises that mold be cleaned up, it does not recommend testing to discover what type of mold is growing. ”We are not saying there are no health consequences to mold,” says Dr. Stephen Redd, chief of the air-pollution-and-respiratory-health branch at the C.D.C. ”There’s a diversity of opinion. Our opinion is that not enough is known about it.” The agency does not doubt that people are suffering, he says, but the C.D.C. is lacking scientific proof of the extent to which mold is the cause. To declare causation without that proof, he says, would be as irresponsible as waiting too long.
Dearborn and Etzel disagree and stand by their study. The C.D.C. rebuttal ”put the message out there that there was nothing to worry about,” Dearborn says. ”They didn’t take the prudent health position that until there is definitive evidence, we will take precautions. A legal standard of proof is 51 percent. A scientific standard of proof is greater than 95 percent. But where does public health prudence fall between the two?”
While scientists argue over mold, lawyers have been having a field day. Like the fungus itself, mold litigation has completely taken over Robertson’s practice in the years since the Malibu claim. ”The case settled very shortly, once we demonstrated what this stuff was,” Robertson says. The whole of the house was shrink-wrapped in plastic, torn down, then carted away and buried.
Today, callers to his voice mail are instructed that all new toxic-mold cases are being screened by the firm’s new director of microbiological investigations, a paralegal with a master’s degree in microbiology. At last count, she had a list of 325 potential new clients on deck, and Robertson has stopped representing individual homeowners in favor of cases that ”really prove a point.” On his plate at the moment are five courthouses where everyone from the judges to the bailiffs complain that they have become sick, and housing projects like the Spectrum, which, he says ”should have been the American dream, but has become a nightmare.”
(Robertson, too, makes some exceptions to his ”no private homes” rule. His star client right now is Erin Brockovich, whose two-story, 4,000-square-foot house outside Los Angeles — bought with the money from the movie about her environmental crusades — is contaminated with mold. There is a huge poster in Robertson’s office of Julia Roberts as Erin Brockovich, signed by the real Erin. ”To Alex, What a ‘bulldog’ you are,” it says, then asks, ”Gee, could a ‘mold’ movie be next?”)
Robertson says he believes he is in on the start of an entirely new area of law. ”It’s a hybrid,” he says, ”that’s why people have a hard time getting their arms around it. It’s part construction defect, because that’s what allows the water to get into the building. And it’s part personal injury, and very few lawyers do both.” Robertson himself had not handled a personal injury case until 1994, ”when I realized, Hey, we can’t just treat the building, we’ve got to treat some people in the building as well.”
Industry watchers agree. Mealey’s Publications, which puts out monthly legal reports, just added Mealey’s Litigation Report: Mold to its title list. ”Mold litigation isn’t going to go away any time soon,” says Colleen McLaughlin, the report’s editor. ”The attorneys involved are cutting edge, the type who are always looking for the next big thing.”
What looks like Genesis to lawyers looks like Armageddon to insurance companies. ”This mold problem seemed to come out of nowhere,” says Janet Bachman, vice-president of claims administration for the American Insurance Association. The Ballard case became front-page news in Texas and spurred many other mold claims. In the state, Bachman says, there has been a 137 percent increase so far this year in the amount paid out by insurance companies for water damage. (Insurance policies do not cover mold, per se; they cover damage that results from an otherwise covered event, like a leak or burst pipe.)
If that trend continues through the end of 2001, Texas insurers will be spending roughly $670 million on water claims. (That does not count damage from the Houston floods last June; while they will cause mold damage, the floods themselves are not covered events, meaning the resulting damage is not reimbursed by insurance.) Some in the insurance industry say that premiums will have to increase by 40 percent in order to offset mold claims.
Insurers are hoping, Bachman says, that this will turn out to be a short-term scare, a crisis of the moment, and that soon a fickle public will start worrying about something else. ”For a while the hysteria was over radon,” she says. ”And now it’s so obvious that nobody gives a damn. Remember the Alar scare? Now that’s a big shrug, too. Maybe this is just 15 minutes of fame for the latest boo-boo.”
Just in case it doesn’t disappear, however, some insurers are taking concrete steps. Farmers Insurance, for instance, has said that it will stop selling new homeowner’s policies that include water-damage coverage. In addition, it has asked the Texas Department of Insurance to allow the company to exclude mold damage from its policies entirely, even mold that results from a covered event.
State governments, in an effort to protect homeowners, are beginning to act, too. California’s Senate recently approved the Toxic Mold Protection Act, which orders the State Department of Health Services to establish licensing standards for professionals who go into the business of measuring and cleaning out toxic mold. ”Right now anyone can advertise in the Yellow Pages and call themselves a mold expert,” says Robertson, who helped draft the legislation, and who refers to opportunists as ”mold diggers.”
Whenever Robertson gives a lecture before an industry group, he says, ”I ask for a hand count at the beginning to find out who’s in the audience, and 90 percent are contractors who were all doing lead and asbestos abatement until the last year, and now they’re trying to jump on the mold bandwagon. It frightens me because you’ve got people that are taking a two-day course, and then they’re turning around as quote-unquote experts.”
The California bill also urges the health department to establish permissible exposure limits: how much mold is too much? Exactly what level of spores per cubic meter of air is enough to make us sick? It may be an impossible task, because the same level of mold seems to affect every individual differently. That would explain, among other things, why Ballard’s husband is still so sick but Ballard herself is not.
”We don’t always see the same health reaction every time,” Johanning says. ”I’ve seen marriages go down because people are not equally affected by it and one spouse thinks the other is imagining things.”
Ron Allison sits in the overdecorated living room of the rented house that his family has been living in, staring straight ahead. The furnishings around him are a swirl of burgundy and green, yellow and red, but he is a study in white and beige. His expression is as bland and subdued as his clothing, as he tries, quietly and haltingly, to explain who he used to be and who he is today.
Back when he was an investment adviser, he says: ”I did three to four deals at a time, I kept all these balls in the air. If I dialed your phone number once, I would have remembered it.” But in the months before the mold was finally discovered in his Dripping Springs home, his memory began to go. ”My problem is with input,” he says, trying to explain what his doctors have since explained to him. ”I can concentrate on one thing for a while, but if you add a second thing, then the input makes me short-circuit.” By way of example, his wife says, ”He can talk on the phone, but if you hand him a piece of paper while he’s talking, his brain just fries.”
Allison was asked to quit his job nearly two years ago, according to Ballard, and has been going to cognitive therapy sessions four times a week. ”He’s not worse, but he’s not better,” she says of her husband’s progress. ”I guess we have to give it time.” When not at therapy, he works at keeping his life simple. ”You can arrange your day to avoid feeling like an idiot,” he says. ”Sitting here and watching ‘Oprah,’ you’re not going to feel like an idiot, but I aimed a little higher than that in my life. I’m going to remember only a small percentage of this conversation, but I still remember my old life, and I want it back.”
He worries about what his son, Reese, will think of him. ”He knows that I used to go to work in the morning and now I don’t,” he says. ”He understands that the house made my brain sick. You want to be the absolute best role model for your kids. I’m not the best. I’m far less. I’m the best I can be now, but less than I was.”
Ballard worries about other things. ”Do you leave him?” she asks me later, explaining that Allison is now more like her child than her husband. ”How can I leave him? He can’t take care of himself. The worst day of our lives is still to come,” she continues. ”The worst day will be if we finally get that money, and he’ll want to manage it.”
That money is the $32 million she was awarded by a Texas jury in June, the result of her lawsuit against Farmers Insurance. It is by far the largest judgment against an insurance company in a mold case. Before the trial even began, Farmers had sent Ballard checks for nearly $1.4 million, first to repair and then to remediate the house. But Ballard charged that this did not account for the reality of toxic mold — mold that was given free rein, she says, while the company tried to find a way not to pay the whole of the hefty claim. All her possessions needed to be replaced, her lawsuit said, and according to experts like Holder and Straus, the house could not just be cleaned, it had to be destroyed and rebuilt.
Although Flynn, the Farmers spokesperson, says the company ”handled this claim promptly and vigorously and would do it the same way again,” the jury agreed with Ballard, and granted her approximately $6 million for the house and its contents, $12 million in punitive damages against Farmers, $5 million for emotional distress and nearly $9 million in attorneys’ fees. Flynn, of Farmers, says the verdict (which the judge has sent to mediation) threatens not only the company but also the entire industry.
”As a practical matter she has almost single-handedly caused, well, not an hysteria, but a heightened interest in mold,” Flynn says, choosing her words carefully. ”In the year or more since the start of this case, we are seeing claims for mold in and of itself. People are filing claims from a fire that happened a year ago saying that mold arose from the fire-suppression activity. They are about to go to mediation on a claim for a cracked foundation, and we get a letter a week before saying, ‘by the way there’s mold in the house and we have to tear it down.’ ”
Until this case, she says: ”we didn’t have any designation or coding for a mold claim. That was an animal that just didn’t exist. Mold was a byproduct. It was never viewed as a separate loss.”
As alarmed as the company is by the judgment, Farmers is relieved that the jury was only allowed to hear evidence about material damage to the house. Ballard’s suit also claimed health damage to her husband, but the judge disallowed all medical evidence, saying that there was not sufficient epidemiological research directly linking health problems to mold.
”Suppressing the medical testimony was extremely important to us,” Flynn says. ”This is a property insurance policy,” she explains. ”This is a policy that takes care of physical damage to the house. This is not a medical policy. It is not a type of policy ever intended to pay for a person’s physical injuries while living in their homes. If they develop a health problem, it should be covered by medical insurance.
”On a second level,” she continues, ”there was the inference that somehow we did something that made the family sick. That we should have said: ‘Oh, you had a water leak a year ago and that leak might result in mold. It could be toxic mold, and that could be injurious to your health so you’d better leave your house now.’ We didn’t have that kind of knowledge.”
Ballard responded to the verdict by spending some of her expected payment to gather the sort of scientific evidence the judge and Farmers say does not yet exist. Over this summer she plans to assemble some of the leading experts in the field, who, between them, have seen hundreds of patients suffering ”mold poisoning.” She says she will ”lock them all in a conference room somewhere and ask them to compile a complete database, a profile of what we know.” She has plans to invite representatives from the C.D.C., because, she says: ”You have to keep your enemies close. If those S.O.B.’s are in from the beginning, they can’t complain about our accuracy at the end.”
Out in California, where evidence rules are less stringent than in Texas, Alexander Robertson, too, is looking for future epidemiological data. His ”laboratory” is the Spectrum condominium complex, and he has contracted with an ”occ-doc” from the Harvard Medical School to do a biostatistical study of every occupant. All 1,500 residents will be asked about their symptoms, and their apartments will be tested to establish the presence and quantity of mold. The residents of a control apartment complex will be similarly studied. ”If we show that the Spectrum building has a higher percentage of people reporting the same or similar symptoms, we go a long way to silencing those who argue mold can’t be the cause,” he says.
On my way back from Melinda Ballard’s contaminated house, I stop at a highway gas station and change my clothes in the restroom. I kick myself for not wearing long sleeves, long pants and combat boots when I went into the house, and wrap what I did wear — shorts, T-shirt and flip flops — in a double plastic bag and throw it in a nearby Dumpster so that the mold spores that might have settled on my clothing won’t contaminate everything else I own. I debate whether to go straight back to my hotel to take a shower but decide that I don’t want to add water to the spores that might be in my hair. I’d rather kill them first by spending time outside in the ultraviolet light.
David Straus says this is not overreacting. Bill Holder says it probably is. Melinda Ballard, who suggested these precautions in the first place, has become fed up with doing this herself and now saves one ratty outfit for visiting her old home. Such is the murky level of knowledge at the moment about the dos and don’ts of toxic mold.
Dressed in fresh, uncontaminated clothes, with hair of questionable cleanliness, I go on to spend the evening at the home of an Austin friend. We sit in her living room and talk with her new neighbors, Bridget and Ted Karam, who are renting a house for several months while their 4,700-square-foot dream home across the highway is inhabited by men in moon suits. The house has leaked in the rain since it was built in 1993, the Karams say, but it wasn’t until they read about the Ballard case that they thought to look for mold. ”We realized my daughter was waking up with sore throats every time she slept in her room,” Bridget Karam says.
The couple paid $2,800 to learn that there was Stachybotrys and penicillium in their home. It will take nearly six months and cost $140,000 to clear it out. Listening to their story, my throat starts to hurt. So does my friend’s. ”My kids wake up with sore throats all the time,” she says, looking around her pristine living room, which suddenly smells a little musty. ”Maybe I should call someone to test us?”
Medical students develop symptoms of one disease after another as they go through their textbooks. Called somatization, it is a testament to ”the power of suggestion,” says Bachman of the American Insurance Association, which clearly has a stake in believing this is all in our heads. ”When I was in college, I took a psych course, and within nanoseconds after reading a list of symptoms I diagnosed myself as being crazy as a bedbug. I’m thinking that people are going through the same thing with mold. Mold has always been around, it will always be around. Why is everyone going so crazy about it right now?”
Nowhere are people going crazier than in Austin, where the Austin Independent School District closed the Hill Elementary School for the past 18 months and closed off sections of another school because of mold. Now there is a wait of months for most contractors who screen for mold, and homeowners are hiring testers from Dallas and Houston, paying their travel expenses.
All this raises some obvious questions: Is there more toxic mold than ever before? Is all the new construction, using cheaper, mold-friendly material causing a true invasion or are we just paying more attention? Is this a new asbestos — a new and measurable danger? Or a new Legionnaire’s disease — a threat that has existed and been unrecognized for generations? Or, perhaps a new chronic fatigue syndrome — a disease that definitely affects some people while playing mind games with many more? Do we really need to clean it up, or is it just that ”mold is gold,” as contractors say, and there is money to be made from homeowners’ fears.
These are questions that Ted Karam does not feel he has the luxury of pondering. ”I don’t know how much is hysteria,” he says. ”But I can’t take any chances. If you find it, you have to do something.”
The something varies, however, because no one seems to agree on the right thing to do. The Karams, for instance, lived in their home for more than six months after the mold was found. ”But we kept running into other people with mold, and they had been told to move out,” Bridget Karam says, so eventually they did, too. And although they have read that Ballard left all her belongings in her house, they could not bring themselves to do the same. They let their daughters sneak back in to rescue a few favorite outfits along with their yearbooks and some angel figurines. Bridget, who is a professional photographer, took all her negatives. ”I can’t bear to lose any of my memories,” she says.
Tracy and Steve Wehmeyer, in contrast, who live across town from the Karams, began making plans to leave their home and most of their belongings within days of getting their results. No one in the family had been terribly sick before Stachybotrys was discovered in their walls, but they aren’t feeling too well right now. ”Every time I can’t remember something, I wonder, Is it mold or is it wine or is it age?” Tracy Wehmeyer says, half-joking. Then she turns pensive. ”You think of your house as the safest place you can be. Then to learn it is hurting you and your family. . . . ” She doesn’t finish the sentence.
So far only one family in the Austin area has burned down their home. Ballard says she has considered it, but was warned that the wind and smoke would simply spread the mold. Her neighbor is already suing her for $1 million, saying that the very existence of the Ballard house has lowered area property values. The Karams fear a financial toll, too. Before the mold was found, their house was appraised at $2.3 million. Because of the history of mold, however, their bank’s appraiser warns that it will be worth 30 percent less.
Ballard says she will wait until the case is completely closed before she touches her Dripping Springs home. Then, when the house is no longer evidence, she will have it cut apart — walls, beams, furniture, appliances, hardwood floors and all — and shrouded piece by piece in double-wrapped plastic before being buried in a landfill.
She has other plans too. She has announced her candidacy as a representative from the 46th District, and her hope is to sit on the insurance committee. ”Nearly everyone hates their insurance company,” she says. ”What a platform.”
- New York Times, February 20, 2013, by Lisa Belkin, a contributing writer for the magazine.
