A Landlord’s Liability For Failure To Remove Mold

LEGAL NEWS by KEVIN KNIGHT

Landlords have to keep their properties “ship shape” and in good repair, etc. One of the easiest items on the “to do list” that can be overlooked is mold. Sometimes it’s hard to see on first blush and other times it’s mistaken for wear and tear, discoloration, etc.

By: Kevin Knight

A recent Florida case emphasizes the importance of ensuring that there is an orderly program for mold detection and extrication. This article will consider the case of Huggins v Siegel (Fla. 1st DCA September 15, 2021).

THE HUGGINS FACTS:

The Huggins rented a house from Siegel from August 2015 through December 2017. Before they moved in and during the rental period, the Huggins complained about potential water intrusion and mold. Siegel refused to have the house inspected and the Huggins hired their own mold inspection company.

The inspection report indicated that multiple mold types, including two toxic molds -- aspergillus and penicillium -- were present in the home. After receiving the mold report, Huggins vacated the property.

THE LAWSUIT: Huggins sued Siegel and asserted that Siegel’s negligence in failing to inspect and remove the old exposed Mrs. Huggins to dangerous mold. At the time of occupancy, Mrs. Huggins was pregnant with one of Huggins’ children.

Throughout Mrs. Huggins’s pregnancy, ultrasounds showed that the child was forming two kidneys, but when the child was born it had only one kidney (i.e., renal agenesis). The child also exhibited indications of brain injury. Mrs. Huggins suffered severe emotional distress as a result of her newborn’s issues.

THE EXPERT ISSUE: In order to prove their case, the Huggins retained a medical expert to testify about causation. About a month before pretrial, Siegel filed a motion to strike the expert. Huggins argued that Siegel’s motion was “too late.”

The trial court denied Huggins’ lateness argument and also found that the expert was not qualified to testify on causation.

Siegel requested summary judgment based on the Huggins’ inability to prove causation and their case without a medical expert. The Huggins conceded this point, Siegel was granted summary judgment and the Huggins appealed.

THE APPEAL: The appellate court considered Huggins’ expert’s background. The court noted that he was a board certified, licensed physician in the specialty of obstetrics and gynecology and the subspecialties of reproductive

endocrinology and embryology. Noting these credentials, the court highlighted that Huggins retained the expert as a causation expert to testify that the mold in Siegel’s rental home caused their child’s renal agenesis and brain injury.

The appellate court found that he was not qualified to testify as to causation because he lacked the experience and knowledge to connect the mold to the child’s medical conditions. Huggins’ expert testified that he treated a patient with an unborn child with renal agenesis during his training, but his current practice specializes in

infertility, and he does not typically treat patients like Mrs. Huggins.

The expert also testified that he has never been involved in cases involving the disappearance of a kidney in an unborn child, or cases where a kidney was observed but later disappeared before birth. Additionally, the expert never

attempted to link mold to unilateral renal agenesis before this case and he never presented on the topic of mold in the developing kidney.

Finally, the expert admitted that he is not a mold expert and knowledge of mold growth is outside his specialty. Additionally, he was unable to find scientific or medical literature directly linking mold to kidney disappearance in humans. There was another expert (mold) who testified that he believed within a reasonable degree of scientific probability that mold existed in Huggins’ home while the child was in utero, but he was unable to determine the quantity of mold that was present or whether the property would have passed a mold inspection. He based his belief that the mold was there for the relevant period because of his basic knowledge and common sense that mold doesn’t grow overnight.

The appellate court opined that EVEN if Huggins’ medical expert had relied on the mold expert’s report, which he did not, he did not have enough independent knowledge or additional expert information to determine whether the mold was the cause of the child’s renal agenesis and brain injury.

Without this expertise, experience and research or experiment(s), the medical expert “could only” speculate on the issue of causation. Thus, the court confirmed that the trial court properly struck the expert.

CONCLUSION:

The Huggins’ case emphasizes that a landlord’s failure to inspect and eradicate mold can have dire consequences for the tenants and landlords…..if the proper expert is retained to connect the causal dots between the presence of mold and the injuries that occurred.