Testing Protocols for Mold Claims

How many times has a claim file landed on the desk of an adjuster or defense attorney with little more than one or two mold test reports and a huge bill for remediation that already has been completed? How does the adjuster or defense attorney evaluate the validity of the mold claim or the remediation costs?

When claimants are demanding immediate action, how does an adjuster or attorney properly handle potential mold claims that may involve responsible third parties in order to preserve third-party claims that may eventually end up on the desk of other adjusters or attorneys?

Although the weight of scientific evidence is against most major personal injury claims, the effects of mold on allergies, asthma, and infections in medically fragile individuals are well known and documented. In addition, the public perception of mold as a health risk has greatly increased the potential cost of any water loss claim. Therefore, proper handling of actual or potential mold claims is crucial to avoid allegations of bad faith and to preserve possible claims against third parties.

The general standards for examination and testing of physical evidence are outlined in the American Society for Testing and Materials' Standard Practice for Examining and Testing Items That Are or May Become Involved in Litigation and Standard Practice for Collection and Preservation of Information and Physical Items by a Technical Investigator. These provide the starting point for determining whether any examination or testing of physical evidence was conducted properly. In actual or potential mold claims, many levels of possible examination and testing exist, and multiple variations on the types of examinations or tests can be conducted.

Most fieldwork should be conducted by an Industrial Hygienist who has been certified by a reputable agency such as the American Industrial Hygiene Association (AIHA). The CIH designation means that the hygienist has been trained in the proper techniques for physical inspection and sampling. (This does not mean, however, that he actually has sufficient experience or is conducting field tests properly.) People working with molds in the laboratories usually are mycologists, specializing in the study of fungi; microbiologists, a broader specialization involving fungi, bacteria, and other microorganisms; or toxicologists, who study organisms and other substances potentially harmful to humans.

Field examination and testing that is not conducted by an experienced and trustworthy CIH should be viewed with skepticism. Laboratories should be accredited by AIHA (a list can be found at www.AIHA.org) and one or more national-level professional organizations. Additionally, all laboratory work should be conducted by, or under the supervision of, a mycologist or microbiologist.

National Standards

In the expert parlance, testing for mold is a fungal assessment. However, there are no national standards for when or how fungal assessments should be conducted. The lack of national standards is the result, primarily, of the lack of recognized personal exposure levels (PELs) for mold, such as those that have been developed for toxic chemicals and other substances. The difficulty of establishing baseline PELs is due to the pervasive and ubiquitous nature of mold and other microbial organisms, the wide variation in the ambient exposure between different geographical regions, and the fact that physical reactions to the same exposure can vary greatly from one person to the next, or even for the same person at different times of exposure. For example, what may be an allergic irritant to a city-dweller from New York visiting a southern farm might be simply the “sweet smell of home” to someone who has lived there all his life.

Some published guidelines for assessment are being used by reputable companies, although the focus of these guidelines is remediation. The Guidelines on Assessment and Remediation of Fungi in Indoor Environments, from the New York City Department of Health, probably is the most widely used. The EPA also has published recommendations for fungal remediation in schools and commercial buildings. Again, however, the main focus of both is remediation, with little guidance as to when or how to conduct assessments.

Authorities have reached some general agreement on when examination or testing is necessary. Fungal assessments should be considered strongly in the following situations: water has intruded into or remains on organic materials for longer than 24 hours; there is visible growth of suspected fungal organisms; building occupants experience widespread and continuous allergic symptoms in the absence of other identified causes; or there are known or suspected cases of human fungal contamination in a medical or assisted-living facility.

Mold spores exist in almost every environment, and organic building materials are used in virtually every structure. Preventing continuous water contact with organic materials is, therefore, the best method of preventing mold growth. Because mold spores take 24 to 48 hours to germinate, if water intrusion is eliminated and the affected area is dried and cleaned within 24 hours, a fungal assessment probably is not necessary, other than informal observation for a few days to detect any visible fungal growth or mold-related odors.

Anytime a substance that is suspected to be mold is visible, source sampling should be conducted. Visible mold growth is an indication of continuous moisture intrusion and may require an investigation to determine the origin of such intrusion. Air sampling also may be warranted, depending upon the location and size of fungal growth, the type of mold detected, the concerns of building occupants, and the use of the structure (for example, medical or assisted-living facilities).

A broad assessment of an indoor environment may be warranted when a relatively large number of occupants experience similar allergic symptoms. Many possible causes exist for what is loosely called sick building syndrome but, at the least, visual inspection of the structure, including wall cavities and other hidden areas, may be necessary. If visual inspections do not reveal potential causes, air sampling may be warranted to identify possible causes or areas of the structure that require more extensive investigation.

Medically fragile individuals (such as those with pulmonary conditions, the elderly, and the very young) are susceptible to rare but potentially fatal infections such as Aspergillious, in which spores from the Aspergillus species of mold can invade and grow in the lungs or open wounds. These cases present the greatest exposure for personal injury claims. Facilities occupied by medically fragile individuals must take greater precautions to detect and prevent mold growth, especially when events such as remodeling or water damage occur. Source sampling and air sampling should be conducted anytime that there is visible mold growth in areas connected to the space used by medically fragile individuals (including HVAC or other air-exchange systems) or where there is a known or suspected case of personal fungal contamination.

Testing Methods

Every fungal assessment should begin with a physical examination of the test area. Physical examination can identify areas of visible growth, the patterns of air flow likely to transport spores, possible origins of water intrusion, and possible sources for mold contamination other than indoor growth (such as indoor plants, pet bedding or grooming items, or certain types of landscaping near heavily used doorways). Observations made by the person conducting the physical examination should be documented.

If warranted, sampling may be conducted after a thorough physical inspection. Fungal assessments in the field consist of two broad types of sampling, source sampling and air sampling. Air sampling involves the collection of airborne mold spores or hyphae (parts of the mold organism) through the use of air intake equipment and spore traps. Source sampling involves collecting specimens of visible suspected fungal growth, and can involve scraping visible material into clean collection bags, taking lifts with clear transparent tape, taking samples with sterile swabs, or the actual removal of pieces of the material upon which the suspected mold is growing.

Air sampling is the most common method used in fungal assessments. It also is the source of most errors and misinterpretation. Because mold exists almost everywhere, virtually all airborne tests will be positive for mold spores. A positive indoor air sample, by itself, is virtually meaningless.

Air sampling should be conducted in multiple areas of the structure and control samples must be taken of the outdoor air near areas of airflow into the structure, such as doors, windows, and air exchangers. Although there is some uniformity in the type of equipment used, there can be wide variations in how the tests are conducted, especially in the volume of airflow over a spore trap or the length of the sampling procedure. Therefore, air-sampling results have utility only when samples have been taken in multiple areas using the same technique. This allows a comparative analysis of results to determine whether the indoor concentration of spores is greater than the outdoor concentration, which may indicate additional assessments.

Another potential source of error in air sampling occurs in the laboratory. Visual examination of spore collection plates is difficult, and both spore counts and spore identification can vary greatly from one technician to the next. Therefore, the same person should visually examine all air samples from a suspected location.

If it is necessary to identify the type of mold collected in an air sample, the better method is the use of culture media to grow mold organisms from collected spores. The drawback of this method is that it takes time and tends to underestimate actual fungal concentration, because many spores either are not viable or are unable to grow on the culture medium. Microscopic visual examination of air samples taken properly is the best method of comparing fungal concentration, but culture-based analysis is the best method for identifying fungal species.

Identification of fungal organisms taken by source sampling also face the same limitations of visual examination. Accuracy in identification is dependent on the degree of the analyst's expertise and experience. The value of source sampling is that, usually, organisms are sufficient for species identification without the time required to grow cultures. Visual identification of source samples also is useful for comparison to air samples in order to determine whether the sampled growth could be contributing to airborne fungal concentrations. If they are not visually similar, the growth likely is not affecting air quality.

In cases of actual fungal infestation in the human body, proper sampling, testing, and preservation of the samples are absolutely essential. With proper samples, polymerase chain reaction testing can identify not only the species of mold, but the strain. Comparison then can be made between the mold strain taken from the human infestation and that found in the suspect environment in order to determine the likely source of the strain.

A proper understanding of the procedures involved in examining and testing for mold now are fundamental requirements for adjusters and attorneys. Adjusters and attorneys must be aware of the utility and limitations of these examinations and tests in order to prevent spoliation of evidence claims, to recognize spoliation claims against others, and to properly acquire and preserve evidence for possible claims against others.

T. McRoy Shelley III is an attorney with Rogers Townsend & Thomas, in Columbia, S.C. He can be reached at shelley@rtt-law.com.