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Appeals Court Reinstates “Toxic Tort” Claim Over Mold-Infested Apartment

Personal injury claims are not always based on accidents or direct actions by a negligent party. In so-called toxic tort cases, for instance, a defendant may be held liable for a hazardous health condition that contributes to a victim’s injuries. In such cases, a plaintiff must establish causation through expert medical testimony.

McCarney v. PA Lex Glen, LLC

In one recent case, the Georgia Court of Appeals reinstated a toxic tort claim against a landlord accused by a tenant of failing to properly treat a major mold infestation. According to the plaintiff’s lawsuit, he rented an apartment from the defendant for about a year. Towards the end of his tenancy, the plaintiff learned from his neighbors there might be mold in their apartments. The plaintiff subsequently discovered a “black substance” covering several surfaces in and around his unit.

The plaintiff canceled his lease, citing a mold infestation. He later sued the apartment complex owner, citing, among other claims, personal injury. Specifically, the plaintiff said he received “treatment for sinus problems,” including surgery to remove mold from his nose. The plaintiff’s surgeon later testified during a pretrial deposition that there was a “high likelihood that the mold in the [plaintiff’s apartment] contributed to his condition.” While the surgeon could not say the mold actually caused the plaintiff’s original sinus problems, he testified that it “definitely contributed to his prolonged care and some of his problems.”

In spite of this expert testimony, the trial court granted summary judgment to the defendant and dismissed the case. On appeal, the Georgia Court of Appeals reversed, holding the plaintiff introduced sufficient evidence to let a jury decide whether the defendant’s negligence caused his injuries.

The appeals court noted that to survive summary judgment, all the plaintiff had to do was introduce expert testimony that would prove “causation.” The surgeon testified that the mold in the plaintiff’s apartment, at a minimum, “worsened his medical condition.” An expert witness does not have to be 100% certain with respect to causation, the court noted, only certain to a “reasonable degree.”

Even if the expert had testified that mold was just a “possible” cause of the plaintiff’s medical condition, there was substantial “nonexpert testimony on causation” to allow this case to go to a jury. The appeals court cited evidence from a mole expert hired by the plaintiff who testified that the spore counts in the apartment were approximately 100 times the acceptable level. Additionally, the plaintiff’s roommate testified that “he had fallen ill while living” in the same apartment.

It should be noted a three-judge panel of the Court of Appeals decided this case. One judge concurred “in judgment only” and did not join the majority’s full opinion. He did not explain his reasoning. Nevertheless, this means the decision here applies just to the facts of this case and does not constitute binding precedent in future Georgia cases. This case is therefore discussed here for illustrative purposes only.