Affordable Housing Institute : US

[Continued from yesterday's Part 1.]

 

Yesterday’s post on the challenge of mold in housing ended with Paul and Wendy Meng having decided to sue their home’s builder, Drees Company, because the whole family had got sick very shortly after moving in. 

 

What six weeks in a moldy house can do to you

 

Untangling the Washington Post story into its logical sequence, the Mengs went in to court seeking to prove the remaining five parts of their logic chain:

 

4. The mold showed up after the house was built

 

The Mengs had identified some punch-list items, which Drees had corrected:

 

Drees told the Mengs that the windows had been fixed, but puddles in the basement persisted after the family moved into its $900,000 home in the Chantilly area of Loudoun, the Mengs said.

 

The factual question is whether there was mold.  I presume there must have been. 

 

They later learned that Drees had not allowed the house’s frame to dry before installing drywall, creating the perfect conditions for mold to thrive all over the house, the Mengs said.

 

This too is a factual issue to be determined at trial, but let’s assume it’s right.

 

Chin S. Yang, a mycologist who testified as an expert witness in the trial, said that mold grows in houses when excessive moisture is present and that the problem became more common after drywall largely replaced plaster in home construction.

 

Dr. yang certainly seems to be an expert on the subject.

 

Co-author of a text on the subject

 

He said the paper in drywall contains sugar polymers that can serve as food for organisms.

 

As I posted in dreamers versus plumbers, it’s not how you design it that mattes, it’s how you build it. As I noted, it’s dangerous to flout Padfield’s law of complicated structures.

 

 

5. Removing the mold coincided with their return to health

 

Meanwhile, the Mengs applied the engineering approach: change something and see what happens.

 

In April, Wendy Meng took a four-day trip to Williamsburg. Her headaches stopped completely, she said, and “the pain just lifted.” When she returned home, the migraines quickly returned and the next weekend she was hospitalized again.

 

They had no choice but to move, the Mengs said.

 

Taking only their beds, a couch, a table, some teddy bears and clothes that had been dry cleaned, the family moved to a South Riding townhouse that April. The sickness continued, but to a lesser degree, they said. The mold had contaminated their possessions and had followed them to their new home, they later learned.

 

Makes you believe in malicious spirits, doesn’t it?

 

Last March, the Mengs went to see Ritchie Shoemaker, a doctor on Maryland’s Eastern Shore who specializes in illnesses caused by water-damaged buildings. He said mold and other microbes in the house had produced toxins that made the Mengs sick.

 

Shoemaker said their possessions had been contaminated, too, and the family threw away almost everything, including family photos, baptismal gowns and toys. “He said we had to get rid of everything we had,” Wendy Meng said. “When we moved [again] . . . we didn’t even bring a sock.”

 

The Mengs moved to Aldie in March last year. In September, they went to a bio-detox center in South Carolina for about a month to remove toxins that had built up in their bodies. The children missed about a month of school, and “that’s been challenging,” Paul Meng said.

 

Among other treatments, the Mengs sat in 150-degree saunas for three hours a day.

 

From the Washington Post:

Wendy Meng gets her daily oxygen treatment at a rented home in Aldie, where the family moved last March. The Mengs moved to South Riding before that.

 

Since the Mengs all got sick, and were not sick until they moved in to the house, one can point to the house as a probable cause.  Further, if mold spores had gone into their lungs, it could be quite some time before they are flushed out.

 

“I felt like I got my life back,” Wendy Meng said, though she and other family members still have problems.  Paul and Kaleigh have asthma.  Wendy and Kaleigh are on a daily regimen of oxygen treatments, and Wendy has painful muscle spasms in her neck and shoulders from time to time.

 

6. They sued the home builder

 

The Mengs were unable to get satisfaction from their builder:

 

“We kept on hoping that Drees was going to do the right thing,” Wendy Meng said. “All we asked them to do was put us up somewhere while they got the house completely cleaned . . . and they wouldn’t do it.”

 

 

They filed a lawsuit against Drees in Loudoun County Circuit Court that August.

 

Litigation is a blunt instrument.  But it gets the mule’s attention.

 

Oh, you got a copy of our filing?

 

Paul Meng, who co-owns a company that automates systems in commercial buildings, said he never wanted it to go to court. “Court is the last resort. . . . We still trusted them. We had expected them to come through for us.”

 

7. The home builder said it didn’t happen, and if it did, it wasn’t our fault

 

In court, the company:

 

[1] Denied that the way it assembled the house led to the mold

[2] Said it was not responsible for cleaning it up
[3] Said it did not think that the mold made the Mengs sick

 

Though this three-tier defense sounds risible out of context, it’s actually fairly reasonable.

 

We’re still constructing our defense

 

Working backwards:

 

[3] The company needn’t concede that the mold made the Mengs sick, although the overwhelming preponderance of evidence (presented in the WaPo article) favors that conclusion. 

[2] Is a consequence of [1].

[1] Is the core question – was the company’s construction faulty?  If it was, and if that led to mold, it’s hard to avoid being found liable, since the Mengs are clearly sick, and clearly have been at their wits’ end for some time.

 

As one might expect, given that summary …

 

8. The jury found for the plaintiffs

 

A Loudoun jury recently awarded the family $4.75 million, among the largest awards in a mold case in Virginia.

 

But by no means the only one, as the attached newspaper clipping shows.

 

$22.6 million for some timbers

 

Jurors said the home’s builder, the Drees Co., was negligent and violated the Virginia Consumer Protection Act. They said the company was responsible for the couple’s health problems but not those of Emma, their youngest daughter.

 

Litigators whom I know are divided on jury trials.  Some like them when there is a David-versus-Goliath story, or a consumer-versus-company tale, counting on the jury’s natural sympathy for the party more like themselves – particularly if personal-injury is involved.  My own experience (as an expert witness) suggests that juries (except in some states that I’ll decline to name) are wiser than we give them credit for.

 

Barbara Drees Jones, vice president of marketing for Kentucky-based Drees, declined to comment on the case because attorneys for Drees are going back to court Friday [that is, February 6 – Ed.] to ask the judge to set aside the verdict.

 

Drees Homes recently won a 2008 award as being among ‘America’s Best Builders.’ 

 

Multiple generations of Drees – David Drees, Ralph Drees, and Barbara Drees Jones

 

I’m sure they really wish this would just go away – which suggests that they think the award must be way too large

 

Kurt C. Rommel, an attorney for Drees, said it would be inappropriate to comment until the judge enters a decision on the jury verdict.

 

Rommel thinks it inappropriate to comment

 

The Mengs still own the Chantilly house, but they said it would cost about $400,000 to remove the mold and make necessary repairs. They’re not sure what to do with it, they said, and are reluctant to sell it for fear it would cause another family health problems.

 

The Mengs said problems with the house have cost them hundreds of thousands of dollars in medical expenses, legal fees, discarded furniture and other expenses. But they can be replaced.

“If you don’t have your health,” Wendy Meng said, “it doesn’t matter what you have.”

 

I smell a settlement coming, with a confidentiality agreement provision.

 

9. The moral: watch your subcontractors!

 

For developers, there’s an obvious moral. 

 

Don’t be a horse’s ass? 

“What you have is [Drees] not using common sense,” said David H. Wise, the Mengs’ attorney. “They didn’t supervise their subcontractors. . . . They didn’t care when water intruded into the house during construction.”

 

Whatever the outcome, whatever the settlement, that is the lesson: supervise your subs!

 

You have no idea what’s going on under the surface

 

Send post as PDF to