Off the Wall
Opportunism in the Golden Age of Irresponsibility
The first and only time I was selected for jury duty, I was fortunate enough to participate in a rather straightforward case. The defendant was standing trial in federal for armed bank robbery, and the evidence against him was overwhelming.
Not only had the bank's security cameras captured indisputable images of the suspect committing the felony, two bank employees positively identified the perp. Police had tracked down the suspect within minutes of the crime, tracking the subject to a nearby motel. The suspect had been stained by an exploding die pack that had been hidden with the money. He was easy to spot, testified police, because he had stashed the loot in his underwear, presenting a bulge in his pants that defied the proportions of conventional human anatomy.
While it was pretty clear that the defendant had actually committed the robbery, his attorney argued he was innocent of the charges because--at the time--the defendant was temporarily insane and not responsible for his actions. We, the jury, didn't buy it.
But I can understand why the felon tried to dodge responsibility for his actions. After all, he was facing 20 years in prison. What did he have to lose? Unfortunately, ducking away from personal responsibility has become very popular in our times, as the amount of civil and class action lawsuits filed in the United States continues to set new records. A recent survey by the Federalist Society, a conservative research group in Washington, D.C., noted that from 1988 to 1998 the number of federal class action suits increased nearly four-fold, and that the number of state class actions increased by a factor of 10.
Guilty partiesWhile many of these cases may have merit, an alarming number of suits are being brought forward by a growing class of opportunistic victims who seek substantial compensation for every one of life's slights, no matter who's at fault. Consider the following:
? In August, a Merrimack, N.H., man who had been convicted three years ago of aggravated driving while intoxicated after crashing his Jeep in a sandpit and killing a friend filed suit against the owners of the pit, as well a couple who had hosted the party where he was drinking prior to the crash. He is arguing the couple was negligent in letting him get drunk and that the pit's owners should have done more to keep thrill-seekers from four-wheeling in the sandpit.
? In June, top-ranked women's tennis player Martina Hingis filed a $40-million lawsuit against Italian shoemaker Sergio Tacchini, claiming the company outfitted her with "defective" shoes that injured her feet. Hingis had worn the shoes between 1996 and 1999 as part of a five-year, $5.6 million endorsement contract with the sportswear manufacturer.
? And earlier this year, the winner of an "all you can drink" contest at a Cincinnati bar, who fell and hit his head after drinking himself into a stupor, sued the bar's owners for $1 million, alleging the bar should have seen he was drunk and refused to serve him.
These examples seem to suggest the litigious nature of our society has reached a new level of audacity. At the dawn of the 21st century, personal responsibility has somehow taken a back seat to greed, and we have become a nation of victims barely competent enough to pick an attorney out of the yellow pages.
Tragically, against this backdrop emerges the next great wave of litigation--mold, in particular, the toxic varieties such as stachybotrys, aspergillus and penicillium. Many people are already familiar with the $32 million award handed down to a Texas family who established that their insurer's negligence in repairing water damage to their home brought about a nightmarish mold infestation. But what many people may not realize is that there are already more than a thousand of similar lawsuits awaiting their day in court. And the mainstream media has only just begun fanning the flames of a nationwide hysteria over toxic mold.
The fun in fungusThe total amount of pending mold litigation is already well into the billions of dollars, and could very well surpass $1 trillion before the mold litigation wave passes. Among the more outrageous cases: a New York community college employee is seeking $65 million in damages for injuries allegedly caused by mold exposure at a campus dormitory; a New York family is suing its apartment's owners for $180 million for injuries and damages allegedly caused by mold; in Toronto, a group of apartment tenants is suing its property's owners for $600 million; and in Brooklyn, N.Y., the owners of two apartment buildings have been hit with 125 lawsuits by tenants seeking $8 billion in damages for exposure to mold and fungi.
And these suits only begin to scratch the surface. According to a recent article in the Chicago Tribune, Woodland Hills, Calif., attorney Alex Robertson claims to have more than 1,000 lawsuits pending on behalf of condominium owners, while hundreds more multi-million dollar suits have been filed across the country. The targets of these suits are wide reaching, including building product manufacturers, builders, subcontractors, insurers, property owners and former owners. Conceivably, anyone who has built, repaired, owned, maintained or insured a building could potentially be a target of litigation.
While I do not doubt that some of the pending actions are from people who are suffering real problems caused by someone else's negligence, I suspect that many suits are also being filed by people with make-believe problems hoping to cash in on a judicial jackpot. Despite the mold litigation frenzy, there is little scientific evidence to support many litigants' claims that the presence of toxic mold leads to debilitating health effects.
According to the Centers for Disease Control and Prevention, the number of documented cases of toxic molds causing severe health problems are rare, and in those instances, a casual link between the presence of toxic mold and adverse health effects has not been proved. While some people do have a greater sensitivity to mold, the most common problems associated with that sensitivity are "nasal stuffiness, eye irritation or wheezing."
However, many less-authoritative medical and legal professionals contend that the mere presence of toxic mold in a building will result in life-threatening injuries. According to the Internet site "Toxic Mold News," common health effects attributable to toxic mold exposure include lung disease, chronic fatigue, central nervous system problems and immune suppression. The site further claims that mold exposure "can be dangerous and even fatal for susceptible individuals." It should come as no surprise that the site's listed contacts are two national law firms specializing in "toxic torts."
Perhaps the most toxic aspect of the emerging mold litigation is the apparent susceptibility of the plaintiffs to be victimized by every one of life's unfortunate circumstances, or at least those where a scapegoat with deep pockets can be identified.
We can only hope that many of the pending mega-mold lawsuits will fail to yield multi-million-dollar payoffs, and that plaintiffs' attorneys eventually move on to more lucrative pastures. However, if juries continue to reward hapless victims for shirking every shred of personal responsibility, toxic mold will become one of the least of our concerns.