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Wilke Fleury Partner Weighs In On Mold Debate

As an attorney who practices primarily in the construction defect arena, I read Dr. Craner’s commentary1 with particular interest. My practice includes both prosecution as well as defense of owners and developers in residential and commercial property cases, many of which have a “mold” component. Indeed, my deposition of Dr. Bruce Kelman in the Kerruish v. Kimball Hill Homes case is cited in Craner’s article.

In my many years of experience on both the plaintiff and defense sides of the “mold” debate, i.e., whether and to what extent indoor mold arising in water-damaged buildings is a valid, diagnosable, treatable, and preventable environmental health disorder, I have, since its publication, consistently observed defense experts relying upon the ACOEM’s statement on “Adverse Human Health Effects Associated with Molds in the Indoor Environment”2 as the “final” scientific word on the issue. Plaintiff experts, on the other hand, are routinely challenged to defend and prove the scientific basis of their affirmative opinions as a rebuttal to the ACOEM Statement.

Those of us who practice in this area have long suspected that the heretofore concealed process by which the ACOEM Mold Statement was created was flawed and biased, not only in its content and balance as an “evidence-based” guideline, but especially in its tone, which blatantly comes across as a “defense argument” to any attorney willing to read it. How can any advocate come away with any other impression when the same experts who were profiting from defense medical/legal consultations and testifying in mold-related litigation were incredibly selected by ACOEM to be the primary authors of its organizational position statement on this subject?

Dr. Craner’s critique has finally brought some light and balance to the issue. Construction defects and resultant litigation related to indoor mold will go on, but I strongly suspect the ACOEM Mold Statement will no longer receive the same level of reliance or respect that it has been unduly given up to this point by attorneys and experts. ACOEM, as an organization, has major credibility problems as a result of this document and would do well to follow Dr. Craner’s recommendations to restore organizational integrity and respect.

1. Craner J. A critique of the ACOEM statement on mold: undisclosed conflicts of interest in the creation of an “evidence-based” statement. Int J Occup Environ Health. 2008 Oct-Dec;14(4): 283-98.
2. Adverse Human Health Effects Associated with Molds in the Indoor Environment. Journal of Occupational and Environmental Medicine:Volume 45(5): 470-478 (2003).