Lawsuits can proceed over mold in military housing
NORFOLK, Va. — A judge has ruled that a group of lawsuits can proceed in federal court alleging a constellation of ill health effects from mold in military housing.
Senior U.S. District Judge Robert Doumar’s ruling, issued Wednesday, opens the door to what could be many months of litigation with 100 or more plaintiffs seeking millions of dollars in damages, attorneys in the cases say.
The lawsuits allege a wide variety of mold-caused illnesses ranging from allergic reactions and respiratory distress to immune system suppression and brain injury.
The litigation will traverse relatively new legal terrain on two fronts, exploring evolving medical research into mold’s health effects and testing the limits of a recent push by the military services to privatize base housing.
The defendant in the cases is not the government but Lincoln Military Housing, a Texas-based company that manages about 4,400 rental units in the Virginia region in a public-private partnership with local military bases.
Lincoln signed a 50-year lease with the Navy in 2005 under a 1996 privatization initiative aimed at maintaining and improving the military’s aging housing stock.
Doumar’s ruling turns back an effort by Lincoln’s attorneys to get the mold cases thrown out before trial. Most of the plaintiffs’ claims, except those alleging fraud, were allowed to stand.
Litigation involving private entities carrying out what used to be government functions is a still-developing area of the law.
One manifestation of the trend is secrecy. Lincoln’s lease with the Navy and numerous related documents have been filed under seal to prevent proprietary information from being made public. Under the judge’s orders, some material provided by Lincoln, classified as “highly confidential,” can’t even be disclosed by the plaintiffs’ attorneys to their own clients.
At the moment, the cases in federal court encompass 11 plaintiffs from four Lincoln-managed complexes: Shelton Circle and Sandpiper Crescent near Joint Expeditionary Base Little Creek in Virginia Beach, Norwich Manor outside Norfolk Naval Station, and Musket Road near Fort Eustis.
A dozen more cases have been filed in state court and are likely to be consolidated with the federal cases. In addition, dozens more potential plaintiffs are waiting in the wings, according to the lead plaintiffs’ attorney, David Bailey of Richmond.
Bailey is a former state environmental regulator and former Virginia director of the Environmental Defense Fund.
Lincoln has been negligent in responding to tenants’ concerns about mold, Bailey told the judge at a hearing in May.
“Lincoln hasn’t changed their way of doing business,” he said. “My phone still rings every day. If anything, it’s gotten worse.”
Connie Bertram, a Washington attorney representing Lincoln, countered that the company has undertaken an aggressive program of inspection and remediation and has achieved high scores on tenant satisfaction surveys.
Those suing the company are “a very vocal, very small minority,” she said.
The lawsuits are full of “speculative and vague allegations,” Bertram told the judge.
The most common illnesses that have been directly related to mold exposure are asthma and inflammation of the nasal passages caused by exposure to mold’s airborne fungal spores. Symptoms include coughing, sneezing, congestion, sore throat, hoarseness and shortness of breath.
Other reported effects include skin rashes, headaches, fatigue and eye irritation. In addition, there is some evidence – still inconclusive – that mold can cause neurological effects such as memory loss, difficulty concentrating, and personality changes.
A few decades ago, some of the symptoms now attributed to mold exposure were lumped under a vaguely defined condition dubbed “sick building syndrome.” Today’s term of art is “damp indoor spaces,” reflecting the belief that many of the problems are caused by inadequate moisture control.
Attorneys on both sides of the litigation say the chances of a pre-trial settlement are remote.