Mold Plaintiffs Subject to Home Inspection
Indoor Air Quality; Volume 2, Issue 2
October 28, 2004
Michael Starks - Orlando
In an opinion released in May 2004 called Hauser v. Volusia County Department of Corrections, 872 So.2d 987 (Fla. 1st DCA 2004), a Florida appellate court held that when a claimant alleges that he has suffered from toxic mold exposure at work the defense is entitled to inspect the claimant’s home for the presence of mold.
In Hauser, the trial court granted the employer/carrier’s motion to compel inspection of the claimants’ homes by certified industrial hygienists. The requested discovery was described in the motion to compel as follows: “Consultant will take photographs, as necessary, collect air and dust samples from various locations within and outside the home, observe the ventilation system and collect environmental data. He will need approximately five to six hours in each claimants home.” Id. at 989.
The appellate held that, as an initial matter, the trial judge did not err in finding that the employer/carrier’s request for an inspection of the claimants’ homes was relevant and reasonably calculated to leave the discovery of admissible evidence. The court stated that “[i]t seems patently obvious that because the injury suffered by claimants are alleged to be related to the environmental condition of their workplace (toxic molds and other organic substances), the environmental condition of claimants’ homes would also be relevant.” Id. at 989. The court held that the claimants had not met their burden of stating objections and setting forth with some particularity the reasons why an evidentiary hearing was needed. The court stated that, “Unless the objections set forth a claim of privilege, a trade secret or work-product, the party seeking discovery does not have to show good cause.” Id at 990.
The appellate court also stated that the scope of home inspection was proper. It was clear that the inspection would consist only of the collection of “air and dust samples,” observation of the “ventilation system,” and collection of “environmental data,” and that photographs would be taken “as necessary.” Id. at 990. The court further noted that the estimated time for inspection would be “approximately five to six hours in each claimant’s home.” Id. The court disagreed that this order contemplated “unfettered access,” and noted that nothing prevented the claimants or their representatives from being present at all stages of the discovery inspection, and further that any attempted actions by the inspector other than that encompassed by the motion and the order granting the motion would be impermissible and would necessarily be within the claimants’ right to prohibit based upon the claimants’ “right of dominion and control over their own homes.” Id at 990-91.
The appellate court stated that, “The privacy interest of a homeowner in the dust and air found in his home involves nothing that we can imagine in the way of ‘personal action and belief’ that might be considered ‘sensitive information about oneself.’” Id. at 991. The court stated that the claimants have no argument why they would have a need for privacy and confidentiality as to the air and dust samples from their homes that would tend to outweigh the need for determination of the presence of toxic molds or other harmful substances in their home environment. Id at 992.
As a final note, the appellate court rejected the claimants’ argument that the inspection would cause “material harm” that could not be adequately remedied on appeal. The court stated that the claimants did not suggest what, if any, evidence they would produce if given an opportunity to establish the likelihood of such harm at an evidentiary hearing.
For more information, e-mail Gregory J. Johansen or Michael D. Starks at gregory.johansen@hklaw.com and michael.starks@hklaw.com, respectively, or call toll free, 1-888-688-8500.