Jury Announces Defense Verdict in Mold Exposure Case

On May 29, 2018, a twelve-person jury, Santa Fe County, returned a verdict for Defendant, Leslie Dugan, in a case brought by two former residential tenants alleging injuries from toxic mold exposure at an apartment they rented from her.  Scott Hatcher and Jonathan Woods presented the defense of the case on behalf of Ms. Dugan.  Tyler Snyder and Jamie Rosingana leased an apartment from Ms. Dugan in Santa Fe from May 2013 through May 2015.  Ms. Rosingana alleged she was exposed to high levels of mold growth in the unit, thereafter developing allergic bronchopulmonary aspergillosis (ABPA).  She further alleged that she suffers life-long restrictions in pulmonary function as a result of this condition.  Mr. Snyder alleged similar claims, but his case was dismissed at the close of the Plaintiffs’ case on a directed verdict for failure to prove damages.

 

Plaintiffs brought their claims under theories of ordinary negligence and violations of the Uniform Owner Resident Relations Act, a statutory claim carrying the potential for attorneys’ fees to the prevailing party.  The Defendant denied liability, asserting she met the standard of care of a residential landlord in the State of New Mexico and that she did not violate any provision of the Act.  Further, Defendant, through expert Dr. Don F. Fisher, M.D., a highly regarded toxicologist and occupational disease specialist, argued that there was insufficient evidence to establish the diagnosis of ABPA, which was diagnosed by Ms. Rosingana’s treating pulmonologist, Dr. Vanessa Alvarez, M.D.  Dr. Fisher asserted there was insufficient evidence that Ms. Rosingana had an allergy to aspergillus fumigatus, light growth of which was found on bronchoscopy in Ms. Rosingana’s lungs after she moved out of the premises in May 2015.  Dr. Fisher stressed that without a showing of an allergy to this specific species of mold, the diagnostic criteria for ABPA was not met.  Dr. Fisher also testified that though there was mold growth at the apartment, the level of mold was insufficient to have resulted in the diagnosis of ABPA.  He offered alternative diagnoses of asthma, COPD, among others.  There was also no direct evidence that the specific species of aspergillus fumigatus was found upon environmental testing done at the apartment after the Plaintiffs’ vacated the premises.

 

The jury returned a verdict for Ms. Dugan finding she was not negligent.  Prior to that, the Court directed a verdict in Defendant’s favor on the Plaintiffs’ statutory claims.  The Defendant has available to her post-verdict claims for costs, as well as attorneys’ fees under the Act.