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October  2004

Cutting Edge

A Cure for Those Crying Panes

Well, my son just landed a new job. Can you guess what field? Yes, he is now a window salesperson. 
So, he comes into my office and says, “Dad, I need some tips on how to sell this warm-edge stuff! Our window has the warmest-edge spacer while my competitor’s does not. But we are asking a little more money for our window. It is not the least expensive window in town, so I need to convince my customers that a few dollars more is worth it. I can see that it improves the U value, a few extra points, but what else can I say that will sway the prospective buyer?”

So, I sat him down in front of the computer and pulled up google.com. 

“Just type in the word mold,” I said. 

The very first reference that appears is, “A Brief Guide to Mold, Moisture and Your Home,” sponsored by the U.S. Environmental Protection Agency (EPA).

“Sure, I’ve been reading in the trade magazines about all of the concern surrounding mold,” he said. “I read that potential health effects include allergic reactions, asthma and other respiratory problems. I also read that there is no practical way to eliminate mold and mold spores in the indoor environment. So what does all of this talk about mold have to do with warm-edge technology?”

“Click on the link!” I said. “Next, scroll down and click on moisture and mold prevention and control tips. Notice the caption, “moisture control is the key to mold control.”

Shown is a picture of a window pane with moisture accumulating on the inside surface of the window edge. Just below this picture is a bullet point, “If you see condensation or moisture collecting on windows, walls or pipes act quickly to dry the wet surface and reduce the moisture/water source.”

“Now son, do you think homeowners are concerned about mold growing in their homes?” “Well, it sure seems like it from everything that I’m reading,” he said. 

“So, here we have the EPA telling homeowners to get out a cloth and dry that moisture that is collecting on the window surface,” I said. “Now, do you remember that seminar I gave about warm-edge technology? What do you think will happen after Mr. or Mrs. homeowner dries the window?” 

“Well, believe it or not, I was paying attention. If I remember correctly, the wet window surface is caused by moisture from the air condensing onto the glass surface because it is colder at the edge, especially if a highly conductive metal spacer is used in the construction of the window. When it is cold outside and warm inside our homes, heat travels from where it is hot to where it is not, causing lower temperatures on the edge of glass surfaces. This in turn allows moisture from the air to condense onto the window surface. So, unless the homeowner opens the window to let moisture out of his house, which he probably does not want to do (because the furnace will kick on), the moisture is just going to reappear in a short while in the exact same area that he or she just dried.” 

“Unless, “ I said, “you could put something inside that window to prevent heat from escaping through the window edge. This would keep the inside pane of glass warmer and prevent the moisture from accumulating in the first place.”

“I don’t get it,” he said. “Then why doesn’t the EPA make mention of warm-edge spacers? Who wants to spend all day, drying their windows?” 

“Precisely, “ I said. “But that is the salesperson’s job. Now son, back to that sales pitch for windows featuring warm-edge technology … go and get some orders!” 


A Winning Defense

Recently, we successfully defended a local window manufacturer against a mold claim (see box, page 31). If you know you produce a good product you should be able to convince a jury. Based upon their experience, we have developed a list of tips for contractors, including:
1. Take Care of Customers: Prevention costs are less than one-third of litigation costs.

If there is a problem with mold or water intrusion, don’t turn away from the problem. Take care of your customers. Find out what they need and help resolve the situation. 

Get your suppliers and subcontractors involved at the start. It may be that a supplier’s component or a subcontractor’s work is the source of a problem. 

In that case, get the supplier or subcontractor to assist in the customer service effort, or perhaps 
to replace the defective work. Even if it is not entirely your company’s responsibility, customer service still ranks high on the list of avoiding litigation. 

A small percentage of customers will always sue no matter what action you take. A larger percentage of customers will not sue if you have attempted to take care of them and their needs, even if the problem is not ultimately solved. 

2. Document Your Efforts And Preserve Evidence: A well-documented case leads to quicker, less costly resolution. The presence or absence of a key item can mean the difference in convincing a judge or jury.
When a mold problem arises, find out as much as possible about the situation and document your efforts. Mold lawsuits, more than many other types of cases, are filed years after the first complaint of a water problem. Personnel change and memories fade. It is critical to document your efforts, observations and actions as soon as possible after you make this effort. 

Keep physical evidence (including wood or other components removed from the house) in a secure, clean and dry environment. Photograph the areas affected and the items removed from the building. Document the chain of custody and transfer from the building to the storage area. Preserving your documented efforts may be critical to your defense years later. 

3. Treat Former Employees Well: They could become the witnesses of the future that save your company.
There is a high degree of turnover in the construction industry. How you treat your soon-to-be former employee may have the greatest impact on your chance of success in a lawsuit filed down the road, if you need to later call upon a former employee as a witness. Treat your employees well, even when you have to let them go. 4. Select Mold Remediators Carefully: These professionals can mediate toward a win-win solution.

Create a list of trustworthy, reputable remediators you can call upon. If the owner has tested the property for levels of mold, you should hire a reputable environmental consultant. Qualifications matter. Ascertain the consultant’s experience in indoor air quality or water intrusion investigations. 

Testing consultants may have a conflict of interest if they also offer mold remediation services. Find a consultant who only tests the indoor environment. 

5. Observe Customers’ Personal Injuries: Property damage is measurable, ascertainable and manageable. Personal injuries are not!

When a customer complains about a mold problem, the immediate concern is fixing the construction problem. It is only years later when a lawsuit is finally filed that complaints about illness and personal injuries creep into the claims. 

In mold cases, plaintiffs often claim illnesses such as fibromyalgia (chronic fatigue lasting more than six months), cognitive impairment and chemical sensitivities, which are difficult to test objectively. These conditions depend on an individual’s subjective complaints. 

To the extent that your customer service representatives are in contact early with potential mold litigants, observe the person’s physical actions and demeanor. Is the person active, able to show you the problem areas and capable of explaining the history of the problem? Jot down notes regarding conversations and observations to document the situation. Be aware that personal injuries may later become part of the lawsuit. 

6. Document Asthma, Allergies and Pets: Plaintiffs often minimize their own conduct or conditions under their control in order to maximize their potential recovery in a mold lawsuit against you.

Some claim that mold can exacerbate asthma and allergies. There are many other asthma and allergy triggers. Document your observations as to the living or working environment, such as indoor pets (where they sleep), open windows in the spring and fall, indoor plants, excessive dust and percentage of carpeting in the building. 

Window Supplier Found Not Liable for Mold

Our firm recently defended a regional lumber and window supplier in a jury trial in a mold lawsuit brought by homeowners alleging personal injuries and property damage.

A Johnson County, Kan., family of five alleged they were forced to move from their home because mold in their house was making them sick. They claimed their house suffered numerous and continuous leaks since it was constructed in 1995. The leaks first began in an upstairs bathroom the week plaintiffs moved into their home. Later, the fireplace, front door, basement, great room ceiling and the windows all leaked during storms throughout the first five years. The family asked their builder to repair the problems. In 2000, the builder finally notified the window supplier of a problem with the windows. As an accommodation, the window supplier agreed to replace the windows. During the process of replacing the windows, the homeowners found some mold. Six months later, the family hired a mold testing consultant. Within three days of receiving the verbal recommendation of the consultant, the family vacated their home.

Prior to the filing of the lawsuit, the builder agreed to buy the house back from the homeowners. The homeowners then sued both the builder and the window supplier alleging that they suffered numerous illnesses including cognitive impairment, fibromyalgia, asthma, allergies, upper respiratory infections and repeated bouts of pneumonia. Plaintiffs also claimed damages resulting from having to move out of their home, including pain and suffering, and having to rent an apartment. Weeks before the scheduled trial, the builder settled a second time with plaintiffs leaving the window maker as the sole remaining defendant. Spencer Fane won dismissal of the family’s products liability claim and several more serious medical claims based on a summary judgment motion.

At trial, the window supplier defended the claim that the windows were assembled negligently. The builder testified for the family, claiming that the windows were the sole cause of water leaks in the home. The supplier showed the jurors the actual windows removed from the home in 2000, pointing out the lack of physical evidence of water or wood rot damage. Plaintiffs presented medical evidence from a doctor from Albany, N.Y., a substantial part of whose practice involves testifying nationwide on behalf of plaintiffs regarding the toxic effects of stachybotrys and other molds.

The family’s scientific evidence was countered by a board-certified local allergist, a toxicologist and a board-certified occupational and environmental specialist from the University of Kansas Medical Center.
Finally, the supplier presented testimony from a former employee regarding the assembly of the windows and the alleged water damage in the home. The jury ultimately found that the supplier was not responsible for plaintiffs’ claims.

The case is significant because it is one of the first jury trials in Kansas involving allegations of personal injuries resulting from mold exposure in a home. While other parts of the country have been inundated with similar lawsuits; this region has not yet experienced as many cases. A jury trial verdict in favor of the defense may deter potential mold litigants from bringing these types of claims against the construction industry in this region. 


Stop Being Stupid
An Engineer Says the Building Industry Needs 
to Stop Doing Stupid Things When it Comes to Mold
by Tara Taffera

Mold. Everyone’s talking about it so “newsworthy” and “controversial” are words you might use to describe this topic. Interesting, entertaining and humorous are probably not words that would immediately spring to your mind when referring to mold. But Joseph Lstiburek, Ph.D., P. Eng., and principal of Building Science Corp., definitely made the topic of mold just that—interesting, entertaining and humorous—when he spoke at the winter meeting of the American Architectural Manufacturers Association.

Lstiburek, a forensic engineer who investigates building failures, and is recognized internationally as an authority on moisture-related building problems and indoor air quality, spoke about “Why Buildings Make you Sick?”

Why Now?
“Why now?” was the question Lstiburek posed to attendees. 

“Some people say it’s because of an irresponsible press and scumbag attorneys,” he said.

But he countered, “But we’ve always had an irresponsible press and scumbag attorneys.”

Then he gave the real answer.

“It’s because we have more mold. Duh!”

“Mold is a water problem. No water, no mold.”

“If I hear one more time, keep your building materials dry, I will puke,” he said. “We build outside—with wet stuff.”

Lstiburek ruled out the argument from many that we have more mold because of the complexity of today’s building designs. He added simply that windows and roofs leak. Testing done by his firm found that windows actually leak 10-20 percent less than they did 20 years ago.

Stop Being Stupid
So how do we prevent mold? Lstiburek says it’s not as complicated as the building industry has made it. He says we have to figure out how to keep things dry and “stop doing stupid things.”

One practice he refers to as stupid is a hotel that is designed with vinyl wallpaper and air conditioning in the room. 

“That will hold water. Then they put in a window that leaks,” he said. “The only thing more stupid than a hotel is a school.”

He adds that the building codes don’t help in this area. 

“The building codes institutionalize stupid things. Putting vapor barriers on the inside of a building is a stupid thing.”

According to Lstiburek, what mold wants is the carbon in sugar/cellulose. Cellulose is in the plants. The plants have to be dead. We build out of dead plants and the mold comes with it.

“If I read one more time, how to build with mold-free materials I’m going to puke because it’s not possible,” he said. 

According to Lstiburek, when the rate of wetting is greater than the rate of drying you have accumulation. You don’t have a problem until the quantity of accumulated moisture exceeds the storage capacity.

Mold Remediators
Lstiburek had a few choice words for mold remediators. 

“All the gear people use to get rid of mold, I view that as a tax on stupid people,” he said. “Last week they were janitors, now they are mold remediators. They know nothing about mold and they’re telling building professionals what to do.” 

He also joked about the airborne sampling that is done to find mold.

“Airborne sampling for mold is colossally stupid,” he said. “If you see it or smell it you have it.”

“What if it’s in the wall? Look in the wall. Look by the windows.”

“Find the water and you will find the mold,” he said. 

So who should look for the water?

“A construction professional. Yes. An industrial hygienist. No.”

So how do we stop being stupid?

Lstiburek says we live in an air-conditioned climate so we cannot be looking to the Europeans and Canadians for how to build buildings. He adds that what the building industry needs to focus on is drying.
Lstiburek says it’s all actually pretty simple:
• Find the water;
• Find the mold;
• Clean up the mold;
• Dry the building; and
• Make sure it doesn’t happen again.

“The presence of mold doesn’t constitute exposure to mold. There’s no science to this. You need to make it hard on them [lawyers] to get your money. You should be offering installation instructions.”

He also stressed the importance of drainage. 

“All claddings leak. We want it to go to the flashing,” he said.

He then offered attendees two slogans that he made them say aloud repeatedly. 

“If you want to save cash, flash.”

“Don’t be a dope, slope.”

So if it is as easy as Lstiburek says the building industry needs to work together to stop making poor choices and building structures that invite moisture and mold. 

“We’re all in the same business,” he said. “Maybe you can make strategic alliances with building partners.”
Hopefully this occurs and in a few years the building industry will be described as making smart decisions instead of stupid ones. 


"Get it OUT of Here!"
Tips for Suppliers to Use With Customers on 
Preventing Mold and Finding Companies to Get Rid of It.
by Alan Goldberg

Dealing with mold and moisture is a problem that is growing as fast as spores that multiply in wet and dark areas. Mold can be found everywhere and it doesn’t take much—moisture, for the most part—to create a congenial atmosphere for mold to thrive. The question is, how much does moisture or condensation on windows contribute to mold?

“On occasion, we may get a call about mold and, even though it does not relate to our windows, we will send information from the EPA or other professional contractors on effective ways to address it. The issue of mold has more to do with high moisture content in the house then with, for instance, some accumulation on a window frame,” said Terry Rex, director of marketing, BF Rich. 

Another window and door manufacturer said they really don’t receive calls on mold. But in one of their brochures, the company provides tips for combating condensation and they explain why homeowners should care about it. The brochure points out that condensation (in almost all instances) is not the result of a defect in the window but has to do with a surface temperature that is lower than other visible surfaces. It suggests that condensation is generally a warning of a humidity problem; but, “if left unchecked, a condensation problem in your house may cause wood to rot, paint to peel … and mold to grow.”

Eliminating Mold
So, what should you, as a window manufacturer, know about mold and what should you tell consumers when they start asking you about this subject?

What homeowners should do when mold is discovered depends on how large an area is affected by mold and whether it is visible. Smaller areas can generally be handled by the homeowner. 

“We get a lot of calls from homeowners who don’t know what to do,” said Harry Friedman, owner of Mold Busters in Skokie, Ill. “I tell them if the area is 100 square feet (which he says is the EPA guideline for self-remediation), you can do it yourself,” 

He offers the following tip:
Rule number one is to determine the outside source. Mold grows from two things: an organic food source or moisture. Given the right conditions, he pointed out, mold can grow back within 72 hours.
In its website, www.
epa.gov/iaq/molds/index.html, the EPA suggests many ways to control moisture in the home:
• Fix leaks and seepage;
• Put a plastic cover over dirt in crawlspaces to prevent moisture from coming from the ground;
• Use exhaust fans in bathrooms and kitchens to remove moisture to the outside (not into the attic);
• Turn off appliances such as humidifiers or kerosene heaters if moisture appears on windows or other surfaces;
• Use dehumidifiers and air conditioners to reduce moisture in the air;
• Raise the temperature of cold surfaces where moisture condenses; and
• Pay special attention to carpet on concrete floors. 

Also available from the EPA is “A Brief Guide to Mold, Moisture and Your Home” which can be found on its website. Once the source of the moisture is eliminated, Friedman suggests these simple steps for removing the mold. 
• Purchase a mask;
• Use rubber gloves;
• Apply a 10-percent bleach solution (Although Home Depot carries a product for mold removal, they also recommend a bleach solution.); and
• Dry the surface thoroughly.

Hiring a Remediator
For moldy areas larger than 100 square feet, clean-up should be done by a remediation company. Before contracting with anyone, experts say it is best to contact a local consumer affairs agency or Better Business Bureau to determine if there have been problems with the contractor. Ask for examples of removal, check references and use another company to do a final inspection.

One way to locate a remediation company is through certification programs. Although many exist, not all certification programs are created equal. Three organizations, in particular, have reputable certification programs that follow existing standards for indoor quality: American Indoor Air Quality Council (AmIAQ); The Institute of Inspection, Cleaning and Restoration Certification (IICRC); and the Indoor Air Quality Association, Inc. (IAQA).

The American Indoor Air Quality Council is a non-profit association that serves IAQ managers, technicians, investigators, consultants and professionals. It promotes awareness, education and certification in the field of indoor air quality. Seven certifications are offered with special workshops on strategies for mold sampling and understanding HVAC as it pertains to indoor air quality. It has approximately 3,000 paid members and 200 corporate sponsors.

The Institute of Inspections, Cleaning and Restoration (IICRC) is a non-profit certifying body that represents more than 3,300 certified firms and 27,590 certified technicians in 11 countries. It sets standards for inspection, cleaning and restoration, with participation from the entire industry. IICRC is owned by 16 regional and national trade associations. Certification classes are taught in many categories. It provides a number of guides including one for professional mold remediation. 

The Indoor Air Quality Association (IAQA) is a non-profit, multi-disciplined, international organization dedicated to promoting the exchange of indoor environmental information through education and research. Its Certified Mold Remediation (CMR) program offers training, testing and credentialing for professionals who identify and remove indoor microbiological contaminants. A mold remediation worker training course is for front-line workers and group leaders working under the direction of a CMR. More than 2,400 certified remediation companies are listed on the IAQA website.

One of them is Mold Busters, which has been certified since it began three years ago.

“I believe that mold is one of the most litigated areas in the country,” said Friedman. “We wanted to service 
our customers properly and not leave ourselves open to liability.”

He speaks highly of the program and the impact ofcertification.

“I thought it was both detailed and impressive. Being certified has made a big difference, not necessarily in referrals but in giving the homeowner some sense of reinforcement,” he said.

Most of the remediation projects are residential, in attics or basements. Each one is different, he says. The average cost ranges from $3,500 to $12,000.

“If the mold problem is serious, we will recommend an industrial hygienist* who will sample and write a protocol (a plan for mold removal). After the job is completed, the hygienist will do testing to be sure mold is at an acceptable level,” he added An acceptable level is when the mold count is the same for the inside and outside.

Some hygienists belong to the American Industrial Hygiene Association (AIHA), the world’s largest association of occupational and environmental health professionals. They come from government, labor, industry, academia and the private sector. 

Although mold is a growing problem, it does not have to become a member of the household. By following recommendations for cleaning smaller areas and taking precautions to prevent moisture in areas that are prone to a build-up, mold can be controlled if not eliminated. And where outside help is needed, there are organizations to provide the names of certified companies to do the job properly. 

“I get calls and e-mails every day from people who need help with mold remediation and I am able to refer them to our list of certified remediators on our website,” said Farzana Shakir, certification director, IAQA. 


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