Mold Plaintiffs Subject to Home Inspection

Profession:Holland & Knight LLP

By Gregory J. Johansen and Michael Starks (Orlando)

Originally published October 2004

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...

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