Preparation, Knowledge, Use of Experts Spell 12-0 Defense Verdict for HOA in Asbestos/Mold Trial

Where we started: In 2021, Kere Tickner and Michelle McCliman took over a matter that was originally filed in 2018. The case centered on the owner of a California condominium (built in the early 1970s) who disturbed asbestos in the unit when he sanded the walls as part of a remodel without testing for asbestos. Plaintiff also claimed that he was exposed to mold when his contractor opened up a wall/ceiling under a bathroom tub.

When Plaintiff informed the property management company (and co-defendant represented by a different firm) about the mold, the property manager sent out vendors to inspect the unit only to find the asbestos dust storm in the unit. Our client, the Homeowners Association (HOA), made the decision to perform a Procedure 5 asbestos remediation right away to protect Plaintiff and owners of nearby units, then informed Plaintiff that it would seek reimbursement for the remediation (pursuant to the HOA governing documents). Instead of working with the HOA to repay the remediation, Plaintiff simply moved out of the unit in May 2017 (shortly after he started his remodel) and never returned. He also stopped paying his mortgage and the HOA monthly assessments, which led to the bank foreclosing on the unit.

The owner claimed, through multiple allegations, that the HOA and property management were responsible for various adverse health issues he experienced as a result of alleged mold exposure. Plaintiff also argued that the source of the water intrusion that led to the mold was the building siding, and therefore, common area (i.e., the responsibility of the HOA). The vendors hired by the property management company determined that the source of the water intrusion that led to the mold was a Jacuzzi tub that Plaintiff improperly installed during a previous remodel of the unit. Plaintiff’s experts testified that he faced a lifetime of health effects from alleged toxic mold exposure and would need over $500,00 for lifetime medical treatments and monitoring alone.

Our strategy – plus more: When the case went to trial in August, 2024, the Plaintiff brought seven causes of action and a punitive damages claim against our client, the HOA, and its property management company. Once Plaintiff rested his portion of the case, McGlinchey’s trial team moved for nonsuit on four causes of action (fraud/concealment, negligence, negligent misrepresentation, and breach of fiduciary duty) and also punitive damages on the grounds that he had not and could not meet his burden of proof on those four.

The Judge granted the nonsuit as to the four causes of action but denied it as to punitive damages claim. This left only three causes of action (breach of contract, private nuisance and Intentional Infliction of Emotional Distress) and the punitive damages claim to go to the jury. Plaintiff had asked the jury to award over $2 million in total damages (not including punitive damages, which were bifurcated).

McGlinchey’s trial team (consisting of attorneys Tickner, McCliman, and Adam Van Korlaar, paralegals Zain Kazmi and Larissa Hannaoui, and assistant Elizabeth May) secured this resounding win through a combination of ultimate preparation, unassailable knowledge of the particular laws at play, knowledge of the science, and the retention of experienced experts. Their superior knowledge of opposing counsel allowed our team to deliver efficient, persuasive arguments that equipped the jury to side with the defense.

Upshot: More than three weeks of a very contentious and hard-fought jury trial culminated in a full day of deliberation. The jury came back with a complete defense verdict for our client and denied the punitive damages claim as well. Plaintiff’s polling of the jurors revealed they were 12-0 on all three causes of action in our client’s favor.