SPORE WARS 


After 10 minutes of conversation in his apartment, John Godfrey tells me he needs to leave. He's having trouble breathing, he says, and his skin is itchy and irritated. "I'm getting dizzy."

Though you wouldn't know it, Godfrey hasn't lived in this apartment – a beautiful three-bedroom unit in a complex now called The Hamptons at MetroWest, overlooking Turkey Lake – since October. Most of his family's belongings, including furniture and clothing, are here, untouched for months.

On July 26, when Godfrey took a job as the complex maintenance supervisor, it was called Park Avenue at MetroWest. In December, the complex was purchased by Tarragon South Development Corporation and Sunvest Communities, Inc., a partnership that renamed the 63-building, 746-unit property and began selling the apartments as condominiums in early January. As part of his compensation package, Godfrey was offered a free lakefront unit on the complex's southern edge.

It seemed like a good deal for Godfrey. Usually, the complexes he works for don't offer lakefront property to their maintenance people. Within weeks, however, the shine wore off Godfrey's job – and his apartment.

Godfrey's job included showing the complex to prospective buyers. But, he says, he could only show certain units. When he asked why, management refused to give him an answer, according to documents contained in a lawsuit Godfrey later filed against the complex's former managers, Epoch Management.

Godfrey says he was besieged by tenants complaining of water leaks after last summer's hurricanes; there were as many as 500 repair orders for water damage, according to a statement he gave to a judge in response to the complex's current management's attempts to evict him for not paying rent. He says he heard from scores of residents who complained of feeling sick for no apparent reason, including him, his wife, Donna, and his 20-year-old son, Ryan.

Godfrey's apartment, according to interviews and his lawsuit, had water damage after an irrigation leak soaked the carpet and walls before he moved in. Like the tenants he heard from, Godfrey and his family constantly felt nauseous and lethargic, and sometimes had trouble breathing.

After research on the Internet, Godfrey believes he found the problem: mold. Specifically, so-called "toxic mold." While allergic reactions to mold are common and produce health problems such as hay fever, toxic molds can, some scientists believe, severely affect a person's health.

Godfrey says the water damage in his apartment meant that he and his family were subjected to this toxic mold. In his lawsuit, he claims other apartments in the complex face a similar threat due to "inferior construction (e.g., windows were improperly installed and insulated and there is only one layer of felt wrap in the exterior walls."

What's more, Godfrey's suit claims he "discovered that the employer had purposely purged and/or was in the process of purging its computer records of any mention of water-related damage and/or mold problems to the apartment complex's apartments and that the maintenance workers were instructed by the employer to note any new water-repair jobs on note paper only, which was then thrown away by the employer to hide any evidence of water damage or toxic mold problems at the apartment complex."

Instead of fixing mold damage, he says, The Hamptons' maintenance crew used bleach and paint to cover it up. His conclusion: The complex knew it had a problem, but wanted to keep the problem a secret from prospective buyers. (One development company passed on the property before Tarragon bought it.)

On Sept. 24, Godfrey says he was instructed to treat mold damage to a recently vacated apartment – vacated due to the tenants' "mysterious" illness. While doing the work, he found himself nauseous and having trouble breathing. He complained to management, and warned the apartment complex that it might be violating the Occupational Safety and Health Administration's guidelines by forcing him and his fellow maintenance workers to clean up toxic mold.

When Godfrey reported to work the next Monday, he was fired. He was given two weeks to move out of his apartment. On Oct. 11, he sued, claiming he was wrongfully terminated and that the apartment complex was committing fraud by trying to hide toxic mold damage. His suit is still in preliminary stages; on Jan. 31, a judge gave Epoch 20 days to respond to Godfrey's charges.

"The employer knew that `Godfrey's` apartment was not habitable and that it made any person who resided in `it` for any length of time ill," an amended complaint states.

In October, Godfrey's lawyer, Larry McGuinness, filed a class-action suit on behalf of all current and former residents of Park Avenue at MetroWest, claiming the apartment complex had knowingly subjected them to toxic mold. That suit must survive pending motions to dismiss, and be certified for class-action status before McGuinness could represent all of the complex's present and former tenants in a single, presumably multi-million dollar, lawsuit.

In December, Godfrey borrowed thousands of dollars from his in-laws and sought out an allergist in Texas to test the effects of the toxic mold on his family. The doctor recommended $70,000 worth of additional tests, and told him that his family showed signs of neurological damage. Treatment, Godfrey says, could cost more than $1 million.

On Dec. 21, after months of threats, Tarragon filed an eviction notice for Godfrey, who has not paid his rent since October. Tarragon's lawyers claim there was an "oral agreement" that Godfrey would pay $1,300 a month after he was sacked, and are now seeking $3,900 in back rent. Godfrey has refused to leave, saying that his possessions in the apartment are contaminated and that going in to retrieve them would make him sick. In January, he filed papers to fight the eviction.

The lawsuits thrust the upscale MetroWest development into the heart of the national mold debate. Critics say the problem is overstated, and refer to toxic mold as "the new asbestos" for trial lawyers. Others in the scientific community say that toxic mold is a very real health problem, one that builders will grapple with for decades. If toxic mold is as bad as plaintiffs such as Godfrey claim, then virtually no building – especially in hot, humid Florida – is immune. Factor in the three hurricanes that deluged central Florida this summer, and you've got a recipe for mold. To date there's no empirical data proving the oft-claimed health effects, which are said to include migraine headaches, memory loss, cognitive impairment and pulmonary problems.

But for Godfrey and his family, there's no doubt toxic mold is real. "You hear I struggle for words," he says. "That's part of the brain damage. I have bumps and sores on my lymph nodes. I have urinary problems, headaches, gastrointestinal problems. My wife had some of the same rashes."

His family had none of these problems before he took the job at Park Avenue, he asserts. That's all the proof he needs.

(HIGH) CLASS ACTION

On a chilly Wednesday morning I toured The Hamptons as a potential buyer. I wanted to see how the condos were being presented to buyers, not to the news media.

My tour guide was a sales manager with Coldwell Banker, the company selling the units. My girlfriend, who lived in Park Avenue for two years beginning shortly after it opened in 2001, accompanied me. She had lived in the same building as Godfrey and had no unusual health problems.

If you've got the money, and allegations like Godfrey's don't concern you, The Hamptons are indeed a beautiful condo complex. There are two pristine swimming pools, a white sandy beach area adjacent to Turkey Lake and an indoor basketball court. The units are spacious. Some have vaulted ceilings that make even the smallest one-bedroom condos feel spacious.

This kind of luxury is pricey. A one-bedroom runs between $151,000 and $162,000; a three-bedroom costs up to $233,000. Add $10,000 to it if you'd like a garage, and $20,000 if you want to live on the lakefront. Still, they are selling well, our tour guide tells us. My tour was about a week after Tarragon began selling the condos. By then, nearly half of the first phase (which constitutes half of the 746 units Tarragon bought) was already sold, bought either by newcomers or apartment dwellers who didn't want to move.

"These buildings look pretty well put together," I said to my salesman, contrasting them to the thin three-story layers of plywood you see in all over town. "How did they survive the hurricanes? Was there any water damage?" I told him I was particularly worried about mold, and asked if The Hamptons had a problem.

"No, not at all," the agent responded, then backtracked a little. Given the conditions in Florida, he said, it was impossible to say the buildings were free of mold. But if there is a widespread problem at The Hamptons, he didn't mention it. And he certainly didn't mention the existence of Godfrey's lawsuit, or the class-action lawsuit.

Mark Fenning and his wife, Shannon, are the lead plaintiffs in the class-action suit. Right after they moved into Park Avenue in September they noticed a weird smell. The rental agent assured them the odor was due to the fact that a prior tenant smoked. Fenning says the dining area caused his eyes to water and mouth to burn. Breathing was often difficult. When Hurricane Jeanne hit at the end of that month, Fenning says so much rain leaked through the windows he used 28 rolls of paper towels to mop it up.

Fenning says he noticed a foul smell and a giant bubble in the paint in his bathroom. He peeled the paint off in one strip, revealing a black mass on the wall. He called maintenance.

Godfrey answered the call, and promised to bleach and paint over the problem area, as he had done across the complex. But Fenning thought he was dealing with mold. An existing medical condition – adhesive arachnoiditis, an inflammation of the membranes surrounding the spine – may have made him more susceptible to mold's negative effects, he says. He bought a home mold test kit, which he says confirmed his suspicions. Fenning reported the results to the complex's management, but says they did nothing.

After Park Avenue fired Godfrey, the former maintenance manager slipped Fenning a note, telling him he'd been fired for voicing his concerns for the way the complex handled mold problems. Godfrey had his apartment tested as well. The tests found high amounts of potentially toxic molds as aspergillus, penicillium, paecilomyces and chaetomium, particularly in Godfrey's apartment, according to his lawsuit.

"`EMSL Analytics, Inc.` tested it," Fenning says. "They showed us the results, and said, 'You've got to get out of there.'"

Fenning, who once suffered a broken neck and is now disabled, says all he wanted was for Epoch to fix the problem or pay to help him move out. Epoch, he says, didn't respond. "They know in the sales and rental office there's mold in our places," he says. "Nothing's ever happened." (Epoch Management did not return calls for this story.)

In a Jan. 27 Orlando Sentinel story, Epoch vice president Kyle Riva said the Fennings and Godfreys didn't cooperate with the company's efforts to fix isolated problems. A Tarragon vice president told the Sentinel that his company had inspected the property before buying it and hadn't found any problems, and that all buyers would be issued certificates declaring their units were mold-free.

Theresa and Bob Downing's second-floor apartment is a few buildings down from the Fennings'. They have lived there since the complex opened in 2001, and until this summer had no problems. On the Monday afternoon I visited, Bob Downing was in the hospital. He awoke that day with a pulse at 167, and his lung capacity was diminished. Bob Downing has emphysema, and since October, Theresa Downing says, his lung capacity has plummeted.

"He doesn't smoke," she says. "He hasn't smoked in six years."

In October, Theresa Downey took an extended trip out of town. She returned to find large black mold swaths covering her garage, and more mold in a bedroom and a closet. She called Epoch to fix it. At first, she says, management told her it was mildew. But, as in the cases of Godfrey and Fenning, environmental tests later showed her problem to be mold. Maintenance workers bleached and painted over the spots, she says. After she complained, Epoch gave the Downeys a second garage to store her belongings.

Her husband's emphysema worsened, and at first doctors were stumped. Theresa Downey mentioned the mold, and the doctors told them to leave as soon as possible. Like the Fennings, the Downeys are plaintiffs in the class-action suit. Also like the Fennings, they're planning to move.

KILLER FUNGUS?

Winning the lawsuits won't be easy. First a judge has to rule that all current and former residents of the complex are eligible to join as plaintiffs. But in that case, and in Godfrey's suit (he's not part of the class-action suit) there is a more difficult challenge.

"First you have to prove there's mold," says Thomas Shahady, who represents Epoch in the class-action suit. While he called it premature to discuss the case in depth, Shahady does plan on filing a motion to dismiss. "They're going to have a hard time proving their case. I don't think Tarragon's dumb enough to spend $90 million on the project if it's full of mold."

And even if the mold is real, proving its adverse health effects is another battle. Scientists, in fact, are divided on the issue of toxic mold. "Here's the bottom line with this," says Nicholas Money, a professor at the University of Miami, Ohio, and author of Carpet Monsters and Killer Spores: A Natural History of Toxic Mold. "One thing is it may or may not be possible to demonstrate there was a problem in their home. Demonstrating this person's illness is a result of exposure to mold growth, it's very, very tricky. In fact, at this point beyond the fact that mold spores can produce allergies in certain individuals, to go beyond that the science isn't really advanced to the point where you can demonstrate a causal link. … I've heard many cases like `Godfrey's`. I haven't heard any of them stand up in court."

Godfrey's lawyer, naturally, has a different opinion. "I think with any sort of new causes of action or new claims, you're gonna have various viewpoints," McGuinness says. "One would hope, as it did with smoking or asbestos, that the truth comes out one way or another."

Everyone agrees that mold can cause allergic reactions. Whether or not it is "toxic" is where reasonable people disagree. Not surprisingly, business groups with the most to lose from potential toxic mold cases say it isn't an issue.

The National Association of Home Builders says media reports to the contrary only unnecessarily frighten the public. The insurance industry has reported toxic mold claims in the billions of dollars, according to a 2003 report commissioned by the U.S. Chamber Institute for Legal Reform and the Center for Legal Policy at The Manhattan Institute. Texas insurers alone paid $1.2 billion in 2001.

In the 1980s, media reports began suggesting that workers across the country were developing strange illnesses due to "sick buildings." In 1994, the Centers for Disease Control and Prevention concluded that mold caused a rare bleeding-lung disorder in eight Cleveland babies. In other words, mold caused the babies' homes to be sick, and consequently, caused their lungs to bleed. After a swarm of publicity, the CDC re-evaluated the first report, and in 1999 reversed its decision. Mold, the CDC decided, wasn't necessarily to blame for the babies' lung problems.

Nonetheless, reports of mold-related lawsuits poured in. Even celebrities like Ed McMahon, Erin Brockovich and Bianca Jagger got in on the action, winning multimillion-dollar cases.

In spring 2004, a study released by the Institute of Medicine at the behest of the Centers for Disease Control and Prevention found that while mold can cause respiratory problems and asthma, there wasn't enough proof to conclude that it was responsible for neurological problems, cancer, reproductive problems or the multitude of other sins for which it has been blamed.

"This is what people do not understand," says Doris Rapp, a retired pediatric allergist and author of Our Toxic World: A Wake Up Call. "Molds can affect the brain. If `scientists say the question of toxic mold is` iffy, they don't know what they're talking about. There is no doubt in my mind molds can affect any part of the body."

Cheryl Goers recently formed the United States Toxic Mold Advocacy Network, and is pushing for The United States Toxic Mold Safety and Protection Act, a bill slated to be introduced this congressional session by Rep. John Conyers, D-Mich. The bill would, in part, cover toxic mold insurance through the Federal Emergency Management Agency. Goers, a lawyer, formed the group after she says she was exposed to toxic mold while remodeling her mother's Mississippi home and developing severe health problems.

"The growth of 'toxic mold' is becoming a problem of monumental proportions," according to a presentation Goers' nonprofit e-mailed to me. "Exposure to mold growth in residential, public and commercial buildings is believed to have caused serious medical conditions. … Estimates predict that mold contamination will pose a greater health risk to the general public than lead, asbestos and radon combined."

Of the up to 200,000 kinds of molds, only about three dozen are considered toxic, the advocacy group's report says. Toxic mold is most dangerous for young children, the elderly and those with immune deficiencies.

So is toxic mold "the next asbestos," as skeptics claim? "That's what the lawyers call it," says Ray Slavin, the head of the division of allergy at St. Louis University School of Medicine. "It's better than asbestos. Anywhere where there's heat and water, there's going to be mold."

Does that mean that people like Godfrey are suffering neurological harm? "No, I don't think so," Slavin says. "There's no evidence that exposure to mold can cause those problems."

McGuinness says his clients' case isn't only about mold. "The way I perceive it, in this particular case, it started over trying to get them to take responsibility, primarily for an employee we thought was being treated badly," McGuinness says.

In its first motion to dismiss Godfrey's lawsuit, Epoch didn't even cite mold. Instead, it argued that Godfrey's contract mandated that any dispute be sent to binding arbitration, not a jury trial. After a closed-door hearing on Jan. 31, McGuinness said there would likely be an evidentiary hearing on the arbitration clause of Godfrey's employment contract, which he claims he never signed.

The Godfreys say they don't want money, only justice, and treatment for the maladies they ascribe to their stay in Park Avenue. All the money in the world won't replace their health, John Godfrey says. Right now, he's too sick to work. And since he was fired, he doesn't have insurance, so there's little hope of him and his family getting the medical treatment they need without either a favorable verdict or settlement.

"I used to assume people in situations like ours were the type to overreact or wanted to get something for nothing," Godfrey wrote in his statement fighting his eviction. "Boy, what a humbling change of view."

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