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The Delaware Superior Court has denied class certification in one of only a handful of lawsuits nationwide to address whether mold cases should be tried on an individual or a class basis. Three tenants who were forced from their apartment buildings in Elsmere, Del., due to alleged mold growth and other environmental hazards filed suit in late October 2002, according to court documents. The suit is captioned Manuel v. Elsmere Park Club. The suit was the first attempted class certification of a mold case in Delaware, Douglas Schleicher of Klehr, Harrison, Harvey, Branzburg & Ellers in Philadelphia said. Schleicher, with Klehr Harrison partner David Eagle, represented Elsmere Park Club and LCL Management, which, together, owned and operated the Elsmere Park Apartments when the plaintiffs were required to find alternative housing. The apartment complex has since been sold, and the purchaser has renovated portions of the complex and is now leasing units, Schleicher said. According to court documents, 38 of the 39 apartment buildings in the complex were condemned by the town of Elsmere in early October 2002. The town ordered approximately 650 people to vacate 152 units as a result of the condemnations, the documents said. Schleicher told the Delaware Law Weekly that Manuel is one of the first cases nationwide to address how mold develops in a residential setting, what kinds of claims plaintiffs can make regarding mold growth in residences and whether such issues should be addressed on a class or an individual basis. “This is an important victory for parties defending claims relating to mold growth,” Schleicher stated in a news release. “It shows that careful investigation and explanation of facts and legitimate science can overcome the mold hysteria that has become rampant over the last couple of years.” In denying class certification, Judge Jan R. Jurden determined that plaintiffs Ricky Manuel, Carla Kees and Catherine Kellam failed to demonstrate that there were questions of law or fact common to the proposed class members, that their claims or defenses were typical of the claims or defenses of the putative class, or that they would adequately protect the interests of the class. All three showings are required for class certification under Superior Court Rule 23(a), court documents said. According to a court transcript of Jurden’s decision, Jurden told the parties that though she was denying certification, she was not doing so lightly. “I am concerned about the plaintiffs’ alleged problems and their eviction,” Jurden said when she rendered her decision. “However, I just do not feel that the plaintiffs have met the burden of demonstrating that each of the four elements of Rule 23(a) have been satisfied.” In addition to the three requirements that Jurden said the plaintiffs were unable to satisfy, class certification requires that the putative class members be “so numerous that joinder of all members is impracticable.” According to court documents, the defendants did not contest the numerosity of the potential class. In their complaint, the plaintiffs alleged that the case arose in 1989, when all of the apartment buildings that were later condemned were inundated with floodwaters from Hurricane Hugo. The basements of the buildings “were never remediated, nor were any of the waterlogged walls or fixtures dried or removed,” the Oct. 24, 2002, complaint states. The buildings’ heating systems were located in their basements and distributed mold throughout the buildings, the complaint states. According to the complaint, the defendants “negligently failed to properly dry the basement apartments in order to prevent the growth of mold, [which is] a substance that” could have negatively affected the residents’ health. The complaint states that the town of Elsmere’s chief code inspector determined that the 38 condemned apartment buildings had extensive mold growth in their basements, as well as insect and rodent infestation and open sewer drains. In their complaint, the plaintiffs sought compensatory damages for annoyance and inconvenience, the return of their security deposits, relocation costs and special damages. The defendants argued in court papers that the alleged mold problems could not be attributed solely to Hurricane Hugo, but rather that any mold present in the buildings resulted from a number of separate, isolated water-damage events. Further, the defendants’ environmental expert did not find mold in all of the buildings and found varying degrees of mold in those buildings that did contain the substance, the defense contended. In their brief opposing class certification, the defendants asserted that divergent facts among the proposed class members meant the plaintiffs could not satisfy the commonality requirement set forth in Rule 23(a). “Each tenant lived in his or her own unit within one of the 38 affected buildings, each of which in turn had its own particular history of moisture-related incidents and repairs, as would be expected in any large apartment complex,” the brief said. In addition, from 1989 through 2002, the town had periodically inspected each apartment building and had given the buildings clean bills of health, the defendants said in their brief. “There was no uniformity among the 38 buildings, much less among the 152 individual apartment units,” the defense asserted in the brief. Jurden agreed. “The plaintiff claims that all class members lost their homes at the same time due to the same causes and therefore there’s commonality,” Jurden said. “However, I think that that is a conclusory statement and I don’t think that that’s completely accurate.” Regarding typicality, Jurden said she believed that whether the three plaintiffs’ claims were typical of those of the proposed class was “highly questionable,” according to the court transcript. It was not clear to the court whether Manuel had been a tenant or other legal occupant of the apartment complex, and Kees had never entered into a lease with the defendants, Jurden said. Further, though Kellam was a tenant or lawful occupant of the apartment complex, county inspectors had certified that her unit was habitable just days before the town condemned the buildings, Jurden said. Turning to adequacy of representation, Jurden stated that she did not question the ability of the plaintiffs’ counsel. But the judge again noted that it was questionable whether the named plaintiffs would have been able to obtain damages for relocation costs, which, as the class representatives, they would have been charged with securing for other class members. Gerald Williams of Williams Cuker & Berezofsky in Philadelphia represented the plaintiffs. Williams said his firm would pursue individual claims for the three named plaintiffs as well as about nine other former residents of the Elsmere apartment complex. Williams said the plaintiffs named in the class action had not yet determined whether they would appeal Jurden’s decision.

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