Matoesian: No damage, no moldy apartment class action

By Steve Korris | Nov 30, 2007

For two-and-a-half years attorney Lanny Darr of Godfrey hunted for mold damage at Bissell Apartments in Venice without finding any, so Madison County Circuit Judge Andy Matoesian at last shut down Darr's futile search.

For two-and-a-half years attorney Lanny Darr of Godfrey hunted for mold damage at Bissell Apartments in Venice without finding any, so Madison County Circuit Judge Andy Matoesian at last shut down Darr's futile search.

Matoesian granted summary judgment to Bissell owners and managers at a Nov. 2 hearing in a suit that plaintiff Kesha Manning intended to pursue as a class action.

As the hearing ended Darr asked, "Your honor, for clarification, can we have a basis of what we failed to prove?"

Matoesian said, "There is no question of fact and she does not have any damage."

Darr sued owner BA-2003 Limited Partnership and manager Independent Management Services in 2005, on behalf of Manning and maintenance worker Claude Jackson.

Darr proposed to certify Manning and Jackson as class representatives for residents and workers who suffered physical harm or damage to personal property from mold.

Jackson dropped out, shrinking Darr's potential class to residents only.

Darr's case shrank further when he dropped injury claims and alleged only damage to personal property.

Unfortunately for Darr, Manning could not identify any damaged personal property by documentation or deposition.

That set up an easy hearing for Michael Jacobson, representing the owners and the managers.

Jacobson told Matoesian his client rehabilitates subsidized housing in the Midwest and the South, using federal money.

He said federal money, state money and his clients' money went into rehabilitation.

The Illinois Housing Development Authority gave his clients an award in 2004, he said, for saving the property from the wrecking ball and decreasing crime.

Seven months later, he said, Manning sued.

Matoesian asked Jacobson, "Isn't there a deposition that says I don't know what damage there was, it just seems it is less in value?"

Jacobson said, "Yes, your honor."

Matoesian said, "So right now we're on the suit for personal property only?"

Jacobson said, "That's it."

Darr told Matoesian, "He wants to go through and tell you a big history of how great the people are and these white hats that rode into town."

Darr said, "The reality of this thing is there is a housing project, low income housing down in Venice which was – I think the undisputed facts are – was permeated with water from poor maintenance."

He said water infiltration resulted in mold infestation in every residential unit.

Jacobson handed Matoesian a list of Manning's personal property and told him that in a deposition she said she did not know if anything on the list was contaminated or tested.

Jacobson told Matoesian that in June 2006 Manning answered a question about damage by writing, "None at this time. Investigation continues."

"She talks about CD's being affected but she said she can't tell if they are just old or mold contaminated," Jacobson said.

"She talks about a mop, M-O-P, being contaminated," he said. "She talks about a fish tank, a 55 gallon fish tank, being contaminated."

Matoesian said, "Mr. Darr? You've got a hard way to go, Mr. Darr."

Darr said, "I don't think so, your honor. Mr. Jacobson is not qualified to opine on the science of mold. I'm not qualified to opine on the science of mold and neither is Kesha Manning."

Matoesian tried to stop Darr. He said, "She says she can't –"

Darr kept rolling. "She can't opine about causation on a mold case," he said. "She's simply not qualified to do so."

He said industrial hygienist Patrick Harter confirmed fungal growth, bio amplification, poor indoor air quality and mold contamination in Manning's apartment.

"Not only is her property contaminated, every unit he went into inside the Bissell Apartments complex is contaminated," Darr said.

Matoesian said, "But when she is asked what was damaged – I don't know?"

Darr said, "She has mold on her window sills. She has mold on the walls.

"There is no question that there is mold damage in this apartment complex," he said. "No one is challenging that."

Troy Bozarth, representing BA-2003 and Independent Management Services, said, "No one is saying that there is any mold on a piece of personal property of Kesha Manning's."

Darr said, "That's what I mean, judge. First of all he does say, I inspected her property and her property is contaminated."

He said if Jacobson wanted to argue that Harter's methodology was wrong, he needed to challenge it with science.

Jacobson said, "Nowhere in his report does he test her personal property." He said the report meant nothing.

Matoesian still wanted to read a piece of it. "Let me see the affidavit," he said. "I wonder about the water tank, or the fish tank."

Darr persisted. "They haven't challenged the affidavit in any meaningful way," he said. "There is no counter affidavit."

He read the affidavit: "As a result of the conditions inside Kesha Manning's apartment, her personal property has been damaged by mold contamination."

He said, "That is a fact that has not been challenged."

Bozarth said, "That's a conclusion, that's what it is."

Jacobson said, "We are the defendants in this case and we have the right to know what property has been damaged."

"The court told us to find out," Jacobson said. "We found out, and she said none."

Matoesian told them he would grant the motion and enter judgment.

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