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The Appeals Court issued an opinion today in Doherty v. Admiral’s Flagship Condominium Trust, which takes on the issue of whether the discovery rule applies when a leak occurs outside the statute of limitations period causing mold infiltration sometime later. The court said it does:

“The question whether the discovery rule applies to circumstances involving a water intrusion outside the limitations period, followed by the later development and discovery of toxic mold, is novel and has not yet been addressed in Massachusetts. Other jurisdictions that have addressed it have applied the rule to such cases. Those courts have held, at the least, that “when the claimant in a toxic mold case experiences physical symptoms that would cause an ordinary person to make an inquiry about the discovery of the cause of the symptoms, that is the point at which the statute of limitations begins to accrue.” Gerke v. Romero, 148 N.M. 367, 372 (Ct.App.2010). See Gleason v. Borough of Moosic, 15 A.3d 479, 486-487 (Pa.2011) (discovery rule tolled statute of limitations to time when plaintiffs knew or should have known cause of their physical injuries, an issue of fact for jury where plaintiffs did not link their health problems to hazardous mold until several years after flooding incident in their home); Dutton v. Farmers Group, Inc., No. E2009- 00746-COA-R3-CV, 2010 Tenn.App. LEXIS 395, at 22-23 (Tenn.Ct.App. June 22, 2010) (discovery rule tolled the statute of limitations where “[t]oxic mold spores were a latent problem concealed within [p]laintiffs’ home” that did not become apparent until years after flooding); Pirtle v. Kahn, 177 S.W.3d 567, 572-573 (Tex.Ct.App.2005) (applying discovery rule, plaintiff’s cause of action accrued “when she found the leak in her apartment, saw the mold, and immediately drew the inference that the mold caused her illnesses,” despite her experiencing health problems for years before discovering the mold).”

“We agree with the foregoing cases that without some indication of a hazardous contamination, the plaintiff could not have been aware that she was being exposed to toxic mold, regardless of when the leak began. Contrary to the defendants argument, it is not a certainty that all water infiltration will eventually evolve into toxic mold. To conclude otherwise would encourage, and possibly even require, a plaintiff to preemptively file suit the moment water starts to infiltrate a dwelling or other building, before any mold or mold-related injury has even occurred.

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