Virginia Lawyers Weekly

A Loudoun County judge has reduced jury awards for a couple who contended that mold sickened them and left their home unlivable from $4.75 million to $1.45 million.

Paul and Wendy Meng contended that mold developed in their new $900,000 because the contractor, the Drees Company, did not allow the structure to dry before installing insulation and sheetrock. They also alleged that mold grew as a result of leaks around improperly installed windows.

The jury awarded the wife, who had migraine headaches and other ailments, $2.28 million for negligence. Her husband was awarded $500,000 for negligence, and the jury awarded the couple $1.47 million for constructive fraud and $500,000 for violation of the Virginia Consumer Protection Act.

However, the jury also returned verdicts for Drees on contract and actual fraud counts.

Circuit Judge Thomas D. Horne said the defense verdict on the contract claim and the absence of any allegation of fraud in the inducement of the contract required him to set aside the fraud and VCPA awards as a matter of law.

“Any duty with respect to representations made by the defendant, respecting construction of the home and reliance upon those representations by the plaintiffs, arose out of the contract and not independently by way of a fraud claim sounding in tort,” Horne wrote in Meng v. The Drees Company (VLW 009-8-048).

However, he allowed the jury’s findings of negligence to stand. The jury “could reasonably conclude that as a result of negligence on the part of the builder, an unsafe condition was created within the household leading to injury and damages being sustained by the plaintiffs,” Horne said.

“The duty to avoid creating such a condition and of injuring the plaintiffs is one imposed by law and not dependent upon the terms of the contract,” he wrote.

Horne found, however, that the damages were excessive. He acknowledged that Wendy Meng’s injuries – including muscular and joint pain, increased chemical sensitivity, asthma and short-term memory loss – were substantial.

But they were cured by a month-long biodetoxification program in South Carolina and neither she nor her husband presented any evidence of permanent or future injuries, Horne said.

The jury’s smaller verdict for Paul Meng reflected the evidence that his injuries were not nearly as severe as those of his wife, the judge said.

He ordered the husband to accept a judgment of $425,000 and the wife to accept an award of $975,000 or submit to a new trial.

David Hilton Wise and James P. Lukes of Fairfax represented the Mengs. Kurt C. Rommel and Jeffrey S. Poretz of McLean represented the defendant.

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