Judge Calls for ‘Just, Speedy and Inexpensive’ Action on Rum Fungus

Cruzan Rum in the making. (Photo provided by Cruzan Rum)
Cruzan Rum in the making. (Photo provided by Cruzan Rum)

Six years after residents in western St. Croix filed lawsuits against the island’s rum manufacturers, a judge in Superior Court has come up with action steps to address residential grievances in which 121 people say a creeping black mold caused by the process of aging rum is worrisome and costly.

Superior Court Judge Robert Molloy issued a Sept. 20 opinion and a case management order in a case that began with plaintiff Ryan Alleyne and seven others against Diageo USVI, Inc., and Cruzan VIRIL, Ltd. The two manufacturers are accused of allowing rum fungus to migrate out of their plants and trespass onto to residents’ homes and property.

Several months later, the court limited the number of plaintiffs in the case down to Alleyne and his family. But by then dozens of other St. Croix residents living in the Frederiksted also filed suit, saying they too had signs of rum fungus around their homes.

The case was assigned to the Superior Court Division of Complex Litigation as a master case. In 2018 Molloy ordered lawyers representing the three parties to brief the court about what they thought was the best way to solve the problem in a way that was, “just, speedy and inexpensive.”

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After looking at the briefs submitted by the parties in February the judge decided they all fell short. That was the basis of the Sept. 20 Memorandum and Opinion.

And, according to one of the attorneys with clients in the case, the judge took a bold step.

“The black-mold rum fungus case, which was a class action (sic) is now broken into a mass tort,” said St. Croix attorney Russell Pate.

According to information appearing online, class action and mass tort cases are similar, but have distinctions between them. According to information posted online at Hodes-Milman, LLP, one distinction is that under a mass tort, individual cases are filed and considered independently, but are consolidated as a group for litigation.

Legal teams were also given a set of directions in Molloy’s opinion. Lawyers for the plaintiffs were told to hand over Baudoinia test results to the defendant teams. Plaintiffs are also ordered to turn in all bills, receipts and supporting documents connected to fungus mitigation.

Lawyers representing plaintiffs and the two rum companies are ordered by the court to confer and agree on a testing entity to conduct a new round of Baudoinia tests for all plaintiffs. Molloy said once those tests are completed, only those parties whose homes tested positive for “any amount” of rum fungus will remain in the consolidated case.

If the parties cannot agree on a testing entity, the court directs the legal teams to produce two recommendations apiece of laboratories, universities or professional companies that can test for Baudoinia.

Rum fungus — also known as whiskey fungus or distillery fungus – grows in places where ethanol vapors escape from aging barrels and enter the surrounding environment. In distillery culture, that vapor is called the Angel’s share.

Other communities living near liquor manufacturers have their own stories to tell. From a website called Risk and Insurance comes a story from Louisville, Kentucky, where whiskey fungus complaints that began in 2006 were traced in 2012 to the aging of spirits at a nearby distillery.

Evidence of the presence of fungus Baudoinia compniacensis appears as a film of black particles. A 2015 photo of a street sign in Estate Cane Carlton appeared in other local media when the matter became a topic before the Senate Committee on Health, Hospitals and Human Services.

Since then, there have apparently been no public forums on rum fungus. There also does not appear to have been a determination by Planning and Natural Resources in response to calls by Sen. Kurt Vialet for a judgment on whether rum fungus poses a threat to human health.

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