the tragedy of

You might be dying and not even knowit. That hacking cough you’ve had, thatweird skin rash, those “allergies” thatseem to come outta nowhere. Evenyour recent forgetfulness, yourconstant fatigue, your headaches. Thesecould all be signs that your house oroffice is slowly killing you.

You may be one of the countlessthousands—perhaps even millions—around the world suffering from thewide ranging, unpredictable, frightening,and possibly deadly effects of toxic mold.

From the mansions of Beverly Hillsto the studio apartments of the lowerWestside, people of all ages and socialstrata are slowly realizing that toxicmold—aspergillus, stachybotrys, andother less prevalent species—maycause widespread health defects. What’sworse, if left untreated, these molds—prevalent wherever water intrudes intoa building and then dries out—mayeventually lead to cancer, brain damage,and death.

Or maybe not. The insuranceindustry is scrambling to defend cases—typically settling for confidentialamounts out of court—and at thesame time rewrite homeowner policiesto drastically reduce, or simplyeliminate, coverage for mold-relateddamage to health or home. Accordingto insurance companies, the sensation-alist mold cases are merely the latestrage in America’s litigious society, theresult of imaginative and money-grubbing personal injury attorneys andequally opportunistic doctors who basetheir opinions on questionable science.And the insurance industry, which paidout $3 billion in 2002 alone for moldproblems, has assembled their ownphalanx of attorneys and medicalexperts to roundly dismiss plaintiffs’claims as toxic mold hysteria. Suchvigilance is hardly surprising, as biginsurance companies such as Allstateand State Farm are left holdingexorbitant bills when tenants suelandlords and homeowners sueconstruction firms over mold-relatedhealth problems.

If mold is such a problem, theindustry asks, why has it come to lightonly recently and, if mold is every-where, why aren’t more people sick? Noone denies that mold can cause allergicreactions, but the prevailing argumentis that there’s simply no reliableevidence linking the mold in yourcloset to the tumor in your brain.

Today, the debate about toxic mold isone of the liveliest legal topics in thenation. Literally every week, newspa-pers in big cities and tiny towns featureheadlines about the latest mold case.The buzz began a couple years backwhen Ed McMahon settled for $2.7million after his dog died from moldexposure. Recent stories include theReno Airport’s closure of a concourselast month due to mold infestation; aVisalia family’s award of more than $2million for their infant son’s mold-related death in 2002; and a Texasjudge’s refusal to work in his mold-infested courtroom. From Hawaiianhotels to university dormitories andnew single-family tract homes, there’sno shortage of toxic mold tales, whichalmost always end up in the courtroomas judge-and-jury soap operas fit forthe big screen.

Plaintiffs’ lawyers, who often foot thebill for the diagnosis and treatment oftheir clients, ask juries to awardmillions of dollars in damage pay-ments. Defense attorneys attackdoctors’ credibility and cast doubt onthe science behind accusations. Bothsides accuse the other of outright liesand blatant distortions of the truth.Each argument is persuasive, making ithard for the public to determine who’sreally telling the truth.

The official stance of governmentagencies such as the Centers for DiseaseControl and the California Departmentof Health Services is that mold is badbecause it causes allergic reactions andshould be cleaned up quickly. However,while some public organizationsmention the possibility of more drasticailments related to mold, they all stopshort of affirming as much, often falling

back on the phrase “research isongoing.”

Politicians have taken note of thewide discrepancy between accusingdoctors and doubting defendants andhave set both state and federal govern-ments on the slow bureaucratic path todetermine what’s true, what’s false, andwhat should be done. The state ofCalifornia approved the creation of atask force last year to examine toxicmold, but that process is stalled due to alack of funds. Rep. John Conyers Jr.,Michigan Democrat, introduced theToxic Mold Protection and Safety Act toCongress last session, a bill that wouldestablish a federal task force to separatethe hysteria from the health risks. Butthe bill is on the slow track, so answersfrom the government aren’t expectedfor years.

Meanwhile, people continue to getsick for no apparent reason, and manyof them are renters short on legalprotection and money. Despite thegrowing amount of publicity and highprofile cases with multimillion-dollarpayoffs, most property owners still seemold as a plumbing problem, fixed andforgotten with a simple call to the pipesguy. Indeed, not all molds are bad, andsome, such as penicillin, are vital tohuman health. However, as moredoctors claim mold can kill andattorneys watch jury awards skyrocket,everyone agrees that getting rid of themold, fast, should be the primaryobjective. But even for the mostresponsible landlord or homeowner, it’sstill a nightmare, because repairs oftenintensify the problem.

In Santa Barbara, a relatively moistand humid Californian city where ahigh percentage of citizens are rentersand apartment dwellers, mold damagecases are beginning to hit the courtsystem with a vengeance. On January15, a pretrial conference is scheduledfor a case that could prove one of themore expensive toxic mold settlementsin state history. It involves a womanwhose lung cancer cost her a lobe of

one lung and whose son sufferedirreversible liver damage because, theyclaim, they suffered from toxic moldpoisoning over five years living at the ElEscorial condo complex down by EastBeach. They’re seeking close to $5million to cover the medical expensesthey expect to accrue over the course oftheir lives—he’s in his early twenties,she in her early fifties. And that’s butone of many troubling cases.

The Toxic Avenger

In Santa Barbara, one man has quicklybecome the go-to guy for victims oftoxic mold debate. From his secondstory office above Victor’s Flowers onAnapamu and Santa Barbara streets, astone’s throw from the courthouse,John Richards is juggling a handful ofclients who got sick, they believe, fromtheir mold-infested homes. He had seenthe newspaper headlines and televisionexposés and heard about the topic inlegal circles, but it wasn’t until Richards—who mainly handles medicalmalpractice cases—met his clientKristin Carter* that he started on thepath to becoming Santa Barbara’sfrontman for mold.

In her early twenties and blessedwith vibrant Santa Barbara beach-beauty looks, Carter was excited to startwork as a professional chef for awealthy family in town, a job thatincluded living in a cottage on thefamily’s estate. Carter had only beenworking there a few months when herskin began rashing up, her mindbecame muddled, and she startedcoughing up blood. Constant insomnia,sinus problems, and headaches onlyadded to her woes. Soon, she noticed ablack substance overtaking her stuff,from purses and shoes to books andphoto albums.

After doing some online research,she discovered that toxic mold may bethe culprit, but her boss didn’t believeher and wouldn’t pay for

Killing Us All... or Just the Latest Lawsuit Craze? Matt Kettmann Searches for the Truth.

*The names of the plaintiffs in this story have been changed to protect their privacy.

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her to stay elsewhere. That led to the personal injury practiceof John Richards and to the doctor’s office of Dr. Gary Ordog, a SantaClarita-based medical toxicologist who has become the insuranceindustry’s archenemy for testifying—as expert witness in dozens of cases—that certain types of mold are indeed toxic. After moving out of thehouse, quitting the job, and following Dr. Ordog’s treatment, Carter’ssymptoms gradually subsided.

“It was like I had the plague,” Carter said. “My whole house wascontaminated.” Though she’s been getting better every day—and won ahealthy settlement from her former employer to pay for the $20,000-plusin medical bills—no amount of money can replace the cherished items

she lost from the ordeal.Since she developed asuper sensitivity to themold, Carter has had tothrow out an estimated$40,000 worth of mold-infested items, includingan original volume ofRimbaud’s poetry, hermost prized possession.

His success withCarter’s case wonRichards a reputation inSanta Barbara’s tight-knitlegal community as thepoint man for toxic moldcases. He then took on theplight of the Johnsons, ayoung family living in arented San Roque home

when toxic mold took over their lives. Soon after moving in, they noticeda musty smell emanating from the master bedroom closet. The furryblack and green stuff responsible for the smell soon crept onto a favoriteleather jacket and a purse in the corner of the closet. Terry, the mother,known to her family as a “clean freak,” attacked the stuff with ruthlessabandon, hitting it with bleach and scrubbing until it went away. But itcame back, and repeated attacks only stymied the mold for a few days ata time.

Meanwhile, the family’s three young children were getting “cold aftercold after cold, flu after flu after flu.” The entire family, including Terry’syoung brother Mark, was constantly sick, suffering not only respiratoryproblems but psychological concerns as well. Mark slipped into depres-sion for the first time in his life; the kids cried and fought like neverbefore; their once-peppy first-grader was barely able to stay awake forlessons, and Terry stopped cleaning and instead began sleeping all day. Inan act of desperation, her husband, Danny, got down on his hands andknees to try and wipe out the problem for good. For four days hescrubbed the mold away until his eyes burned, his nose clogged, andhorrendous coughing ensued. Then, one week later, he hit a never-before-felt emotional low, and checked himself into Cottage Hospital’svoluntary psych ward while harboring suicidal thoughts.

When Terry developed some spots on her tongue and doctors couldn’tfigure out why, an Internet search for “metallic taste” lead to a toxic moldsite. She read with horror that mold could be responsible for thedeclining mental health of the family, so she contacted the landlordabout getting out. After getting an air quality sample, the landlord wasgenerally unhelpful and would not provide the Johnsons with the air-quality results—which is illegal, by the way. Unfortunately, this is acommon reaction of property owners who usually see mold as a problemmore about aesthetics and construction than life and death.

Such inactivity by landlords is where the legal problems begin,according to Richards, who offered free advice to landlords everywhere.“Get your tenants out of the house,” he said, explaining that it’s not onlythe right thing to do for the tenant’s health, but that if the matter does goto court, a jury would likely have more sympathy for a fast-acting,responsible landlord. Indeed, while downplaying the severity of mold-related illness, insurance industry insiders also recommend actingprudently. One article on an insurance industry Web site notes that themost striking similarity in cases with big settlements is an “uncaringdefendant,” a landlord, developer, or property management firm thatacted callously instead of cautiously.

But even if a landlord tries to do the right thing, the results may proveunhappy. The tale of the Peters family shows just that. As if re-enacting ascene from The X-Files, George and Nancy describe the day they donned

Wearing his telltale white lab coat, Dr. Gary Ordogstands outside his offices in Santa Clarita. Behind thosewalls, Ordog treats thousands of people he believes aresick because of the mold in their homes or offices. Hiscontroversially sensational stance on toxic mold has madehim the bane of the insurance industry.

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gloves, grabbed flashlights, and took a garbage baginto the crawlspace beneath their rented Summerlandhouse to haul out what they believed was a dead androtting skunk. The smell had permeated their home,and beneath the floor that day, their eyes burned fromthe stench. But instead of finding a carcass, theyfound themselves surrounded by an eerie blacksubstance on the walls, a growth they later learnedwas mold.

The declining water pressure they’d complainedabout for months to their landlord turned out to be aslow leak, a leak that had fueled the growth of thesmelly black mold. As with the Johnsons’ case, thePeters’ landlord ordered an air quality sample to betaken, but also refused to provide the results to thefamily. However, the Peters overheard one of thetechnicians who took the sample say that theestimated levels of mold spores were unbelievablyhigh and that the Peters should move out immedi-ately. After such news was relayed to the landlord, aconstruction company was called in to tear out theinfected walls, which only managed to scatter themold into the air. The landlord would not pay forrelocating the family, however, which, especially in theoutrageously expensive housing market as SantaBarbara, made it impossible for the family to move.

Soon, Nancy began bleeding internally and doctorsdid not know why. Her skin became so sensitive thateven the lightest touch of her robe was painful, as ifher entire body was covered in bruises. And asprotective plastic sheets went up around the inside ofhouse—evoking the sci-fi paranoia of the movie ET—the daughter Rita began experiencing unexplainedfatigue and symptoms of depression. Always a hardworker, Rita lost the will to help out at the familybusiness.

“These people were coming into our house withspace suits, there were skull and crossbones signssaying do not enter, and there were plastic sheetseverywhere—but we were told to eat and sleep there.It was like a bad joke,” explained Rita, who got betterwhen she moved up north to live with her father for awhile. After returning to the “repaired” house lastyear, Rita began showing symptoms again and toldher parents that the mold was still there. Afterenduring some ridicule, they agreed to check it out.Sure enough, the Peters’ mold is back, and theirnightmare continues.

For others the nightmare has just begun, and atleast two new mold sufferers are referred to Richardseach week. One of them is Iris Gifford, his newestclient. Gifford lives in an apartment on the lowerEastside. The apartment’s previous tenant hadcomplained about water damage—damage so badthe upstairs neighbor’s bathtub literally fell throughthe ceiling—but Gifford, who lives on a fixed income,jumped at the fair price after being told the problemhad been taken care of. But soon after moving in,rashes began breaking out on Gifford’s arms and legs,and a few weeks later, Gifford’s hepatitis C—previously in a state of remission—kicked into full

gear. Nasty rashes appeared on her arms and legs,while her daughters, 11 and 13, complained they werehaving difficulty breathing.

One day, after learning that her neighbors in thebuilding also had respiratory problems, Gifford cameto the apartment for a quick pick-up of clothes (atthat point she knew something was wrong and hadstarted sleeping in motels and at relatives’ houses).While Gifford packed a few things, her 11-year-olddaughter lay down on a bed; the girl’s face suddenlyturned bright red and her breathing became labored.That was the final straw. Gifford had seen toxic moldin the news, so she decided to call an indoor airquality expert.

Because Gifford didn’t have enough money for thepricey work-up on the air sample, the expert held offon providing the results. When Richards got involved,Gifford managed to come up with the dough for thetesting, and the results were shocking—in herbathroom were extremely high levels of stachybotrys,one of the most potentially dangerous molds, andproblematic levels were creeping into the closet in herdaughters’ room. Gifford no longer sleeps in theapartment; meanwhile, Richards is trying to get hermedical work-up paid for.

Whether Richards will eventually take Gifford’scase remains to be seen. He ends up taking only about10 to 20 percent of the people who call him abouttoxic mold. Since he often has to pay for his lower-income clients’ medical expenses, hotel stays, and airquality tests with his own money, Richards has tohedge his bets when it comes to toxic mold casesbecause he only gets paid and reimbursed if he wins.If there are too many pre-existing conditions or if alandlord did indeed act with care and concern,Richards usually has to turn the case down. But he’squick to offer basic advice to anyone and alwaysrecommends getting out of a moldy home as soon aspossible.

Watching the Detectives

But that’s not quite the advice you’d get from BillSlaughter, an equally persuasive attorney who defendsinsurance companies against toxic mold claimsthroughout central and southern California. LikeRichards, Slaughter is a laid-back, straight-talkingsort of guy who wears dirt-covered work boots, bluejeans, and loose-fitting shirts in his upstairs officenear Highway 101 in Ventura. ThroughoutCalifornia’s big-money insurance law circles,Slaughter is known for getting the job done.

Slaughter admitted that mold can produce allergicreactions, much like the sort of respiratory problemscaused by cat dander. Slaughter chalked up the bulkof the dilemma to a few attorneys who seemed to betaking the money and running on the heels of this“flavor of the month.” Slaughter said that existingresearch has failed to reveal peer-reviewed studies—reports which have been vetted and

When claims of tox

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accepted by the establishedmedical community—which link toxicmold to the type of illnesses people areexperiencing. He cites the American Collegeof Occupational and EnvironmentalMedicine’s stance against the linking ofmold to chronic illness as resoundingevidence to support his claims.

Slaughter is quick to point out that evenif mold could cause the sorts of neurologicalproblems and life-threatening illnessesbeing claimed, there is still no technology totest for airborne poisons related to mold.The air quality tests used in most moldlawsuits count the number and type of moldspores floating around, but these testscannot determine whether or not thosespores are carrying mycotoxins, thepoisonous substances ejected as a naturaldefense when a mold begins to dry up anddie. Scientists agree that the evidence ofspores does not necessarily mean mycotox-ins are present and also agree that there is alack of knowledge about what situationscause molds to produce mycotoxins.Slaughter charges that there’s no hardscience behind how manymycotoxins must be present todo major harm, explaining that,based on existing science, “Theamount of mycotoxins needed tokill you would require so manyspores that you wouldn’t be ableto see across the room.”

Over the course of defendingthese lawsuits, which he doeswell, having been involved in atleast three successful defenseverdicts last year, Slaughter haslearned that mold is everywhere.And that alone is the answer, hesays, as to why the hysteria isbased on false pretenses. Hecontinually asks the question: Ifmold is everywhere, why aren’tmore people sick?

Slaughter’s theory? “Thesepeople are walking arounddepressed, looking foran answer. Told by adoctor they’ve beenpoisoned by toxic mold,people convincethemselves that theyhave these uniquelysubjective symptoms.I’ve found that there’s a lot of people beingtold that they’re sick when they’re not.”Slaughter presents his theory sympatheti-cally, suggesting that he does indeed careabout these people, but that attorneys anddoctors are profiting from their misfortune.“I’m helping people be true to themselves,”he said.

When Slaughter talks mold, he does sowith an easy confidence, and it’s tempting tobelieve him. But Slaughter nearly loses hiscool when the conversation shifts to Dr.Gary Ordog, the doctor—known in somedefense circles as “whore dog”—who hasbecome the voice for toxic mold victims inmany a California courtroom and, hence,the bane of the insurance industry. “Ordogtreats mold like it’s anthrax,” Slaughter said,before launching into a lengthy assault onOrdog’s credentials. With a certain amountof pride, Slaughter also mentioned that latelast year, the state Attorney General began aserious inquiry into Ordog’s treatment ofpast patients. Slaughter has become Ordog’snemesis, and vice versa, as many Californiamold cases hinge on which man the jury

believes: the smooth-talking, down-to-earthdefense attorney or the calm, fatherly doctor.

What’s Up, Doc?

Dr. Gary Ordog’s office in the middle ofstrip mall-happy Santa Clarita is about asnondescript as the white lab coats he wears.A big teddy-bear kind of guy, Ordog’sfavorite place to eat lunch is right across thestreet from his office, a little deli calledCathy’s. One sunny day last spring, Ordogwaxed at length about the history andscience of mold with the same nonchalantmanners he used to order Cathy’s famedmatzo ball soup. The information Ordogprovided was enlightening, both in what heclaimed toxic mold had been proven tocause—everything from childhood asthmaand skin rashes to irreversible brain damageand lethal cancer—and in the lengthylegacy that toxic mold boasted.

According to Ordog, toxic mold isnothing new. The Bible mentions it in theBook of Leviticus and prescribes burning

down all houses infested by mold. Mold hasbeen cited as the cause of such historicevents as St. Anthony’s Fire, a documentedsyndrome in the Middle Ages involvingpeople who went mad after eating moldyrye. Ordog believes that ingested or inhaledmolds also accounted for the 10th plague ofthe Old Testament—the deaths of the first-born sons. Toxic mold, Ordog will tell you,lay behind the mysterious curse of KingTut’s tomb and the witch-hunts of Salem,and that mold has been used since theTrojan Wars as a biological weapon, atradition carried on by Saddam Hussein’s“yellow rain” attacks on the Kurds in the late1980s. Ordog, who claims he was the one ofthe few doctors able to successfully treatGulf War syndrome, believes that mold mayhave been used on American soldiers as welland has heard that the United States mayhave used mold as a weapon during theVietnam War.

Ordog’s office is literally a library ofarticles and scientific papers about toxicmold, a collection he uses to convincepatients that—no matter what some

From his Ventura office, Bill Slaughter is leading

the charge against doctors and lawyers who claim

that mold is toxic. As the insurance industry's

top defense attorney, Slaughter has been successful

refuting evidence and discrediting doctors who say

that mold can kill.

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attorneys say—Ordog is not the only oneconcerned about the dangers posed bymolds and mycotoxins, the poisons they cancreate.

In nature, mold typically feeds on theundergrowth of forests, digesting fallen treesuntil there’s no more moisture to sustaintheir growth. Then, as a defense mechanismto fend off competing molds, insects, or evenlarge mammals, the mold ejects reproductivespores that carry mycotoxins. According tothe available research, mycotoxic poisonsrange drastically in severity, but in somecases, mycotoxins such as the aflatoxinsproduced by aspergillus or thetrichothecenes produced by stachybotrys,can cause death if just a milligram is inhaled.

“Do you know how much a milligramis?” Ordog asked, during the lunchtimeinterview. He answered himself by holdingup a single grain of salt. “This could killyou,” he said.

If you’re prone to paranoia, you shouldavoid a talk with Ordog. He went on toexplain that the more than 2,000 knownmycotoxins—which theoretically areeverywhere at any given moment—cancause any one of 28 symptoms, rangingfrom relatively mild allergic symptoms suchas bloody noses, rashes, and asthma tomajor effects such as Alzheimer-likeforgetfulness, myriad cancers, or the fatigue-related symptoms of depression, lupus,fibromyalgia, and multiple sclerosis. Moldand mycotoxins affect everyone differently,and their effects are difficult to diagnosebecause of wide-ranging, occasionallysubjective, and often amorphous symptoms.

He cites the 20-plus texts authored by theWorld Health Organization that linkmycotoxins to 67 various forms of cancer aswell as a lengthy list of international studiesand historical records to toxic mold, usuallyrelated to aspergillus and stachybotrysspores. “Ten years from now,” Ordogpredicted, “doctors everywhere will be moreknowledgeable about mycotoxins.”

By no means is Ordog alone. In a legalconference scheduled for March in Irvine,more than a dozen doctors and medicalexperts are slated to speak about healthproblems related to mold and mycotoxins,including a San Francisco doctor who wasreprimanded by the state medical board forprescribing unorthodox treatments to moldpatients. Toxic mold critics charge the samething about Ordog, who, after making surepeople move out of their moldy residencesand destroy all infested possessions, putspatients on an internal cleansing processthat involves vitamins, saunas, and antifun-gal medicines.

Santa Barbara Story

The testimony of Ordog is expected to playa big role in the upcoming $5 million civilsuit against the El Escorial homeowner’sassociation, property management com-pany, and 13 other defendants involved inthe construction and operation of the ritzycondo complex situated between the zooand East Beach. The case centers on theclaim by Eva Geffcken and her sonAlexander—who lived at El Escorial from1995 to 2000—that they suffered five yearsof toxic mold exposure. And that exposure,the Geffckens believe, gave Eva lung cancer,leading to the removal of a lobe of her lung,and caused irreversible liver damage toAlexander. Ordog has supported theirclaims in his testimony.

But attorney Pat McCarthy, the leaddefense attorney, doesn’t agree. McCarthyhas been researching the topic for monthsand has also deposed Ordog in preparation.“Dr. Ordog will say that the pimples on yourface, the lint in your belly button, and thedirt under your toenails are due to moldexposure,” McCarthy said from his VictoriaStreet office. He claims that Ordog is notheld in high esteem by the medical commu-nity at large and said that Eva Geffcken’ssurgeon, oncologist, and pulmonologisthave all testified that her lung cancer boreno relation to toxic mold. “Ordog is cashingin on the hysteria,” McCarthy continued,criticizing his exorbitant expert testimonyfees. “I don’t know of any expert whocharges $975 an hour and, when a judgeorders the fee reduced, turns around andcharges his patient for the remainder,” asOrdog has done in the Geffcken matter.McCarthy also pointed to three cases from2003 where Ordog was an expert, but theplaintiffs lost the jury verdict.

(For his part, Ordog said his pricey ratesare due to “high overhead” and that thosecases were lost because the plaintiffs’attorneys failed to prove liability of thedefendants. Ordog assured that his scientificopinion was accepted in all three cases.)

Representing the Geffckens is NicolasWeimer, a Los Angeles trial attorney.Weimer said he watched as the defenseattorneys tried to refute Ordog’s evidenceduring the deposition, an attack to whichOrdog responded by producing “not just alittle documentation.” In explaining why heagreed to represent the Geffckens in whatmay prove a landmark toxic mold trial,Weimer offered, “There’s a certain amountof objective evidence in this case. Thepatients can’t fake it and the doctors can’tmake it up.”

The case is expected to begin by the endof the month.

Who’s Telling the Truth?

As long as the toxic mold debate isdecided in the courtroom—where persua-sion and advocacy reign supreme over factsand figures—instead of in the laboratory,the American public will be hard-pressed todetermine just how toxic that mold in thebathroom is. There seems to be a very clearconnection between moldy homes and sickpeople, but whether that stuffy nose willequate to ovarian cancer down the roadremains a connection not yet accepted by themainstream medical and legal community.

Most troubling, however, is the possibilitythat both sides of the debate are correct.What if, as Ordog asserts, the variousmanifestations of mold—nature’s dedicatedand determined garbageman—do causemyriad health problems, ranging from theoccasional stuffed nose and annoyingwheeze to life-threatening cancers anddebilitating brain disorders? And what if, asSlaughter and other defense attorneyssuggest, mold is all around us? Couldcountless baffling ailments endured daily byhumans worldwide be explained by the wetspot under the sink, the funky odor in thecloset, the black goo beneath the floor?

For now, that answer remains in thehands of juries and equates more to moneyawarded than facts discerned. But at leastone thing is clear—if there’s mold in yourhouse or apartment, deal with the problemsoon, before the fate of your home and yourhealth winds up before judge and jury. ■