Fraser vs. 301-52 Township Corp.; Bryan T. Netti vs. Auburn Enlarged City School District; Friedman vs. Madison 40 Associates

We last visited the issue of whether a plaintiff can claim personal injury as a result of mold or a damp indoor environment in our January 2007 column. As we reported, the court in Fraser vs. 301-52 Township Corp. held a hearing to determine whether the plaintiffs, Colin Fraser, Pamela Fraser, and their daughter, Alexandra, could introduce evidence that mold caused their health problems, including headaches, rashes, nasal congestion, cough, sore throat, fatigue, itchy and swollen eyes, sneezing, mental and emotional distress, anxiety, depression, asthmatic symptoms, upper respiratory infections, and nightmares. The defendant co-op moved for a hearing, known as a “Frye hearing,” to determine whether the Frasers’ theory of the case – that mold caused their respiratory problems – was generally accepted in the relevant scientific community.

After the hearing, the court in Fraser determined that the plaintiffs had failed to demonstrate that the community of allergists, immunologists, occupational and environmental health physicians, and scientists accepted their theory – that mold and/or damp indoor environments can cause illness.

After this decision, the plaintiffs asked the Fraser court to reconsider its decision. The plaintiffs argued: (1) that the court should not have ordered the Frye hearing; (2) that the court had no authority to determine whether the plaintiffs’ theory of causation was generally accepted in the scientific community since there are experts who disagree; (3) that the object of a Frye hearing is to determine whether a technique, and not a theory, is generally accepted; (4) that the court should have interpreted the scientific literature differently based on a newly submitted affidavit; and (5) that the court did not permit plaintiffs to call an expert, even though the court allowed another to testify as to that expert’s findings.

The court discussed the basis for “reargument” and noted that reargument is not a “do-over” and may not be used to rehash arguments already made or to advance new arguments that were available at the time of the original motion. The court granted the plaintiffs’ motion to reargue, but only with respect to the reliability of the testing of the plaintiffs’ expert, Ed Olmstead.

The court explained that the Frasers claimed that the court erred when it decided that the scientific community did not generally accept that there is a causal relationship between exposure to damp/moldy indoor spaces and the development of upper respiratory and allergic-type symptoms. They insisted that the theory was accepted in the scientific community and relied on literature it placed into evidence. Plaintiffs also claimed, on the reargument motion, that the court should not have held a Frye hearing because there was no novel question of science to consider.

The court discussed the plaintiffs’ theory at the hearing – that the alleged injuries were caused by mold and excessive moisture and dampness, which led to atypical microbial contamination. There was expert testimony on this issue, however, that the Frasers’ apartment had not been tested for the mold microbial by-products and there was no proof that there were mold by-products in the apartment’s air.

In addition, the court explained that the plaintiffs’ injuries were a “moving target” so that it was difficult to pinpoint the symptoms the Frasers actually complained about. Initially, the plaintiffs claimed cognitive defects, infertility, asthma, headaches, coughs, sore throats, fatigue, psychological injuries, itchy and swollen eyes, nasal congestions, asthmatic symptoms, upper respiratory infections, frequent coughs and rashes. The evidence, however, did not establish that the plaintiffs had been diagnosed with any of these symptoms. In fact, the Frasers abandoned their claims for infertility, cognitive defects and asthma, but attempted to enlarge their claims to include rhinitis and sinusitis.

In connection with the motion for reargument, the Frasers offered the affidavit of a toxicologist who was not a witness at trial. Because reargument is not a “do-over,” and because plaintiffs offered no reason for the failure to call this witness at trial, the court refused to consider Mrs. Fraser’s affidavit or the other new affidavits offered by plaintiffs.

The court then discussed a Court of Appeals case that was decided after the original decision in Fraser. The appeals court dismissed a case because there was no “significant association” between exposure to gasoline and a disease developed by the plaintiff in that action.

Thus, the Fraser court concluded, the implication was that a “significant association” could support a finding of causation. The court then discussed the evidence that had been elicited and found that it did not support the conclusion that the scientific community agreed that there was a “significant association.”

While some of the literature found a strong association between mold and asthma in children, the Fraser child did not have asthma.

The Frasers criticized the court for misinterpreting the scientific literature it placed into evidence; however, the court noted that, as plaintiffs, they never had a witness explain or clarify the literature.

The court concluded that the Frasers had failed to establish general acceptance of their theory of injury causation and also that they had not demonstrated that scientists generally accept that there is a level of indoor airborne mold known to cause illness. The Frasers’ experts and literature did not quantify or define any amount of airborne mold or dampness that could cause illness. It followed, therefore, that there were no reliable methods or standards for accurately measuring the amount of exposure that allegedly led to plaintiffs’ respiratory problems. The court did not believe that, because experts disagreed, that disagreement could be proof that there was general acceptance of a scientific theory.

The court corrected one aspect of the original decision. The court agreed that whether a generally accepted method of testing was properly performed was beyond the scope of a Frye hearing and retracted any statements made in the decision concerning this issue.

As to the Frasers’ motion to renew, the court explained that such a motion can be based on new precedent. The Court of Appeals case that was decided after the original decision constituted a new precedent and clarified the rules for the foundation necessary to admit expert evidence. This was unrelated to the Frye standard for proving general causation for a novel scientific method or theory. The Court of Appeals wrote: “It is well established that an opinion on causation should set forth a plaintiff’s exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation).”

The court reiterated that general causation was not proven at the Frye hearing. As to specific causation, the court found that the Frasers were not diagnosed with allergies to mold, although Mrs. Fraser had other allergies. The plaintiffs tried to make a case for specific causation through expert testimony. Since there existed an association between mold and some symptoms, this testimony said, the patient’s history of exposure to mold allowed an expert, using his clinical judgment, to make a differential diagnosis that mold or its microbial by-products caused the symptoms.

The court claimed that this argument “turns causation on its head. A differential diagnosis is a list of possible causes of a symptom. A cause should not be ruled in without a specific basis for believing that there is a general causation: a cause and effect relationship. Additionally, a cause should not be ruled out if there is a scientific basis to believe that the patient’s symptoms could be caused by it. Dr. Johanning [the Frasers’ expert] testified without underlying proof of causation or strong association, without proof of mold allergies, without reliable standards for measurement of airborne exposure, and without measurements of mold by-products that plaintiffs’ symptoms must have been caused by airborne mold and mold by-products. On the other hand, with respect to Mrs. Fraser, he failed to rule in cat and dust allergies.”

The court modified its initial decision and ruled that the co-op’s motion for summary judgment should have been granted because Dr. Johanning’s opinion lacked sufficient foundation for it to have been the subject of expert testimony. In other words, there was no evidence to link the Frasers’ physical injuries to the mold in the apartment.

These decisions have now been appealed to its Appellate Division of the New York Supreme Court in New York County and a decision is anticipated in late 2008 or early 2009.

There have been two other recent noteworthy cases concerning mold. Although neither one concerned a co‑op or a condominium, a review of the cases can be instructive. In Bryan T. Netti vs. Auburn Enlarged City School District, Bryan T. Netti and Jessica L. Marcon, both minors and both students, sued claiming that, because the West Middle School in Auburn, New York, was a damp building with inadequate ventilation, they suffered irritative and allergic-type symptoms and respiratory disease. The school district made a motion to dismiss on the theory that the plaintiffs’ symptoms were only consistent with multiple chemical sensitivity, which is not recognized in the scientific or medical community. The plaintiffs submitted an affidavit from a physician, who stated his opinion “with a degree of reasonable medical certainty” that plaintiffs’ symptoms were caused by building dampness, excess and atypical mold disclosure, and inadequate ventilation. The motion court, in Cayuga County, determined that the issue should be heard by the jury and refused to dismiss the claims.

The appellate court for Cayuga affirmed and explained that the affidavits submitted by the defendant’s expert that showed that there was no scientifically based causal relationship and, the plaintiffs’ expert to the contrary, raised an issue of fact to be heard by the jury. The court found that the record contained sufficient epidemiological evidence to support a finding of general causation, i.e., that atypical molds found to be present in the school building could have caused plaintiffs’ symptoms.

In Friedman vs. Madison 40 Associates, a case decided in the Bronx County Supreme Court, Virginia Friedman, Sanford Friedman, and Jill Weingarten sought damages for injuries allegedly sustained as a result of exposure to atypical mold at their workplace. The defendants/landlords moved for an order precluding plaintiffs’ expert from providing scientific evidence or opinion that the presence of or exposure to mold in an indoor setting caused the type of ailments for which plaintiffs were seeking damages on the grounds that such opinions are not generally accepted in the scientific community as reliable.

Alternatively, the defendants requested that the court hold a Frye hearing. The defendants also moved for summary judgment dismissing the complaint on the theory that plaintiffs would not be able to establish causation in the absence of expert testimony.

From January 1996 until October 2001, Virginia Friedman and Jill Weingarten were partners in a business with an office at 275 Madison Avenue. Beginning in September 1999, plaintiffs noticed that water drainage from an air conditioning unit on a higher floor cascaded down the exterior wall of the office. They complained, but nothing was done.

The water eventually soaked through the exterior wall and caused the interior wall next to Friedman’s work station to crumble. Defendants had the wall replastered and repainted, but it crumbled again. Mold became visible on the wall and the presence of atypical molds was confirmed by environmental testing in 2001. The plaintiffs alleged several health problems because of mold exposure. They claim they were forced to close their business in September 2001.

The court explained that causation requires a showing that a plaintiff was exposed to a toxin, that the toxin was capable of causing a particular illness (general causation), and that the plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation).

The plaintiffs intended to rely on expert testimony (by the same experts who testified on behalf of the Fraser plaintiffs) that exposure to toxic mold in the workplace caused the plaintiffs’ injuries, including neuropsychological impairment and hypersensitivity pneumonitis. The defendants asked that the expert testimony be excluded as scientifically unreliable. They submitted an affidavit from a medical doctor who said that the conclusions made by the plaintiffs’ experts were not generally recognized in the scientific community and were probably attributable to Friedman’s exposure to substances at a horse stable where she rode several times a week and Weingarten’s long history of smoking.

In response to the motion, plaintiffs narrowed their claims of injury to hypersensitivity pneumonitis for Friedman and mucous membrane irritation, skin irritation, and chronic rhinitis-sinusitis for Weingarten.

The plaintiffs’ experts submitted affidavits that discussed their examinations of plaintiffs, plaintiffs’ complaints, and the environmental testing that was performed in the workplace. Dr. Johanning asserted that there was substantial epidemiological and other scientific evidence that damp and microbially contaminated buildings caused a significantly increased incidence of respiratory symptoms and illness in both children and adults.

Defendants’ expert opined that while there may be general acceptance in the scientific community that there is an association between indoor molds/damp environments and respiratory symptoms, there is no general acceptance that a causal relationship has been established. He concluded that it was unlikely that plaintiffs’ symptoms were caused by exposure to mold in the workplace. Both sides submitted literature supporting their respective points of view.

The court discussed the basis for holding a Frye hearing, which set the standard for determining the admissibility of novel scientific evidence. Under this test, scientific evidence, including expert testimony, would be admissible if it were based on a principle, proceeding or theory which had gained general acceptance in the relevant scientific field. The procedure did not have to be unanimously endorsed by the scientific community, but it must be generally accepted as reliable. Even where generally accepted methodology was used, an expert’s conclusion should be excluded when there is a generally or widely held view in the scientific community rejecting such conclusions outright.

The court addressed the decisions in Netti and Fraser, discussed above. The court found that plaintiffs had established a causal relationship between damp and/or moldy indoor environments and respiratory problems and that it was generally accepted in the scientific community. The court also found that Dr. Johanning’s affidavit was sufficient to support a finding that plaintiffs’ symptoms were caused by mold contamination in the workplace. Questions related to “specific causation,” including Weingarten’s long history of smoking, were left for trial.

Attorneys 

Fraser: for plaintiff Guy Keith Vann and Jaroslawicz & Jaros. For defendant Schechter & Brucker. Netti: for plaintiff Woods, Oviatt, Gilman. For defendant: The Law Firm of Frank W. Miller. Friedman: for plaintiff Guy Keith Vann. for defendants Heller Jacobs & Kamlet; Smith Mazure & Associates; and Zane & Rudofsky.