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Mold

Postby TenantNet » Tue Apr 03, 2012 1:04 am

Mold Claims For Damages Get New Life
Wall Street Journal
By Josh Barbanel
April 1, 2012

The problem of mold­--that furry, slimy or powdery substance that grows in damp places­--just got a lot more dangerous, at least for landlords and co-op and condo boards in New York.

Four years ago, a key appellate court decision in Manhattan blocked millions of dollars in legal claims for damages for health effects of mold in buildings, saying that the scientific evidence that mold caused illness was in dispute.

But a few weeks ago that conclusion was overturned by a split 3-2 decision by another five-judge panel in the same court that found that the scientific literature was now "indicative of a causal relationship."

The decision has been the talk of condo and co-op lawyers since, who worry that it will lead to a new wave of personal-injury lawsuits for mold injuries, driving up insurance rates and costs for building owners.

In the current case, Brenda Cornell, who once lived in a ground-floor apartment above a moldy basement in a Hell's Kitchen tenement, filed a complaint seeking $11.8 million in damages, primarily for health problems.

The former owners of the building had argued that it wasn't possible to link her conditions to mold dust that wafted up from the basement during the brief period when a work crew began removing debris from the basement in 2003. Attorneys for the previous owners didn't respond to a request for comment.

The new appellate decision said the previous decision hadn't ruled out the possibility that "dampness and mold can ever be considered the cause of disease." And it found that several new studies added to the weight of evidence on the theory.

Eva Talel, counsel to the division of the Real Estate Board of New York that represents residential building managers, said that the decision provides "an opportunity" for people who claim they have "suffered personal injury by reason of mold."

She said that she hoped the New York Court of Appeals, the state's high court, would quickly take the case "to give us true clarification." But she said that under the court's procedural rules it wasn't clear whether that would have to wait until after the case was sent back to the lower court for trial.

"It is going to result in a heck of a lot more lawsuits being filed by people who have mold- and moisture-related conditions and suffer from health effects," said Bill Sothern, a certified industrial hygienist who sometimes testifies about mold damage in court. He is the founder of Microecologies, a mold inspection and consulting company.

Suits on mold made headlines a decade or so ago across the country, and in New York some lawyers began making mold cases a specialty. Mold-related insurance claims soared.

In one case filed in 2003, Bianca Jagger stopped paying rent and sued her Park Avenue building because of health problems she said were caused by mold. She eventually lost the case, after her landlord showed that under her temporary visa she was not entitled to the rent-stabilized apartment in the first place.

In buildings, mold can feed on damp sheetrock, wallpaper glue, wood and other substances. Mold exposure has been linked by some studies to asthma systems, cough and wheezing, though for most people the symptoms disappear when the exposure ends.

City officials say building owners are supposed to quickly clean up mold, and deal with leaks, roof or masonry problems, though by one measure the problem may be getting worse. Last year housing inspectors issued 15,942 violations for mold-related conditions, a 19% increase from 2007. The number of the most serious category of violations rose by 67% during the same period.

But personal-injury mold suits went into a lull after the 2008 appellate-court decision brought by a family living in a co-op apartment in a basement and first-floor co-op apartment on East 52nd Street. That decision, known as the Fraser decision, found that there was no scientific consensus that air-borne mold spores caused illnesses. It barred testimony from experts who blamed mold for health problems. Though the appellate decision only directly applied to Manhattan and the Bronx, lawyers said it influenced many other courts as well.

The latest case dates back to 2003, when a new owner bought the building and began cleaning up the basement which had been damaged in flooding before the sale. Within days, Ms. Cornell, who worked in the music industry, moved out of the apartment, complaining about rashes, dizziness, difficulty breathing and severe headaches.

She settled her lawsuit with the new owners for a relatively modest sum, but is still seeking damages from the prior owners of the building, who expected the case to be dismissed, lawyers said.

The majority opinion, written by Justice Sallie Manzanet-Daniels, said the suit can proceed, noting several new studies on mold illness. But a dissent by Justice James Catterson said Ms. Cornell's lawyers had failed to show that her theory of mold illness "is generally accepted by the scientific community."

Morrell I. Berkowitz, who represented Ms. Cornell, said, "This is not hocus-pocus junk science, and I should be able to go before a jury."

Both Ms. Cornell and the plaintiffs in the Fraser case were examined by the same doctor, Eckardt Johanning, who specializes in Family and Occupational Medicine.

He testified that to "a reasonable degree of medical certainty" her problems were due to her exposure to "atypical mold exposure in her apartment, after ruling out other possible causes for her condition.

But the New York City Health Department does not keep counts of cases of health problems caused by mold, because of the difficulty of identifying mold as a cause, according to Sam Miller, a department spokesman.
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'Cornell' Accepts Causal Connection Between Toxic Mold and I

Postby TenantNet » Fri Nov 09, 2012 3:20 pm

'Cornell' Accepts Causal Connection Between Toxic Mold and Injury
William E. Vita, David B. Thorne and Dale M. Johnson II
New York Law Journal
10-26-2012

The New York Appellate Division's recent decision in Cornell v. 360 W. 51st Street Realty[FN1] significantly alters the toxic mold litigation landscape and has important implications for landlords and contractors. The decision facilitates personal injury claims by building residents against landlords and contractors involving exposure to indoor mold and dampness.

Before Cornell, defendant landowners relied on Fraser v. 301-52 Townhouse Corp. to exclude plaintiffs' expert causation testimony and ultimately obtain summary judgment. In Fraser, the proffered scientific literature failed to demonstrate general acceptance of the theory that building dampness and mold cause respiratory ailments. And absent quantitative evidence regarding the plaintiffs' level of exposure to the alleged damp and moldy conditions, the plaintiffs failed to prove that the extent of their exposure was sufficient to cause their illness.[FN2]

Post-Fraser, courts read the case as a categorical rejection of toxic mold personal injury claims. But Cornell changed this. On the basis of two additional studies cited by the plaintiff's expert, the Cornell court described the causal relationship between mold and the plaintiff's injuries as "undisputed." The court also explained that Fraser does not require quantitative evidence of the plaintiff's exposure to mold; rather, it only requires that the plaintiff's expert use reliable methods in forming an opinion as to whether mold exposure caused the plaintiff's physical symptoms.[FN3]

This shift in case law will make it easier for residents to submit expert causation testimony and successfully assert toxic mold personal injury claims against their landlords. Correspondingly, landlords will find it more difficult to preclude this causation testimony and, therefore, more difficult to avoid these claims on summary judgment.

Personal Injury Claims

Claim Elements. A plaintiff alleging personal injury from toxic mold exposure must prove two types of causation. First, the plaintiff must establish general causation­that building dampness and mold are generally capable of causing the plaintiff's alleged illness. Then, the plaintiff must demonstrate specific causation­that the specific plaintiff's level of exposure to dampness and mold was sufficient to cause the alleged illness.[FN4] Expert opinion evidence is needed to support both causal theories.[FN5] To be admissible, this expert opinion evidence must satisfy the Frye standard.

'Frye' Standard. The Frye standard for admissibility requires novel scientific evidence to be "generally accepted as reliable within the relevant scientific community." The proponent of the evidence bears the burden to establish "general acceptance."[FN6] This burden, however, arises only after the opponent of the proffered evidence makes a prima facie case that the evidence is not generally accepted in the relevant scientific community.[FN7]

'Fraser'

In Fraser, a married couple and their infant child brought suit against their former apartment building owners, alleging personal injuries caused by damp and moldy apartment building conditions. Specifically, the plaintiffs claimed to suffer respiratory problems, rash, and fatigue. The defendants sought to preclude the plaintiffs' expert testimony on both general and specific causation.[FN8]

After a Frye hearing, the court found the causal theory underlying the expert testimony unsupported by the scientific literature on record and held therefore that the testimony was precluded. The court stated, however, that its "holding [did] not set forth any general rule that dampness and mold [could] never be considered the cause of a disease, only that such causation [had] not been demonstrated by the evidence presented by the plaintiffs [in Fraser]."[FN9]

General Causation. As to general causation, the court noted that "none" of the cited scientific literature could be considered evidence that damp or moldy indoor environments cause respiratory illness. Rather, the evidence indicated a general agreement on the "association" of indoor dampness and mold with respiratory illness, but that this "association" was not strong enough to constitute "causation."[FN10]

In attempting to establish general causation, plaintiffs' expert Eckardt Johanning relied on two studies, neither of which sufficiently supported his theory. The first described only the "association" between a water-damaged building and respiratory ailments.[FN11] The authors also acknowledged that the risk of "participation bias" limited the study, which was based on voluntary responses to a questionnaire. The second study Johanning relied on focused on childhood asthma, an issue that the court noted was not relevant to the case.[FN12] Ultimately, Johanning failed to establish the "general acceptance of [plaintiffs'] view that indoor dampness and mold are capable of causing [the] plaintiffs' health problems."

Specific Causation. The plaintiffs also failed to demonstrate specific causation. Their experts did not specify the level of dampness or mold exposure needed to cause the plaintiffs' alleged ailments. In the absence of this threshold limit, the plaintiffs could not prove that they were exposed to a level of dampness or mold sufficient to cause their injuries. Nor did the plaintiffs even offer a reliable measurement of the level of dampness or the level of mold in their former apartment.[FN13] The court held that Johanning's method of differential diagnosis was an inadequate substitute for quantitative proof.

'Cornell'

Cornell is factually similar to Fraser, as both involve injuries allegedly caused by toxic mold exposure in the plaintiffs' apartment buildings.[FN14] In Cornell, the plaintiff lived in the subject apartment for six years before she began experiencing the alleged respiratory and allergic-type symptoms. Relying heavily on Fraser, the motion court in Cornell found that the plaintiff's causation theory failed the Frye standard and therefore granted summary judgment for the defendants.[FN15] The motion court acknowledged increasing public concern about the effects of mold on health, but stated that "the Fraser majority ha[d] resolved the issue of the sufficiency of the current epidemiological evidence to demonstrate causation," and that Fraser constrained it to hold that the plaintiff failed to prove general causation.[FN16]

But the New York Appellate Division reinstated the complaint, holding that the plaintiff's expert causation testimony "easily satisfied" the Frye standard.[FN17] The court quoted its own limiting language from Fraser, stating that Fraser did "not set forth any general rule that dampness and mold [could] never be considered the cause of a disease, only that such causation [had] not been demonstrated by the evidence presented by the plaintiffs [there]." In doing so, Cornell clarifies that no categorical exclusion of expert causation testimony in a toxic mold case exists.[FN18]

General Causation. The Cornell court heard much of the same expert testimony proffered in Fraser, yet reached the opposite conclusion. S. Michael Phillips, again testifying for the defendants, acknowledged that indoor mold can cause some of the plaintiff's alleged symptoms, but opined that mold did not cause the plaintiff's physical ailments, just as he did in Fraser.[FN19] But unlike in Fraser, where the court concluded that the experts for both parties agreed there was an "association" between physical ailments and damp and moldy building conditions, the Cornell court concluded that experts for both parties agreed that mold was "capable of causing" the plaintiff's alleged symptoms.[FN20]

Johanning, again testifying for the plaintiff, described mold as "a recognized cause of respiratory health complaints." In forming his opinion, Johanning relied on some of the same evidence that was held insufficient to support a theory of general causation in Fraser, but supplemented his analysis with two additional studies.[FN21]

The first study concluded, "[t]he preponderance of epidemiological data supports a link between exposure to dampness and excess mold growth and the development of aeroirritant symptoms."[FN22] The authors noted that other studies had found a "statistically significant relationship" between mold exposure and respiratory symptoms. The second study examined workers in a water-damaged building and found that "respiratory illnesses showed significant linear exposure-response relationships," and specifically that exposure to mold in floor and chair dust was associated with a twofold increase in post-asthma occupancy risk.[FN23] Primarily on the basis of these supplemental studies, the court concluded that the evidence "easily satisfied" the Frye standard, as it "demonstrate[d] a clear relationship" between mold exposure and respiratory illness.

Whereas the Fraser court found that the "association" between illness and indoor dampness or mold was insufficient to indicate a causal relationship,[FN24] the Cornell court held that the "association" supported by the supplemental evidence was sufficiently strong to constitute "causation."[FN25]

Specific Causation. The plaintiff also successfully established specific causation. The court found that the evidence confirmed the presence of mold in the plaintiff's former apartment, as well as that exposure to this mold caused the plaintiff's alleged physical symptoms. Importantly, the court held that the plaintiff need not quantify her exposure level to mold, as it is sometimes impossible to quantify the level of exposure to a toxin. Instead, the court required only that the expert use reliable methodology in reaching his conclusion.[FN26]

Johanning relied on the same differential diagnosis methodology used in Fraser to reach his specific causation conclusion in Cornell.[FN27] Based on his differential diagnosis, he stated, "with a reasonable degree of medical certainty, that the plaintiff's irritative and allergic-type symptomatology was caused by exposure to building dampness and excessive and atypical mold exposure." He further stated there was "no question" that the damp and moldy conditions in the plaintiff's apartment building "had a host of deleterious effects" on her health.[FN28]

The motion court rejected Johanning's testimony, reasoning that Fraser had previously rejected his specific causation opinion based on a differential diagnosis. But the Appellate Division disagreed, opining that the court had never rejected differential diagnosis as unreliable methodology; instead, the court had rejected specific causation testimony based on a differential diagnosis when general causation had not been established.[FN29] Thus, the Cornell court's finding of general causation seems to support its finding of specific causation.

Landlords and Contractors

To limit liability in light of Cornell, landlords and contractors should take proactive steps to identify and remedy mold issues so that tenants will be unable to bring claims based on long-term mold exposure. More importantly, if a landlord or contractor receives notice of such conditions, remedial measures must be implemented immediately even if it means relocating the tenant if the mold problem requires more extensive remediation.

In addition to addressing the underlying cause of building dampness related to the building's envelope or internal leaks, remedial measures might include hiring certified professionals/industrial hygienists to remove mold, sealing off problem areas until cleanup is complete, or even evacuating the entire area affected by the mold. The appropriate measure depends on the nature of the building and the severity of the moldy conditions, as well as any allegations of health problems related to the mold. Of particular concern are those tenants who may have compromised immune systems, the elderly or young children.

This proactive approach will enable landlords and contractors to minimize mold exposure among building residents. Studies indicate that symptoms potentially associated with mold exposure subside when the exposure ends,[FN30] and therefore, these remedial measures can also minimize the risk of adverse health effects.

If landlords and contractors fail to properly address moldy conditions, they could face lawsuits and, after Cornell, could be forced to pay personal injury damages. In addition to personal injury, residents might also bring claims for constructive eviction, breach of implied warranty of habitability, rent abatement, or even motions for class certification.[FN31] Landlords and contractors may also face punitive damages for particularly egregious conduct. Thus, to limit liability, landlords and contractors should proactively implement mold identification and remediation strategies and should promptly investigate and respond to residents' moldy building condition complaints.

Litigation After 'Cornell'

The precedent Cornell set is potentially problematic for all New York landlords, but particularly for those owning large buildings with envelope problems or a significant internal water leak. The Cornell decision sets a low hurdle for personal injury claims based on the resident's exposure to indoor mold and dampness to survive summary judgment. Indeed, the decision does not require much evidence to connect allegations of mold exposure with respiratory and other similar ailments, which have multiple confounding factors and can be difficult to disprove. Defendants can no longer rely on Fraser to preclude plaintiffs' expert causation testimony. To the contrary, plaintiffs may now rely on Cornell to support the admissibility of their expert testimony and survive summary judgment.

By citing to the studies on which Johanning relied, plaintiffs can satisfy the Frye standard and establish general causation. And Cornell suggests that after general causation has been established, expert testimony based on a differential diagnosis is sufficient to satisfy Frye and demonstrate specific causation.

William E. Vita is a partner at Westerman Ball Ederer Miller & Sharfstein in New York. David B. Thorne is a partner at Shook, Hardy & Bacon in Kansas City. Dale M. Johnson II is an associate at Shook. They may be reached at wvita@westermanllp.com,dthorne@shb.com, and dmjohnson@shb.com, respectively. Jennifer Vogel, a summer associate at Shook, contributed to this article.

Endnotes:

1. 939 N.Y.S.2d 434 (N.Y. App. Div. 2012).

2. 870 N.Y.S.2d 266, 268-70 (N.Y. App. Div. 2008).

3. Cornell, 939 N.Y.S.2d at 440-41.

4. Fraser, 870 N.Y.S.2d at 269-70, (citing Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 448 (2006)).

5. See id. at 267 (requiring expert testimony on the issue of causation).

6. Id. at 267-70.

7. Id. at 278 (Mazzarelli, J.P., dissenting).

8. Id. at 267 (majority).

9. Id. at 268-69.

10. Id. at 268-69.

11. Id. at 269 n.3 (discussing Cox-Ganser, et al., Respiratory Morbidity in Office Workers in a Water-Damaged Building, 113 Envtl. Health Persp. 485 (2005)).

12. Id. (discussing Jaakkola, Home Dampness and Mold, Parental Atopy and Asthma in Childhood: A Six-Year Population-Based Cohort Study, 113 Envtl. Health Persp. 357 (2005)).

13. See id. at 269-70 (explaining there is no standard method for measuring "dampness," and that plaintiffs' expert failed to comply with plaintiffs' own authority regarding standards for measuring inhalation exposure).

14. Cornell, 939 N.Y.S.2d at 435.

15. Id. at 435-36.

16. Id. at 439.

17. Id. at 440.

18. Id. at 435 (quoting Fraser, 870 N.Y.S.2d at 268).

19. Id. at 437; Fraser, 870 N.Y.S.2d at 267, 272-73.

20. Cornell, 939 N.Y.S.2d at 441 (emphasis added).

21. Id. at 437-38.

22. Id. (quoting Excess dampness and mold growth in homes: An evidence-based review of the aeroirritant effect and its potential causes, 28 J. Of Allergy And Asthma Proc., May/June 2007).

23. Id. at 439-40 (quoting Hydrophilic Fungi and Ergosterol Associated with Respiratory Illness in a Water-Damaged Building, 116 Envtl. Health Persp., June 2008).

24. Fraser, 870 N.Y.S.2d at 269-70.

25. Cornell, 939 N.Y.S.2d at 440.

26. Id. at 440-41.

27. Id. at 441.

28. Id. at 438.

29. See id. at 441 (explaining that "in order to be considered as a possible cause, in a differential diagnosis matrix, a given agent must be capable of causing the harm observed).

30. See, e.g., Am. Indus. Hygiene Assoc., Facts About Mold (2011), available at http://www.aiha.org/news-pubs/newsroom/Documents/Facts About Mold December 2011.pdf ("Most symptoms are temporary and eliminated by correcting the mold problem."); Mark J. Mendell et al., Respiratory and Allergic Health Effects of Dampness, Mold, and Dampness-Related Agents: A Review of the Epidemiologic Evidence, 116 Envtl. Health Persp. 748 (2011), available at http://www.ncbi.nlm.nih.gov/pmc/article ... discussing the importance of indoor mold prevention and remediation).

31. However, courts are unlikely to grant class certification on personal injury grounds, but might on contractual type claims. See, e.g., Brandner v. Abbott Labs., Inc., 2012 U.S. Dist. Lexis 7017, at *11–15 (E.D. La. Jan. 23, 2012) (explaining that individual issues predominate over issues common to the class).
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