APARTMENT MOLD AND DAMPNESS UPDATE, P.2

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, and said 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 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, and 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 to 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 asserted 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.

Everything Mold Is New Again

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 of a causal relationship. 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 determines the admissibility of novel scientific evidence. Under this test, scientific evidence, including expert testimony, is admissible if based on a principle, proceeding or theory which had gained general acceptance in the relevant scientific field. The procedure need not be unanimously endorsed by the scientific community, but be generally accepted as reliable. An expert's conclusion are excluded when there is a widely held view in the scientific community rejecting such conclusions outright.

The court addressed the decisions in Netti and Fraser and found that those cases' plaintiffs had established a causal relationship between damp / moldy indoor environments and respiratory problems, and that this was generally accepted in the scientific community. The court also found that the affidavit by the plaintiff's expert in this case 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 smoking, were left for trial

The issue of whether there is a causal relationship between personal injury (and specifically respiratory problems) and a moldy or damp environment is being heavily litigated in matters concerning apartments, schools and the workplace.

At this time, we await the appellate court's decision in Fraser, as that holding will likely dictate whether the courts in Manhattan and the Bronx will be required to allow experts to testify that a plaintiff's illness was caused by a moldy or damp environment.

Richard Siegler is a partner in the New York City law firm of Stroock & Stroock & Lavan. Dale J. Degenshein is a special counsel for that firm.

Adapted from Habitat September 2008. For the complete article and more, join our Archive >>