Thu, 19 Oct 2006 22:49:20 EDT
Plaintiffs Fail to Meet Burden in Residential-Mold Case
New York Law Journal
10-19-2006
Residential mold may not be the plague many housing advocates have claimed it to be, according to a recent Supreme Court decision.
In an action filed on behalf of three co-op residents who allegedly suffered health problems caused by mold, Manhattan Justice Shirley Werner Kornreich dismissed the causes of action for personal injury, holding that the plaintiffs did not establish that the theory underlying their claim has been generally accepted by the scientific community.
"[The] plaintiffs failed to demonstrate that the community of allergists, immunologists, occupational and environmental health physicians and scientists accept their theory -- that mold and/or damp indoor environments cause illness," Justice Shirley Werner Kornreich held in Fraser v. 301-52 Townhouse Corp., 113586/02.
The decision comes from a trial court and is therefore unlikely to serve as the final word on the matter. Indeed, as recently as last month, Cayuga County Acting Supreme Court Justice Peter E. Corning came to an opposite conclusion, in Netti v. Auburn Enlarged City School District, 0178/98.
Justice Kornreich's detailed, 49-page opinion nonetheless marks a significant victory for skeptics of residential-mold suits. The decision, which encompassed a 10-day Frye hearing and a review of more than 70 scientific publications, seems certain to be cited by landlords and defendants.
Contrary to the expectations of some litigators in recent years, this decision confirms that mold may not in fact become the "next asbestos or lead paint," said Stroock & Stroock & Lavan partner and Law Journal columnist Richard Siegler, a condominium and cooperative-apartment expert who is not involved in this case.
"I think it's [a] very important [decision]," he said. "It puts into question whether or not plaintiffs [in other cases] will be able to recover for personal injury claims for alleged mold conditions."
He added, however, "We need an appellate case to put this issue to bed. So long as it's a lower court case, there's no definitive word."
The suit was initiated by Colin and Pamela Fraser on behalf of themselves and their daughter Alexandra, who all purportedly developed health problems while living in a moldy apartment on East 52nd Street.
Mr. and Ms. Fraser moved into their Midtown East apartment in the summer of 1996.
Mr. Fraser soon developed a rash, lethargy, congestion and "throat itchiness," among other problems, according to court papers. His wife reported such symptoms as teary eyes, itchiness, shortness of breath, forgetfulness and depression. Their daughter Alexandra, who was born in November 2001, developed a respiratory infection.
The family's symptoms all allegedly diminished when they moved out of the apartment to Woodstock, N.Y., in December 2002.
That same year the family filed the present lawsuit against the co-op, 301-52 Townhouse Corp, and its president, Janice Johnson, setting forth numerous causes of action, including personal injury claims for the harm they each allegedly suffered from mold in and around the apartment.
Kornreich conducted the Frye hearing to assess the scientific viability of the Frasers' claim.
EVIDENCE PRESENTED
Each side submitted reams of evidence.
In addition to their own testimony, the plaintiffs presented air, "bulk" and "wipe" samples from throughout the six-story building.
An outdoor air test found large amounts of Basyidiomycetes mold; two indoor air samples and an indoor wipe sample were dominated by Aspergillus mold. A floor sample found elevated amounts of Rhodotorula glutanis.
The plaintiffs also submitted more than 50 studies and articles to support their argument that the mold caused their personal injuries. The publications included such titles as "Respiratory Morbidity in Office Workers in a Water-Damaged Building" and "Mold Toxicity: Risk Assessment for Humans Exposed Indoors."
The defense submitted more than a dozen publications in opposition to the link between residential mold and the plaintiffs' health issues.
Four witnesses testified at the hearing, two for the plaintiffs and two for the defense.
"Frye requires that plaintiffs prove that causation of illness by mold and/or damp indoor environments is generally accepted by the relevant scientific community," Justice Kornreich concluded. "Here, plaintiffs failed to demonstrate that the [relevant physicians] accept their theory."
The defendants' attorney, Thomas V. Juneau Jr. of Schechter & Brucker, called the case an important precedent.
"Something like this will certainly have a dampening effect on those contemplating a personal injury claim based upon the presence of mold in an indoor residential environment," predicted Juneau.
The Frasers' were represented by Elizabeth Eilender of Jaroslawicz & Jaros. Eilender's partner, David Jaroslawicz, said his firm intends to move to reargue or to appeal.
were supposed to do is, if an expert who worked all his life on power saws [and] all of a sudden came in and talked about ladders, then you might say, 'This expert is disqualified," Jaroslawicz said. The tests "were meant to get rid of junk science. It was never intended to [allow] a judge to say, 'In light of this, I find no scientific basis.'"The sad part about this is that now every defense firm is going to cite this as if this was fact," he added. "If I were a defense lawyer, I'd cite it."
