Down Goes ‘Fraser’! Mold Comes Creeping

May 10, 2012 | Appeals | Health Services

Four years ago, in Fraser v. 301-52 Townhouse Corp.,[1] the Appellate Division, First Department, affirmed dismissal of a personal injury claim in a case involving injuries allegedly arising out of exposure to toxic mold after finding that the plaintiff’s submissions failed to raise a triable issue of fact that mold exposure caused adverse health effects. In Fraser, the court essentially proclaimed that the body of science and medical literature existing in 2008 did not find general acceptance for the proposition that exposure to mold caused physical injury.

Since then, so-called “toxic mold” litigation, which was considered by many as the “next asbestos,” has all but dried up, most likely due to the evidentiary hurdle created by Fraser

Now, however, in its March 2012 decision, Cornell v. 360 W. 51st St. Realty, LLC[2], the First Department effectively knocked down Fraser, potentially opening the door to a new wave of mold litigation. 

Fraser

The plaintiffs in Fraser, former residents of an apartment building, sued for personal injuries they claimed were caused by dampness and resulting mold infestations in the building. After the defendants moved for summary judgment and preclusion of the plaintiffs’ expert evidence purporting to establish that the building’s alleged dampness and mold condition caused their health problems, the motion court directed that a “Frye[3] hearing be held to determine whether the plaintiffs’ causation theory was generally accepted as reliable within the relevant scientific community.

The Frye test, articulated in Frye v. United States, requires that the reliability of a new test, process, or theory be “generally accepted” within the relevant scientific community.[4] Reliability is typically established by considering whether other experts in the same field accept the reliability of the theory.[5]

After the Frye hearing, the motion court granted the defendants’ motion, precluding the expert evidence and dismissing the personal injury claims. The First Department affirmed.

In its decision, the appellate court explained that although there was general agreement that indoor dampness and mold were “associated” with upper respiratory complaints, the defendants’ experts took the position, consistent with the literature they submitted, that the observed association between those conditions and those ailments was not strong enough to constitute evidence of a causal relationship. In other words, the court emphasized, “association” was not equivalent to “causation.”

The appellate court then declared that, given that the plaintiff had failed to demonstrate general acceptance of the notion that a causal relationship had been demonstrated between the conditions and ailments in question, the claim of their expert – Eckardt Johanning – that he had established causation in the case by means of “differential diagnosis” was “unavailing.”

Moreover, the court found that whether the plaintiffs’ theory of causation was scrutinized under the Frye inquiry applicable to novel scientific evidence or under the general foundational inquiry applicable to all evidence, the conclusion was the same: “[T]he proffered expert evidence must be precluded on the ground that the underlying causal theory lacks support in the scientific literature placed before us in the present record.”

Fraser Knocked Down

Fraser reigned supreme until the First Department’s decision in Cornell.

The plaintiff in Cornell was a tenant of an apartment on the first floor of a building in Manhattan. The building was owned by 360 W. 51st Street Corp. until Sept. 5, 2003, when it was sold to 360 West 51st Street Realty, LLC. On the day that the new owner began removing debris from the basement in order to renovate, the plaintiff allegedly became ill from dust, dirt, mold, and debris that was purportedly released into the air and infiltrated her apartment. The plaintiff sought to recover, alleging that the defendants caused her body rash, shortness of breath, fatigue, disorientation, and headaches.

The plaintiff relied on the affidavit of her treating physician, Dr. Eckardt Johanning – the same Johanning who was the plaintiff’s expert witness in Fraser. In Cornell,he opined that exposure to damp buildings with excessive and atypical mold contamination was a recognized cause of respiratory health complaints and conditions such as asthma, rhino-sinusitis, bronchitis, allergy, infections, and irritant-type reactions of the skin and mucous membranes. With regard to the plaintiff, he opined, with a reasonable degree of medical certainty that her irritative and allergic-type symptomatology was caused by exposure to building dampness and excessive and atypical mold exposure, over time, at her apartment.

The trial court granted the defendant’s cross motion for summary judgment dismissing the complaint, finding that it was “constrained” by Fraser to dismiss the plaintiff’s claims for personal injuries caused by exposure to mold. In particular, the trial court found that Fraser had foreclosed the plaintiff’s evidence of specific causation, stating that, “Fraser rejected Dr. Johanning’s claim to have established causation by means of differential diagnosis.” The trial court in Cornell concluded:

The scientific theory advanced in Fraser is the same theory advanced here, by the same witness, Dr. Johanning, on the basis of largely the same scientific evidence. While stressing that its holding ‘did not set forth any general rule that dampness and mold can never be considered the cause of a disease,’ Fraser found that such causation had not been demonstrated by the plaintiffs there… Fraser mandates this court’s dismissal of plaintiff’s personal injury cause of action.

The plaintiff appealed.

In a divided 3-2 ruling, the First Department reversed, finding that the trial court had “incorrectly interpreted” Fraser as setting forth a categorical rule requiring dismissal of plaintiff’s toxic mold claim due to failure to meet the standard of scientific reliability set forth in Frye. According to the First Department, the trial court erred in finding that the plaintiff’s proof was not “strong enough to constitute a causal relationship,” or that the methodologies used to evaluate her condition failed to meet the Frye standard.

The focus of the Frye inquiry, it declared, “should not be upon how widespread [a] theory’s acceptance is, but should instead consider whether a reasonable quantum of legitimate support exists in the literature for [an] expert’s views.” The appellate court added that because the plaintiff’s expert’s opinions relating plaintiff’s condition to the mold infestation found “some support in existing data, studies [and] literature,” namely, studies that have found a statistically significant relationship between mold and various respiratory maladies, the Frye standard was “easily” satisfied.

Implications of the Ruling

            The plaintiff in Cornell relied on Johanning to establish her claims that exposure to molds and other environmental contaminants caused body rash, shortness of breath, fatigue, disorientation, and headaches.  Johanning’s opinions, which were precluded in Fraser under a Frye analysis, were accepted by the First Department even though he used the same method of differential diagnosis that the First Department had rejected four years earlier. In fact, two studies referenced by Johanning in Cornell to support findings of a dose-response as well as a temporal relationship between claimed microbial exposure and respiratory illness had both been published pre-Fraser. Landlords and lawyers can rightly wonder why an opinion rejected four years ago should be accepted now.

The First Department seems to have altered the “general acceptance” analysis under Frye in favor of a more expansive interpretation requiring only a “reasonable quantum of legitimate support” for an expert’s view.  The appellate court also was clear to point out that clear evidence of actual causation was not required, but rather support in the literature “indicative of a causal relationship” would suffice. 

Moreover, the First Department seemed to have relaxed the evidentiary requirements of exposure that were widely understood to have been set forth in Fraser under the New York Court of Appeals decision in Parker v. Mobile Oil.[6]The First Department pointed out that the Court of Appeals in Parker had stated that it was “not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship, provided that whatever methods an expert uses to establish causation are generally accepted in the scientific community.” According to the First Department, the trial court’s decision in Cornell ran counter to the reasoning in Parker that it was not necessary for a plaintiff to quantify the exposure provided the plaintiff’s expert used a generally accepted method to render an opinion of causation or significant association.

Then, to be sure that there was no misunderstanding, the Cornell court proclaimed that it was “undisputed that exposure to toxic molds is capable of causing the types of ailments from which the plaintiff suffers.”  Enabling the First Department to make this statement was the fact that the defense expert did not dispute the potential for bio-aerosol irritants (mold and volatile organic compounds) to cause the claimed illness.  Further, the defendant’s expert did not actually examine the plaintiff, so any opinion regarding specific causation was rejected by the First Department as unreliable.

Cornell included a partial dissent by Judge James M. Catterson, in which Judge Richard T. Andrias concurred.  The dissenters declared that the majority had disregarded the Frye requirement that “significant findings” be “generally accepted.”  The dissent did not believe that the record supported a finding of general acceptance within the relevant scientific community of the causation of respiratory illness as a result of mold exposures.  It is not clear at this point whether this dispute will reach the Court of Appeals. 

What is clear, however, is that the barrier to “toxic mold” claims erected by the Fraser decision has been torn down, at least with respect to respiratory and other claims of irritant or allergic-type illness. Claims of significant neurologic or other cognitive illnesses, cancer, or autoimmune disease most likely will continue to be subject to exclusion under even the new Frye analysis set forth in Cornell.  There still does not seem to be sufficient support in the literature for these types of claims. 


[1] 57 A.D.3d 416 (App. Div. 1st Dep’t 2008), appeal dismissed 12 N.Y.3d 847 (2009).

[2] 2012 N.Y. Slip Op. 01643 (App. Div. 1st Dep’t March 6, 2012).

[3] Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

[4] Marsh v. Smyth, 12 A.D.3d 307 (App. Div. 1st Dep’t 2004) (Saxe, J., concurring).

[5] Id., citing People v. Wesley, 83 N.Y.2d 417 (1994).

[6] 7 N.Y.3d 434 (2006).

Reprinted with permission from The New York Law Journal.  All rights reserved.

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