April 6, 2012
New York Appeals Court: Mold Case Can Go Forward
Toxic-tort related mold claims are on the rise throughout the country. In the personal-injury context, a plaintiff's main hurdle to recovery has been to overcome a causation-based Frye/Daubert challenge. This is because most courts find that the epidemiological evidence has not shown a causal connection between exposure to certain fungi and various respiratory ailments. However, a recent appellate court decision out of New York makes a mold-related personal-injury claim much easier to maintain in that state. In Cornell v. 360 West 51st Street, ___ A.D.3d ___, 2012 N.Y. App. Div. Lexis 1614 (March 6, 2012), the appellate division modified a lower court decision that precluded a plaintiff's mold expert from testifying as to these general causation issues and held that the science has sufficiently developed in the last two years to show such a connection.
In Cornell, the trial court held a Frye hearing on Dr. Eckhard Johanning's general and specific causation opinions. Dr. Johanning, a routinely used plaintiff's mold expert, opined that the plaintiff's upper-respiratory injuries, asthma, rash, and other conditions were caused by exposure to mold in her apartment. In rejecting Dr. Johanning's opinions, the trial court cited repeatedly to a recent 2008 appellate division decision, Fraser v. 301-52Townhouse Corp., 57 A.D.3d 416, 870 N.Y.S.2d 266 (1st Dep't 2008) where Dr. Johanning's general causation opinions as to mold exposure were soundly rejected as insufficient to constitute general acceptance in the scientific community under the standards of Frye. Specifically, the appellate-court decision in Fraser upon which the trial court in Cornell extensively relied found that the scientific literature, including a 2004 epidemiological study by the Institute of Medicine of the National Academies regarding exposure to mold, showed that there was, on the one hand, sufficient evidence to show an "association" between mold growth and certain respiratory ailments, but, on the other hand, there was insufficient evidence to establish a causal relationship between the two. The trial court in Cornell further found that Dr. Johanning's reliance on two studies that post-dated Fraser was insufficient to overcome the prior science and the Fraser ruling. See Cornell v. 360 West 51st St. Realty, LLC, 26 Misc.3d 1211, 906 N.Y.S.2d 778 (Sup. Ct. N.Y. Co. Dec. 18, 2009) (Friedman, J.).
In a 3–2 decision, the appellate division reversed the trial court, distinguished its own prior holding in Fraser, and plainly held that the two post-Fraser studies upon which Dr. Johanning relied "easily satisfied the test of scientific reliability set forth in Frye." Cornell, 2012 N.Y. App. Div. Lexis 1614, at *7. The appellate division's majority noted that the two new studies showed a "clear relationship between exposure to mold and respiratory" symptoms and also showed a "statistically significant" relationship between mold and claimed injuries. The two dissenters, however, stated that the two post-Fraser studies were insufficient to show that Dr. Johanning's opinions were generally accepted by the scientific community. The first study, the dissent noted, "plainly states that, ‘[t]he data reviewed here represent initial steps toward defining... effects of damp homes and associated excess mold growth.'" The second study was similarly insufficient because it was based on a "single office building," which "contains no evidence that the conclusions were adopted by the National Institute for Occupational Safety and Health."
Cantrell is significant for numerous reasons. From a New York perspective, it gives local plaintiffs' counsel and their experts a game plan for surviving summary judgment and, as such, it will reverberate throughout New York City. It is unclear whether the defendants will seek leave to appeal to New York's highest court. In this regard, the case law may not be developed enough for the court to address the issue. Outside of New York, the decision will also likely be cited in the ongoing legal debate over mold claims and the causation-based science. Defendants in Frye states faced with future lawsuits must stay abreast of the latest science in this area, which may provide further ammunition to arguments that the causation issues are not generally accepted. They should similarly keep track of other cases where Fryechallenges have been successful and cite to those cases as persuasive authority.