Resurgent Mold Litigation In Sandy’s Wake

There is a significant risk that there will be a resurgence of mold claims and mold litigation in the wake of Hurricane Sandy.  Sandy left behind thousands of homes and offices in New York and New Jersey with flood-soaked flooring and sheet rock and water-damaged carpeting and personal belongings, which are all potential sources of mold if not removed and replaced.  In addition to potential mold exposure to property owners and lessees, there is the potential occupational risk to the thousands of workers in the construction trades who are working to repair damaged homes and offices.

The most likely source of mold-related claims, however, will arise over disagreement concerning the scope of work of remediation contractors, construction companies and others involved in returning storm-ravaged communities to some semblance of normality.  The contractor who replaces ruined sheet rock walls or wooden flooring, for example, may not be thinking about the water-soaked floor joists that may be a breeding ground for mold. The contractor who rebuilds an HVAC system may not feel responsible for sources of mold that may be spreading via that system.

Although certain affected surfaces may appear to recovered after being submerged under storm water for days, those surfaces may in fact be a breeding ground for mold. A service such as mold remediation cleveland can be necessary to inspect and ensure the removal of any trace of mold. As much as possible, a building contractor should clarify with the client in writing what responsibility, if any, the building contractor has for addressing mold conditions, particularly those conditions that may be adjacent to area of new construction.

On November 30, 2012, WNYC broadcast a highly informative program on the Leonard Lopate Show titled, “Mold: Please Explain“, which can be downloaded from WNYC’s website. The guests on the program were Monona Rossol, an expert in environmental health and industrial hygeine, and Chin Yang, a microbiologist with Prestige EnviroMicrobiology. Ms. Rossol and Mr. Chin discussed what mold is, where it comes from, how it grows, what it can do to your home and health, and how to get rid of it.  The listener Q&A following the initial presentation made clear that there are widespread misperceptions about mold and how to address it.

Thankfully, there are many publicly available websites that provide first-rate information concerning mold hazards and how to address it.  These sources should be the first place anyone with a mold concern should look for answers.  They are also excellent sources of information for toxic tort practitioners defending mold cases, who need to identify relevant regulations and standards of practice in the industry.  These sources also provide valuable insights into how to protect human health during the restoration process.

These sources, most of which are provided on the WNYC website, include NYC’s excellent site at: The NYC Department of Health and Mental Hygiene; EPA’s “Mold Regulation in Schools and Commercial Buildings“, EPA’s “A Brief Guide to Mold, Moisture, and Your Home“, “Flood Cleanup: Avoiding Indoor Air Quality Problems” and “The Inside Story: A Guide to Indoor Air Quality” “An Introduction to Indoor Air Quality“, FEMA’s “Dealing With Mold and MIldew in Your Floor Damaged Home” and “Eradicating Mold and Mildew” HUD’s “Healthy Homes Programs Resources” and Disaster Recovery: Mold Removal Guidelines for Your Flooded Home” and lastly, the “Guidance for Clinicians on the Recognition and Management of Health Effects related to Mold Exposure and Moisture Indoors“, published by the University of Connecticut Health Center, Division of Occupational and Environmental Medicine, Center for Indoor Environments and Health.

There is no dearth of strong science-based resources concerning mold and mold rememdiation on the internet. Unfortunately, these resources are often consulted only after some ill-advised action is taken with regard to a mold concern, not before.

Suspect Toxic Mold Suit Reinstated

Guest Blogger ANDREA J. LAWRENCE is a Senior Counsel at Epstein Becker & Green in New York.  She provides legal advice and counsel to clients in the real estate industry. Andrea has extensive commercial litigation experience, and has provided legal representation to real estate companies, landlords, developers, property management companies, and commercial tenants  In this jointly written post, we discuss a recent Appellate Division, First Department toxic mold case, which was reinstated after dismissal in the trial court.

The adverse health effects of toxic mold are frequently litigated in courts throughout New York, where many apartment dwellers claim to suffer from various medical illnesses resulting from mold and dampness. Just last week, toxic mold again created a stir in the legal community when the Appellate Division, First Department, in Cornell v. 360 West 51st Street Realty, LLC (2012 NY Slip. Op. 01643), reversed a lower court decision dismissing a plaintiff’s mold personal injury claim against her landlord. Despite plaintiff offering scientific and medical evidence in support of her claims, why did the lower court award summary judgment to the landlord? It is noteworthy that plaintiff’s expert, Dr. Eckhard Johanning, has made a career testifying for plaintiffs in mold personal injury actions. This was not the first case in which his expert testimony had been rejected by a trial court due to his off-the-wall methodology.

In Cornell, the plaintiff had resided in her apartment directly above the building’s basement since 1997. After flooding in the basement in 2002 and 2003, the plaintiff observed mold in her bathroom, and began to feel ill every time that she entered this room. In October 2003, the building was sold and the new owner began to remove debris from the basement in preparation for renovations to the building. During the course of the debris removal, plaintiff experienced dizziness, chest tightness, congestion, a shortness of breath, a rash, swollen eyes and a metallic taste in her mouth. In November 2003, the plaintiff was forced to permanently vacate her apartment purportedly as a result of her medical condition. Shortly thereafter, she commenced a personal injury action.

In support of her motion seeking summary judgment (and in opposing the landlord’s motion), the plaintiff presented expert testimony establishing that mold was capable of causing the medical ailments she experienced. Her treating physician opined that her symptoms were caused by exposure to toxic molds.

Notwithstanding the causation evidence presented by plaintiff, the lower court granted defendants’ motion for summary judgment and dismissed the complaint. In doing so, the court relied on Fraser v. 301-52 Townhouse Corp., 57 A.D.3d 416 (1st Dep’t 2008), holding that “the Fraser majority has resolved the issue of the sufficiency of the current epidemiological evidence on which [plaintiff’s physician] relied was not sufficiently strong to permit a finding of general causation, and as the limited supplemental studies that are submitted in this action plainly do not remedy the insufficiency found by the Fraser majority, this court is constrained to hold that plaintiff is unable to prove general causation.”
The trial judge reasonably assumed that if Dr. Johanning’s scientific evidence had failed to pass legal muster in Fraser, his testimony should not be given credence in her courtroom either.

In a 3-2 split, the Appellate Division First Department held that the lower court had erred in its dismissal of the plaintiff’s personal injury claims based upon Fraser. The court stated that, “we never disavowed the underlying theory that exposure to mold may, under certain circumstances, give rise to respiratory and other ailments.” The court noted that its holding in Fraser was limited by the facts of that particular case, and reiterated “our holding [in Fraser] does not set forth any general rule that dampness and mold can never be considered the cause of a disease.” So holding, the Appellate Division reinstated the plaintiff’s complaint against the landlord for mold-related personal injuries.

 At first blush, it may appear that the trial court dismissed plaintiff’s mold claim because it had read Fraser as a categorical rejection of all toxic mold personal injury mold cases. However, the trial judge had certainly not done this.  In his dissenting opinion, Judge Catterson faulted plaintiff’s experts in the lower court for failing to rely upon “generally accepted science.” He determined that plaintiff’s submission concerning medical causation failed to meet the test under Frye v. U.S., 293 F.1013 (D.C. 1923)(known as the Frye test), which requires that the reliability of a new test, process or theory, be “generally accepted” within the relevant scientific community. Upon close examination of the studies relied upon by plaintiff’s experts, he determined that plaintiff’s proof fell short of the mark.  We agree with Judge Catterson. 

Unfortunately, Cornell may provide a roadmap to clever toxic tort plaintiff lawyers and their experts on how to beat back a Frye challenge in New York state court.  At the end of the day, the experts are cooking up the same suspect causation opinions that were rejected in Fraser. It is just that they are adding some scientific "gloss" to those opinions to get to the jury. 

California’s Take On Mold Claims, Expert Testimony, And The Two-Part General And Specific Causation Test

Guest Blogger M.C. Sungaila  is a partner in the appellate law firm of Horvitz & Levy in Los Angeles. Her appellate work has helped shape toxic tort law in California, including the scope of the duty to warn sophisticated users of product hazards and the guidelines for admitting expert testimony at trial.

Toxic Tort Litigation Blog’s post earlier this year about a Michigan appellate court’s affirmance of an award to residents of a home overrun with mold – without any expert testimony to prove causation – raises the question: what would happen to such a claim in a more famously liberal state like California? In this instance at least, California seems more likely to come to a more ‘conservative’ conclusion than Michigan.

 

Expert Testimony

 

California not only requires expert testimony for complex causation questions; it tests the foundation for that testimony and requires trial courts to exclude expert opinions that are unsupported. See an early article describing the development of these standards by M.C. Sungaila and David M. Axelrad published in California Lawyer. The California courts of appeal have specifically considered the admissibility of expert testimony in mold cases and ruled in favor of the defendants. Most recently, in Dee v. PCS Property Management, one of the appellate divisions in Los Angeles confirmed the trial court’s ability to exclude unfounded expert testimony in a residential mold case. Darcee Dee lived in an apartment for slightly over four months. She sued her landlord and property management company for alleged physical injuries, as well as fear of cancer, from living in an apartment that purportedly had toxic mold in it. After hearing the plaintiff’s experts testify over several days concerning their opinions and the foundation for them, the trial court granted the defendants’ motions in limine to exclude most of the experts’ testimony based on a lack of foundation. The remaining portions of Dee’s claims were tried to a jury, and the jury rejected her claims. The appellate court affirmed the judgment in Dee, concluding that the trial court did not abuse its discretion by excluding plaintiff’s experts for lack of an adequate foundation.  Each of Dee’s experts sought to testify that her exposure to mold mycotoxins caused her symptoms and her susceptibility to cancer, without any evidence that she was exposed to potentially harmful mycotoxins at her residence. The court relied on the decision in another mold case, Geffcken v. D’Andrea,  and distinguished its own prior decision in Roberti v. Andy’s Termite, the only published opinion to have rejected the trial court’s authority under the California Evidence Code to thoroughly analyze the foundation for expert testimony in order to determine its admissibility.  For another take on the Geffcken and Dee mold decisions, see an article on the Kring & Chung LLP website.

 

Toxic Tort Causation Standards

 

While California appellate courts would be certain to require expert testimony on causation, it is not as clear how they would analyze causation in a toxic tort case.  In toxic tort cases, a plaintiff must generally prove not only that a chemical or substance can cause a particular adverse health effect but also that it did cause the harm to the plaintiff.  Proof of causation therefore necessarily includes a threshold determination whether, as a matter of reasonable medical probability, a particular chemical is capable of causing in humans the type of harm suffered by the plaintiff (i.e., “general causation”). If the answer is that the chemical does not possess that capacity, then the chemical cannot have been a cause of plaintiff’s harm. But if the chemical does have that capacity, then the causation inquiry (in jurisdictions like California which apply a substantial factor causation standard) becomes whether the plaintiff’s exposure to the chemical in question was as a matter of reasonable medical probability a substantial factor in causing the particular plaintiff’s harm (i.e., “specific causation”).   For a helpful analysis of causation in toxic tort cases, see the excellent discussion by David E. Bernstein, a Professor at the George Mason University School of Law, in an article  titled "Getting to Causation in Toxic Tort Cases".  This two-step general and specific causation framework is almost universally accepted by federal courts analyzing toxic tort causation (including the Ninth Circuit, see, e.g., Golden v. CH2M Hill Hanford Group, Inc. (9th Cir. 2008) 528 F.3d 681, 683).  Trial courts in California have analyzed proof of causation in toxic tort cases along general and specific causation lines as well. California appellate courts have not, however, expressly adopted the general and specific causation distinction in a published decision. This has led to some confusion, as plaintiffs have attempted to convince courts that such a “two-part”causation test is incompatible with California’s prevailing causation standards.  In Dee v. PCS Property Management, the plaintiff raised this argument on appeal, but the Court of Appeal declined to reach it because the jury had found no negligence, which made an argument about causation standards “irrelevant.” An opportunity to address the general and specific causation distinctions head-on may come later this year, however, when the Court of Appeal in Los Angeles is likely to hear argument in and decide the plaintiffs’ appeal of summary judgment in a high-profile benzene exposure case brought by former students at Beverly Hills High. The appellate docket for the case, Lee v. Venoco, is attached here. The original summary judgment decision ruled on the admissibility of expert opinion on both general causation and specific causation.

Mold In Our Classrooms

My hometown newspaper Greenwich Time, reported in a front page headline on March 25, 2009 "Mold found again at Ham Ave."  The Hamilton Avenue Elementary School in Greenwich was closed in 2005 largely due to the perception that mold made the school unsafe for students and faculty.  For the past three years, the youngsters attended classes in temporary modular classrooms, which ironically also suffered from mold problems, while awaiting completion of the oft-delayed reconstruction of the school, the Greenwich Time reported.   It was discovered last week at the newly re-opened school that a 2-to-3-square-foot patch of mold was discovered due to a leaky interior pipe that hadn’t been properly sealed during construction. It is not surprising that the school’s industrial hygienist, Hygenix, found "exceptionally low" levels of mold after sampling. What is surprising is that the decision was made to perform sampling at all considering that the source of the water infiltration was addressed and the mold removed.  Sampling is often not necessary and sampling results are frequently misinterpreted to suggest a health hazard where none exists.  In its guidance for "Mold Remediation in Schools and Contaminated Buildings", the USEPA cautions that there a number of pitfalls associated with mold sampling which at best only provides a "snapshot" of conditions as they exist at a given time.  To suggest, as the school’s consultant did, however, that any "residual microbial hazards" had been eliminated is an unfortunate choice of words because it is probably the case that no hazard ever existed in the first place.  Ron Gots, a toxicologist based in Rockville, Maryland, who has written extensively about public misinformation about mold describes how medical statements by mold testers may result in unintended consequences in the event of a claim.  For example, the statement in a hygienist’s report that "This mold is known to produce toxins which can cause a variety of adverse health effects including……"  is not only irrelevant, but begs the question whether:(1) the mold is producing toxins in this instance?; (2) those toxins are getting to people?; and (3)  they are getting to people in sufficient quantity to cause harm?  As Dr. Gots points out, the issue is not what molds can do; the question is what they are likely or proven to do under these particular circumstances in this setting.  To avoid further fear and confusion about mold (and unnecessary costs) at the Hamilton Avenue school,  a more scientifically objective approach should be considered by the Town.