Court of Appeals Rejects Tenant's Personal Injury Mold Claims
On March 27, 2014, the New York Court of Appeals, in a lengthy analysis of the plaintiff’s medical claims and the scientific literature relating to mold exposure in humans, dismissed the plaintiff’s personal injury claims against her landlord. Cornell v. 360 West 51st Street Realty, LLC., et. al., NY Court of Appeals, March 27, 2014.
Brenda Cornell was a tenant of premises located at 360 West 51st Street in New York City, for approximately four years. She brought suit against her landlord and others involved with the management of the building in November, 2004, alleging damp and musty conditions at the property, and the release of dust, dirt, mold and debris in her first-floor apartment.
In 2008, the landlord moved for summary judgment regarding the allegations of mold-induced personal injuries on the ground that Plaintiff was unable to prove that mold can cause the type of injuries alleged (general causation), or that the alleged mold in her apartment caused the specific injuries she asserted (specific causation), and requested a Frye (expert evidentiary) hearing on whether plaintiff’s theory of causation “enjoyed general scientific acceptance”.
Defendant submitted an affidavit from a clinical immunologist who assessed Plaintiff’s claim that her physical and psychological problems were related to an adverse reaction from exposure to molds, and opined that there was “no relationship between the medical problems experienced by Ms. Cornell, and exposures to molds.” He cited medical literature which concluded that mold can cause human disease through certain factors, i.e., immune response in allergic individuals, direct infection by an organism, and ingestion of mycotoxins from spoiled or contaminated food where there is objective evidence of disease. He noted that molds are ubiquitous in the atmosphere, and the level measured in Cornell’s apartment, was an expected level for an average home.
Plaintiff submitted the affidavit of a doctor of environmental and occupational medicine who specializes in mold-related illness. Plaintiff’s expert challenged Defendant’s expert’s credentials, and argued that the generally accepted pier reviewed literature supported his contention that exposure to damp buildings with mold contamination is recognized as a cause of respiratory health complaints. Based on his differential diagnosis, he concluded that Cornell suffers from “bronchial-asthma, rhino-sinusitis, hypersensitivity reactions and irritation reactions of the skin and mucous membranes.
Supreme Court granted Defendant’s summary judgment motion and denied plaintiff’s motion for summary judgment.
On appeal, the Appellate Division, First Department reversed the lower court’s order, and reinstated the complaint. The Appellate Division held that the lower court “erred in finding that [Cornell’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 Court of Appeals began its analysis by referring to Frye v. United States, 293 F. 1013, 1014 (DC Circuit, 1923), which held that expert testimony requires a showing of general acceptance of the expert’s opinion in the scientific community. The Court of Appeals noted that Defendant made a prima facie case that plaintiff could not prove general causation through its expert since hypersensitivity pneumonitis was not one of the respiratory illnesses claimed by Plaintiff.
The Court also rejected Plaintiff’s claim of specific causation. It found that Plaintiff’s expert did not identify a specific disease-causing agent other than to describe it vaguely as “an unusual mixture of atypical microbial contaminants, nor did he quantify her level of exposure to the unusual mixture.” The Court also ruled that the record before it did not support Plaintiff’s expert’s “differential diagnosis”.
The Court emphasized that a Frye ruling on lack of general causation, is based on the scientific literature in the record before the Court, and that its decision in the Cornell case “does not (and indeed cannot) stand for the proposition that a cause-and-effect relationship does not exist between exposure to indoor dampness and mold, and the kinds of injuries that Cornell alleged. Rather, Cornell simply did not demonstrate such a relationship on this record.”
This important ruling by the Court of Appeals emphasizes the difficult burden faced by plaintiffs in toxic exposure personal injury cases when a Frye challenge is made relating to the foundation for the plaintiff’s expert’s opinion on both general and specific causation.
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