New York, United States, April 4, 2009 from IEHN.

Q. Counselor, the case of Fraser seems to set a new standard of proof required for suit. What is happening in the courts?

"Upon closer review, the standard is the same but the evidence is now under more scrutiny. In spite of clear evidence that fungi and especially clinically relevant mold that are known to be toxigenic on at least three levels, are known to be allergenic, are known producers of carcinogens, are known to cause infections as common as Athlete's Foot (onychomycosis), cause of respiratory disease and other conditions in those fully immunocompetent/non HIV and countless other conditions in those that have a compromised immune system or HIV legal cases are being dismissed every day for failing to meet evidentiary standards. I review over 100 legal cases a year at various stages of litigation and much too often, too late-typically on appeal, when discovery or the record is closed or just fatal evidence is unknowingly been allowed to be introduced into the record by lay experts or left without a competent rebuttal. It is really disheartening for me understanding this as a lawyer, as a clinical health advocate and a indoor environmental health investigator knowing that inexperienced litigators are just not putting together a proper case for both defendants or plaintiffs."

"In Fraser, the New York Court of Appeals (a higher court than county Supreme Courts) affirmed a New York County Supreme Court ruling in respect to the admissibility of scientific and medical evidence, denying admission in a ruling that raised the burden of proof for plaintiffs."

"The case involved a family in a Manhattan apartment.  The family, the plaintiffs were seeking millions of dollars in damages, claimed that water leaks resulted in the growth of mold in their apartment causing them to suffer headaches, conjunctivitis, rhino- sinusitis, respiratory and neurological conditions. The defense countered that plaintiff's theory of causation was not reliable citing conflicting and inconclusive studies and publications by the scientific and medical communities, motioned the Court to prevent the medical experts from testifying at trial."

"After a Frye hearing to determine whether the subject of the proposed expert testimony is generally accepted in the relevant scientific communities the medical doctors testified and the court admitted into evidence peer reviewed studies, papers and other publications. After a full review of the testimony and the scientific and medical literature, the court found that the plaintiffs “failed to demonstrate that the community of allergists, immunologists, occupational and environmental health physicians and scientists accept the theory that mold and/or damp indoor environments cause illness.” The court dismissed all of the mold-related personal injury claims."

Q. How could the case have turned out differently?

"In my opinion mold related illness or injury cases must be tried as infection cases and that standard of proof close to "beyond a reasonable doubt" not just "the preponderance of the evidence" which is the common standard for civil cases is my standard that must be applied. Until that standard of proof is applied and obtained litigants will nearly always fail to meet the evidentry burden. Fortunately if, when and where that evidence does exist or not exist will determine whether the plaintiff or defendant prevails."

"I reviewed the evidence that was ruled inadmissible and in my opinion even if the evidence was allowed at trial I do not see the plaintiff having prevailed when scientifically challenged and rebutted. There just was no "smoking gun" due to the fact that the required testing was not performed. I am generally in agreement and very familiar with the 'scientific and medical reports' proffered from clearly some of the top scientists in their respected fields. Yet nowhere in the record did I find what would have been that conclusive piece of evidence. The plaintiff would not have prevailed so in effect the defendant prevailed but for the wrong reason. But on the other hand if in fact the plaintiff's were so injured proper testing would have disclosed such and the case would have proceeded to a just finding to make the the plaintiff 'whole'."

Q. What do attorneys need to know about mold related cases?

"Nearly every mold case is different and must be handled so. Mycotoxicosis, infection, illness and diseases must be understood. It is almost impossible for an inexperienced attorney to build a mold health injury case and expect to prevail in such a case without consulting and obtaining the guidance of a clinical research medical mycologist that has reviewed thousands of mold health cases, consultant to hundreds pending litigation and reviewed countless medical studies, especially one that is also legally trained. Counsel should understand the scope of the related science required to identify and obtain the evidentry proofs that are available to prevail. There is so much more that can be done. Understanding the case as I do prevents a waste of resources, time and effort."

Questions - consultations may be directed to:

Abstract/squib from New York Court of Appeals Clerk's Office

Vol. 29 - No. 7

2/20/09

COURT OF APPEALS NEW FILINGS

Preliminary Appeal Statements processed by the Court of Appeals Clerk's Office

February 13 through February 19, 2009

Each week, the Clerk's Office prepares a list of recently-filed appeals, indicating short title, jurisdictional predicate, subject matter and key issues. Some of these appeals may not reach decision on the merits because of dismissal, on motion or sua sponte, or because the parties stipulate to withdrawal. Some appeals may be selected for review pursuant to the alternative procedure of Rule 500.11.

The Court welcomes motions for amicus curiae participation from those qualified and interested in the subject matter of these newly filed appeals. Please refer to Rule 500.23 and direct any questions to the Clerk's Office.

FRASER v 301-52 TOWNHOUSE CORP.: ST Dept. App. Div. order of 12/30/08; affirmance with dissents;sua sponte examination whether the order appealed from finally determines the action within the meaning of the Constitution;EVIDENCE - SCIENTIFIC EVIDENCE - FRYE HEARING - PRECLUSION OF EXPERT EVIDENCE ON WHETHER ALLEGED DAMPNESS AND MOLD CONDITION IN DEFENDANT'S BUILDING CAUSED PLAINTIFFS' HEALTH PROBLEMS;Supreme Court, New York County granted plaintiffs' motion for reargument and renewal of an October 5, 2006 Supreme Court order,which, after a Frye hearing, granted defendants' motion to preclude plaintiffs from offering certain expert evidence at trial and granted defendants summary judgment dismissing plaintiffs' causes of action based on personal injury, and, upon reargument and renewal, adhered to the original determination;App. Div. affirmed.

Vol. 29 - No. 7 page 2

*counsellor at law, a non-attorney lawyer, not at bar, accepting only select pro bono cases court representation only on application to and admission by court.