Journal of subClinical Investigations©
Clinical Environmental Epidemiology in the News
Medical Mycologist and Legal Counsellor (non-atty) Comments on the Rising Burden at Bar in Toxic Mold Injury Cases
Prof J Dumanov, Medical Mycologist, Certified Clinical Environmental Hygienist™ and legal counsellor ** reviews and comments on the recent case law relating to toxic mold injuries in re FRASER v 301-52 TOWNHOUSE CORP for Indoor Environmental Health News (IEHN).
New York, 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 involving mold. What is happening in the courts?
"Upon closer review, the standard is the same but the evidence is now under increased scrutiny and review by the courts by a process referred to as "judicial gatekeeping" in determining what evidence is allowed. In spite of clear evidence, that fungi, and specifically clinically relevant mold fungi, 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 diseases 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 am asked to consider or review over 100 legal cases a year at various stages of litigation, and much too often, too late, at the eleventh hour-typically on appeal, when discovery or the record is closed or just fatal or wrongful evidence has unknowingly been allowed to be introduced into the record by lay experts, or left without a competent rebuttal. In a rare, and exceptional case, involving the "best interest of a child", in a landlord tenant matter, the Court allowed my report and testimony even after close of discovery, resulting in a finding, and recovery for the plaintiff and their mold effected children.
It is really disheartening, for me understanding this as a counsellor for select claimed health risk exposure matters, as an advocate for related education and as a clinical health investigator, knowing that inexperienced litigators are just not putting together a proper case for either defendants or plaintiffs.
For example, a mold/fungi infected plaintiff contacted me recently for a consultation - he happened to be a medical doctor (GP), unknowingly having worked in a mold contaminated office for years, believing he had a fungal exposure related disorder, field a lawsuit against the office property owner. The doctor had already had retained experts in the medical field, and had already amassed over $200,000.00 in legal and expert fees, only to find during discovery unqualified testimony, and the wrong facts were being argued in a case that was just not sustainable. It still surprises me, that I continue to get such calls. Attorneys must be aware, that toxic mold litigation is highly complex due to too the many clinical factors that must be considered.
Clients would be wise to obtain a subClinical investigation™, with our appropriately prescribed protocol, that will include the necessary investigative studies, and concluding report for themselves, and as guide for their attorney by a bona fide trial experienced expert for guidance. For any high order / important mold exposure is mandatory for such related cases."
in re FRASER v 301-52 TOWNHOUSE CORP
"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 their reports. After a full review of the testimony, 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 exposure cases must be tried as infection cases with "demonstrable causation"and because the bar has been raised higher, that standard of proof now is closer to "beyond a reasonable doubt" not just "the preponderance of the evidence" which is the common standard for civil cases which is the standard that must be applied. Until that standard of proof is applied and obtained, litigants will nearly always fail to meet the evidentiary burden. If, when and where that evidence does or does not exist will determine the outcome when qualified experts support the conclusion, whether the plaintiff or defendant prevails."
"I reviewed the evidence in Fraser 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. It just did not meet the burden of proof due to the fact that the required scientific testing was not performed, and now has now been spoiled and/or no longer available. 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 sustainable evidence. The plaintiff would not have prevailed, so in effect the defendant would still have prevailed, but for the wrong reason. But on the other hand, if in fact the plaintiffs 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 health injury claims and cases?
"First you need to know that the common mold inspections are not for clinical forensic purposes. The required medical integrations do not exist. They are performed only to identify if in fact it is or not a mold fungus. Too many cases rely on such reports only to be dismissed instantly upon competent review. For clinical purposes nearly every case is different and must be understood and handled as such. The most successful line or angle of attack, commonly called "cause of action"must be determined and that can not be done without a full understanding of required applied clinical differentials in consideration of mold fungi exposures risks including related mycotoxicosis, immunology, infection, illness and diseases - a fully qualified, experienced, highly integrated medical expert must be consulted in every case. It is almost impossible for an inexperienced attorney to build a mold health injury case(for defendant or plaintiff) and expect to prevail in such a case without consulting and obtaining the guidance of such an expert 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 and certified. Counsel should understand the scope of the related science required to identify and obtain the evidentiary proofs that are available to prevail. There is so much more that can be done. Understanding the cases as I do, with such integrations, prevents a waste of resources, time and effort."
Q. What do attorneys need to know about accepting mold related cases?
"For those attorneys that are considering contingency cases this is especially important. We know that attorneys work very hard, and we routinely give free practical initial consultations for mold cases that attorneys may consider for litigation. I have on many occasions provided guidance for such cases after the attorneys had invested in such cases only to discover later there was no case at all due to the wrong theory of causation. For possible cases I suggest attorneys contact me for an initial free consultation to determine if a sC-IV protocol of investigation and reporting especially if there are any clinical/medical questions involving mold related diseases; mycoses, mycotoxicosis,........"
Abstract/squib from New York Court of Appeals Clerk's Office
Vol. 29 - No. 7
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
Fraser v 301-52 Townhouse Corp.
2006 NY Slip Op 51855(U) [13 Misc 3d 1217(A)]
Decided on September 27, 2006
Supreme Court, New York County
**legal counsellor (5) ,may be a non-attorney, a legal assistant or legally certifed or by degree even when not at bar. They may represent select clients for pro bono publico cases for court representation only upon application and admission by a court. See also and understand: Attorney. A lawyer is anyone formally trained in law by degree or certification, an attorney is a lawyer that has taken a bar exam and an oath of allegiance to the court and has been given the honor and privilege for a fee to represent clients in court. A legal counsellor is a lawyer that only provides consultation and does not have the privilege to represent a client in court because they have not taken oath of allegiance to the court of any given state or jurisdiction. This interpretation, varies from state to state. In some states, lawyers are not recognized in the rules of court, and therefore do not exist. The Attorneys' first duty is to the court of which they are an officer of, then to the client, and lastly, to their mental health counsellor : ). See Corpus Juris Secundum and American Jurisprudence. `