Mold Damages in New York
The New York Appellate Division was asked to resolve whether the use of expert witnesses in determining cases claiming damages as a result of exposure to mold. It stated that although previous decisions dismissed a case because of insufficient expert testimony it never disavowed the underlying theory that exposure to mold may, under certain circumstances, give rise to respiratory and other ailments.
Finding in Brenda Cornell, Plaintiff-Appellant v. 360 West 51st Street Realty, LLC, et al., Defendants, No. 113104/04 4810 (N.Y.App.Div. 03/06/2012), the motion court erred in finding that plaintiff’s proof was not “strong enough to constitute a causal relationship,” or that the methodologies used to evaluate her condition failed to meet the standard imposed on courts to limit expert testimony. It concluded that the focus of the inquiry into the expert’s qualifications should not be upon how widespread a theory’s acceptance is, but should instead consider whether a reasonable quantum of legitimate support exists in the literature for an expert’s views.
Since plaintiff’s expert’s opinions relating plaintiff’s condition to the mold infestation found some support in existing data, studies and literature, including studies that have found a statistically significant relationship between mold and various respiratory maladies, the appellate court concluded that standard is satisfied.
Plaintiff lived in an apartment rented from the defendants since 1997. The apartment is located directly above the basement area of the building. Plaintiff testified that she had occasion to walk through the public areas of the basement throughout her tenancy and described the area as damp, musty, and harboring bugs and mice. Floods in the summer of 2002 and 2003 resulted in water damage in the basement stairwell and on the walls of the basement. During the summer of 2003, a steam pipe broke in plaintiff’s apartment, releasing steam. In July 2003, after the pipe broke and water leaked in the basement, plaintiff noticed a small amount of mold in her bathroom. Plaintiff testified that when she entered the bathroom she began to feel ill, experiencing a body rash, shortness of breath, fatigue, disorientation and headaches. She testified that the landlord placed a dehumidifier in the bathroom and advised her to wash the area with bleach. Plaintiff did so and her symptoms disappeared.
On October 7, 2003, plaintiff left the apartment due to difficulty breathing. In November 2003, plaintiff informed defendant landlord that she was unable to live in the apartment due to the ongoing renovation work and was withholding rent for the month of November. Plaintiff moved in with a friend and never again slept in the apartment.
At the Civil Court trial, plaintiff’s experts testified that the damp conditions in the basement had created the ideal environment for growth of fungus, and that the contractors disturbed years of spores and dust when they cleaned out the basement.
Plaintiff relied on the affidavit of her treating physician, Dr. Eckhard Johanning. Dr. Johanning opined that exposure to damp buildings with excessive and atypical mold contamination was a recognized cause of respiratory health complaints and conditions such as asthma, rhino-sinutis, bronchitis, allergy, infections and irritant-type reactions of the skin and mucous membranes.
Dr. Johanning opined, with a reasonable degree of medical certainty, that plaintiff’s irritative and allergic-type symptomatology was caused by exposure to building dampness and excessive and atypical mold exposure, over time, at her apartment. In arriving at his conclusion concerning plaintiff’s physical health and its cause, Dr. Johanning considered plaintiff’s medical and occupational history and history of environmental exposure, other competing/confounding environmental/occupational exposures, a detailed physical examination of plaintiff, diagnostic laboratory studies, the medical and scientific literature, and details of the environmental and exposure data.
Dr. Johanning conducted a number of different blood tests/panels that included an evaluation of the liver, kidneys and immunological system, hormones (to assess thyroid function), protein chemistry, heavy metal analysis, urinalysis, allergy specific IgE and IgG, and respiratory function tests such as spirometry, inhaler studies and diffusion tests, and other examinations. Dr. Johanning opined that plaintiff still exhibited immune mediated hypersensitivity reactions (IG antibodies) to microbes typically found in very wet and damp environments, consistent with her medical history and exposure.
Dr. Johanning stated there was “no question” that the conditions existing in plaintiff’s apartment, including dust, microbial growth, mold, heavy metals and a diversity of fungi and bacteria that had come up through the floorboards and the air shaft in the apartment as a result of demolition work in the basement, contamination from flooding, as revealed by long-term water damage, as well as dust, standing water, moisture and streaking on the walls, “had a host of deleterious effects” on plaintiff’s health.
Basis for Expert Opinion
Forming his opinions, Dr. Johanning relied on a number of peer-reviewed studies, including a 2004 publication of the Institute of Medicine in the National Academies, entitled Damp Indoor Spaces and Health, relied upon by the Fraser plaintiffs, as well as two studies which post-date Fraser, a 2007 study entitled Excess dampness and mold growth in homes: An evidence-based review of the aeroirritant effect and its potential causes (28 Journal of Allergy and Asthma Proceedings, May/June 2007), and an article published in 2008 entitled Hydrophilic Fungi and Ergosterol Associated with Respiratory Illness in a Water-Damaged Building (116 Environmental Health Perspectives, June 2008). The first study reviewed the major epidemiological and biological studies, concluding that “[t]he preponderance of epidemiological data supports a link between exposure to dampness and excess mold growth and the development of aeroirritant symptoms,” and that studies “support the role of VOCs [volatile organic compounds] in contributing to the aeroirritant symptoms of occupants of damp and mold-contaminated homes.” The authors noted, in reviewing the data, that “[m]ultiple studies  have found a dose-response relationship between the numbers of indicators of dampness present and aeroirritant symptoms.” These studies found statistically significant relationships between visible mold growth and eye, nose and throat/respiratory symptoms.
The second study found that among workers in a building with long-term water damage, “respiratory illnesses showed significant linear exposure-response relationships to total culturable fungi.” The authors stated that they had found “significant linear exposure-response relationships between various microbial measurements (total fungi, fungi requiring Aw o 0.8, hydrophilic fungi, ergosterol and endotoxin) in dust and health outcomes (respiratory cases, epi-asthma cases, and post-occupancy asthma cases).” The authors found that the associations between health outcomes and fungi were mostly driven by exposure to fungi requiring Aw o 0.8, and specifically hydrophilic fungi in both floor and chair dust, that exposure to hydrophilic fungi in floor and chair dust was associated with about a two-fold increase in the chances of being a post-asthma occupancy case, and that of all the environmental variables, hydrophilic fungi in floor dust were most strongly associated with post-occupancy asthma cases.
The scientific evidence shows that exposure to molds, particularly the types of molds whose presence in plaintiff’s apartment was confirmed by sampling, i.e., aspergillus/penicillum, stachybotrys and chaetoium, can cause the types of ill effects experienced by plaintiff. Evidence offered on the motion easily satisfied the test of scientific reliability required by precedent.
The appellate court concluded that the Plaintiff adequately established specific causation. The evidence confirmed the presence of these types of molds in plaintiff’s apartment. Plaintiff’s expert opined that plaintiff’s exposure to these fungi, including their by-products such as allergens, mycotoxins, and microbial volatile organic compounds, caused plaintiff’s ailments. Plaintiff’s expert opined that plaintiff still exhibited immune mediated hypersensitivity reactions, as confirmed by IG testing, to microbes typically found in very wet and damp environments.
It is undisputed that exposure to toxic molds is capable of causing the types of ailments from which plaintiff suffers. Plaintiff’s expert, via differential diagnosis, arrived at the scientifically sound conclusion that exposure to the toxic molds in plaintiff’s apartment was a cause, within a reasonable degree of medical certainty, of her documented medical ailments.
Plaintiff’s expert and defendant’s experts all agree that mold is capable of causing the ill-health effects experienced by plaintiff. Defendant’s expert opined that “[m]olds can cause a wide spectrum of illnesses, including allergies, irritation, hypersensitivity pneumonitis and direct infection.”
The complaint was reinstated as against defendant 360 W. 51st Street Corp., and otherwise affirmed, without costs.
This decision has put the fear of litigation to owners of apartments and condominium developments in New York state because the original case keeping out the doctor’s testimony had dampened the number of cases. The fear is probably overstated. This case found extreme exposure of mold and fungi spores to a person who was amenable to disease-like symptoms from the exposure. That the doctor, in this case, was able to show some causal relationship from the exposure to mold and the illnesses complained of by the plaintiff.
This is the rule of law across the country whether applying Frye or Daubert. It is nothing new other than the fact that the court accepted as reliable the peer reviewed articles cited by the plaintiff’s expert, and the severity of the exposure. If the court, using its discretion, believes expert testimony should be submitted to the trier of fact because it is based on sufficient scientific background it will be admitted and if not, as in the previous New York case, it will not be admitted.
© 2012 – Barry Zalma
Mr. Zalma is the author of “Mold: A Comprehensive Claims Guide” published by Specialty Technical Publishers that can be purchased at its web site at http://www.stpub.com
Barry Zalma, Esq., CFE, is a California attorney, insurance consultant and expert witness specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud. Mr. Zalma serves as a consultant and expert, almost equally, for insurers and policyholders.
He founded Zalma Insurance Consultants in 2001 and serves as its senior consultant.
Mr. Zalma recently published the e-books, “Zalma on Insurance Fraud – 2012″; “Zalma on Diminution in Value Damages – 2012,”“Zalma on Insurance,” “Heads I Win, Tails You Lose — 2011,” “Zalma on Rescission in California,” “Arson for Profit,” “Insurance Fraud,” and others that are available at www.zalma.com/zalmabooks.htm.