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 infectious and carcinogenic 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 gate keeping" in determining what evidence is allowed. 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 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 numerous cases every 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. It is really disheartening for me understanding this as a legal counsellor for select personal injury matters, as an advocate for related education and a clinical health investigator knowing that inexperienced litigators are just not putting together a proper case for either defendants or plaintiffs. A plaintiff contacted me today for a consultation - A clinical doctor, that already had retained experts in the medical field and had already amassed over $200,000.00 in legal and expert fees, only to find the wrong facts were being argued, for a case that was just not sustainable. It still surprises me, that I continue to get such calls. Attorneys must know, that toxic mold litigation is highly complex due to too many factors that are not considered. Clients would be wise to direct their attorney to consult bona fide experts early on for guidance for mold 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 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 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. Fortunately if, when and where that evidence does exist or not exist will determine 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, has now been spoiled and 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 clinical integrations do not exist. They are performed only to identify if in fact it is a 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 understating of fungi, related mycotoxicosis, infection, illness and diseases - a fully qualified and experience 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 case as I do, prevents a waste of resources, time and effort."

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

"For those attorneys that are considering contingency cases this is especially important. I have on a few 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 contingency cases I suggest attorneys have the sC-IV level protocol of investigation an reporting especially if their are any clinical questions (mycoses, mycotoxicosis,....... "

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