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
 
  joseph dumanov
Prof. J Dumanov, Medical Mycologist, Medical Toxicologist, 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)and JsCI)

FOR THE INDOOR ENVIRONMENTAL HEALTH SCIENTIST

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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 and every foreseeable aspect, point of law relating to the case is challenged-including, unfounded claims of estopple, as in one of the recent cases. In spite of clear evidence that fungi, and especially clinically relevant mold fungi being present 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 with 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 times at the eleventh hour, sometimes on on appeal, when discovery or the record is closed or just fatal 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, as an advocate for related education, and a indoor health investigator knowing that inexperienced litigators are just not putting together a proper case for both defendants or plaintiffs. A plaintiff contacted me today for a consultation - a clinical medicine 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 (failed to demonstrate causation) were being argued in a case that is 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 such experts early on for guidance for mold related cases. "

"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."

"This 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?

"For a plaintiff, or injured party for mold related illness or injury cases all must be tried with entry into the record of strong and conclusive evidence that only experts can attest to if in fact the evidence exists. It appears that the bar has been raised higher and standard of proof for mold injury 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 proerly proffered, 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 still 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 nor was there the necessary expert testimony. 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, and 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. The most successful legal position must be determined, and that can not be done without a full understating of fungi, related mycotoxicosis, infection, illness, disease, host status and a multitude of additional factors - a fully qualified and experienced highly integrated medical specialist must be consulted in every case. It is almost impossible, in part, due to "Public Policy Exception" in the law, and often state or local political related issues.

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 must be done in preparing a case. I have found that nearly all mold sampling, mold testing and related mold lab reports for the purpose of personal health injury have little to no probative value and are routinely dismissed upon my review and analysis. I do not care who did the inspection, it always amounts to nothing more than "bean counting" and the counts are rarely understood. For clinical purposes, it far more complex than anyone would imagine this is why there are no true state or national standards - it is just not understood but by a few scientists. Our understanding these specialized cases "fast tracks" them and prevents a waste of resources, time and effort. "

Q. You mentioned the "Public Policy Exception" in the Law, what role does that play in the legal process?

"Every legal jurisdiction, where judges are appointed (not elected), there is the inevitable political lobbyist influence and bias involved in the adjudication. Different corporate interests in America are served this way. Ask your attorney about the possible affect that policy may have on the outcome of your case and the best way to manage your case. When it comes to a rental or co-op managed properties all clients are encouraged to work out problems with management to simply resolve any believed issues. Such polices have a practical purpose, and in these cases it serves to protect property owner and managers from frivolous and baseless owner-rental-tenant lawsuits. Often it is best just to move out if agreement can not be reached while preserving your right to sue at a latter date by collecting all the evidence before vacating the home. In such cases your attorney should be asked to try to get your deposit back. A full understanding of your local courts' rules of evidence as commonly applied in all major metropolitan areas throughout America and the affect such polices may have upon your final outcome must be fully understood by both you and your competent, knowledgeable and experienced legal counsel."

Questions - consultations may be directed to:

MEDICAL MYCOLOGIST

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

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
Kornreich, J.

 

*Certified for Clinical Interests in the practice for the field of Industrial Hygiene. No association with the American Board of Industrial Hygienists and their CIH schema. We are certified specialists in related clinical medicine.

**legal counsellor(5), a non-attorney lawyer, not at bar, accepting only select pro bono cases court representation only on application to and admission by 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 privilege for a fee to represent clients in court and 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 legal system is a monopoly and the courts protect that monopoly by refusing to define the term lawyer due to the fact such a definition will have to included real estate brokers, paralegals, legal assistants, tax prepares and others that require legal knowledge. The Attorneys' first duty is to the court of which they are a member, then to the client. See Corpus Juris Secundum and American Jurisprudence. Esquire does not mean attorney.

Prof Dumanov possess a minor degree of law, is not licensed to practice law in any state, and since 1995 has authored several law books in the interest of civil rights law and justice relating to computer related crime, employee and worker's rights   and  social legal issues associated with injustice relating to youthful offenders.

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