The sole expert to testify that mold and/or damp indoor space causes health problems was the third doctor. However, the court said that the scientific literature introduced did not support his assertions. Instead, the two scientific documents that the court found most compelling — the Institute of Medicine of the National Academies' 2003 publication and the 2006 position paper of the American Academy of Allergy Asthma & Immunology — found no causative link. These two papers were issued by prestigious scientific organizations and, most importantly, reviewed the available research papers on the subject for validity. The papers concluded that there was insufficient evidence to support the contention that a causal relationship exists between health outcomes and damp and/or moldy indoor environments.

Indeed, the American College of Occupational and Environmental Medicine issued a formal position paper coming to the same conclusion: "Scientific evidence does not support the proposition that human health has been adversely affected by inhaled mycotoxins in the home, school, or office environment."

Getting Fryed

The court found that even though the most credible of the three testifying doctors claimed a causal link, this claim was unsupported by the scientific literature and refuted by three distinguished bodies influential in the field of immunology and occupational health. Therefore his testimony did not meet the "Frye standard." That standard required that the Frasers prove that the idea of illness caused by mold and/or damp indoor environment was generally accepted by the relevant scientific community. The Frasers failed to demonstrate this.

In fact, the court ruled, even had they shown causation here, the case could not go forward. The Frasers had contended that a damp indoor environment produced bacteria, mold, endotoxins, beta-glucans and other toxic materials, which caused the Frasers' symptoms. But moisture, bacteria, endotoxins, and beta-glucans were never measured in the Fraser apartment. Also, the scientific literature and the testimony of one of the doctors established that the method of mold-measurement used here was insufficient to give a valid reading.

Moreover, the hearing evidence demonstrated that there are no standards for what amount of mold is excessive in terms of human health and the indoor environment; that there are no generally accepted standards for measuring indoor airborne mold or for the acceptable amount of mold in indoor air; that there are many types of mold, each of which have different or no health effects; and that there are no standard scientific definitions for "dampness" or "moisture."

Additionally, skin prick tests were deemed the most reliable way to test for allergy, and were not done here.

Accordingly, the court ordered that the Frasers were precluded from introducing testimony demonstrating that mold caused their health complaints, and the Frasers' causes of action based upon personal injury were dismissed with prejudice.

This decision firmly establishes the view that mold concerns in apartment buildings — the latest environmental issue of the past 30 years — are unlikely to have the same impact as have such prior environmental issues as asbestos and lead-based paint. Mold is not as serious a health hazard as has been suggested elsewhere. Of course, the presence of mold in water-damaged environments still must be remediated expeditiously to mitigate property-damage claims. Nonetheless, until there is an appellate decision on personal injury from mold, it would be wise to view this decision cautiously.

Richard Siegler is a partner in the New York City law firm of Stroock & Stroock & Lavan.

Adapted from Habitat January 2007. For the complete article and more, join our Archive >>