HABITAT

APARTMENT MOLD AND DAMPNESS

Apartment Mold and Dampness

If you believe you've suffered personal injury from mold or a damp indoor environment, you have no case for suing a cooperative corporation or condominium association — at least according to a September 27, 2006, New York State Supreme Court hearing decision that is, regardless, unlikely to be the last word.

The action Fraser v. 301-52 Townhouse Corp. was brought to recover for personal injuries allegedly arising from the plaintiffs' water-damaged apartment. Plaintiffs Colin and Pamela Fraser alleged that living in their first-floor and basement apartment at 301 East 52nd Street created rashes, nasal congestion, hypersensitivity to mold, asthmatic symptoms, repetitive and pervasive upper respiratory infections and other ill effects. The defendant moved for a hearing to determine whether the plaintiffs' theory — that mold in their apartment caused them respiratory problems — was generally accepted in the scientific community and whether the methodology used to measure the mold was within generally accepted scientific methodology.

A ten-day hearing encompassed more than 1,000 pages of testimony and more than 70 scientific articles and books.

The Fraser Family

In August 1996, Colin Fraser, then 44 years old and working from home, moved with his family into the co-op apartment under discussion, and he developed a leg rash, lethargy, focusing and hearing problems, congestion, nasal mucus production and throat itchiness. Pamela Fraser had worked with her husband since 1997, and after moving into the apartment reported developing similar problems. Colin's symptoms improved when he and his family moved to Woodstock, N.Y, in December 2002. By the following July 2003, immunological and allergy testing for him showed he was normal. A pulmonologist's evaluation showed Colin had a restrictive lung pattern, and the doctor concluded Colin had a history of acute irritant allergic-type reaction while he was living and working at co-op apartment, and that found that Pamela suffered rhinosinusitis and environmental airway disease and had developed allergic and irritant-type reactions as a result of living there.

The couple's daughter, Alexandra Fraser, was born on November 21, 2001, and moved from the co-op in December 2002. Her parents recounted that Alexandra developed health problems while living in the apartment. She was diagnosed with an upper respiratory infection, and though doing better since moving to Woodstock, had pneumonia in 2004 and a history of respiratory problems.

The court considered roughly 70 peer-reviewed, scientific writings, articles and books which, except for one article, said research had not established that indoor exposure to mold caused the symptoms for which the Frasers sought recovery.

Correlation, Not Causation

Although some of the literature found that indoor mold exposure or dampness had an "association" with transient upper respiratory problems in adults or a "strong association with asthma in children," the court said that these findings fell short causation.

Moreover, it was generally accepted in the scientific community that standard, reliable methods of measuring indoor airborne mold do not exist and that multiple airborne sampling must be done on different days — rather than on a single day, as with the Frasers' apartment — to get an accurate reading.

After reviewing the scientific data and the opinions of experts, Judge Shirley W. Kornreich found that two of the doctors who testified were not objective, in that they had strongly held views on the subject of mold and a stake in advancing those views. Further, she found that the opinions of one of the physicians were not in keeping with the bulk of the scientific literature and often were discredited even by articles he himself had edited or written.

She found the second doctor credible, but that he was a clinician and not a researcher; therefore, his testimony about allergy to mold was based upon his observations of individual patients and their histories. The court credited his testimony as to the general concepts of allergy, but did not find him to be an expert in epidemiology or the causation of disease, if any, by mold or a damp environment. She found the third doctor credible, knowledgeable and impressive.

In determining the admissibility of questioned-expert testimony at trial, New York adheres to the traditional standard as explicated in Frye v. United States. This oft-cited "Frye standard" says that an expert may testify regarding novel scientific principles, procedures or theories if he or she has gained general acceptance in the relevant scientific community.

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