More on Mold

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In a recent decision, the New York State Court of Appeals[1] has resolved conflicting lower court decisions we have reported in previous memoranda[2] and raised the bar for the successful prosecution of claims based on alleged injury from mold.  Although cooperatives and condominiums will still be subject to such claims, the Court made clear that the claims should be judged based on the strict application of the evidentiary rules applicable to expert scientific evidence.[3]  In the case before it, the Court dismissed the claim because the evidentiary requirements had not been satisfied.

The decision reviewed the two casual determinations required to give credence to expert testimony.

First, the expert must establish (or discredit) a general causal link between a condition and a result.   The expert must show that the relevant scientific community generally accepts that a condition can cause the result complained of.   In the instance of mold, it must be shown that it is generally accepted in the scientific community of allergists, immunologists, and occupational and environmental health physicians that exposure to mold results in the respiratory illnesses of which plaintiff complained.

Second, there must be evidence of specific causation — that this plaintiff was exposed to a sufficient quantity or concentration of the mold to cause the plaintiff’s respiratory illnesses.

The Court concluded that in 2008, the time the scientific evidence was presented in the instant case, the relevant scientific community did not accept the general causal link between mold and respiratory illnesses.  This conclusion will have consequences for a broad swath of pending and potential claims of mold-related respiratory illnesses.  While the Court acknowledged that the scientific consensus can change over time, it will be difficult for plaintiffs to succeed in claims of mold-related respiratory illness, absent proven allergies, direct infection or ingestion of moldy food.  They will have to establish a change of the relevant scientific consensus.

The Court also observed that, even if the scientific community did generally accept a causal link between mold and respiratory illness, the plaintiff in the instant case had not made a sufficient showing of specific causation by exposure to mold.   There was no proof as to the specific molds, or quantities of molds, to which plaintiff was exposed and no proof that her illnesses could not have originated from some other cause.

Please bear in mind, however, that while the ability of plaintiffs to prosecute cases for respiratory illness from mold without specific allergies, ingestion or infection, has been greatly impeded, mold still may cause property damage for which a landlord or board could be held liable.  It remains important that water damage and mold conditions be promptly and adequately addressed.

If you have any questions concerning these decisions or mold-related issues, please call us.

 

[1] Cornell v. 360 West 51st Street Realty, LLC, 22 N.Y.3d 762, 9 N.E.3d 884, 986 N.Y.S. 2d 389 (2014).

[2] Mold, No. 11, October 5, 2006; Mold Revisited, No. 23, June 21, 2012.

[3] The reasoning of the case does not apply to claims by plaintiffs who are allergic to molds, who have been directly infected by a fungus, or who have ingested moldy food. Plaintiff alleged a variety of illnesses such as headaches, fatigue, itchy eyes, rashes, asthma, etc., resulting from dampness, mold, and dust in her first-floor apartment and the basement below.

 

This memorandum was initially issued by the cooperative/condominium practice group of Balber Pickard Maldonado & Van Der Tuin, PC which joined Smith, Gambrell & Russell, LLP on February 1, 2017 and now practices as part of SGR’s cooperative/condominium practice group.

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