Mold Up in the Air: Settled, by Arthur XanthosPermalink
Some background: the plaintiff in Cornell alleged that throughout her occupancy of a co-op apartment, the co-op building's "basement was in a wet, damp, musty condition"; that the radiator in her apartment's living room "leaked on numerous occasions" and "continued to leak and also released steam into the Apartment" despite the co-op’s attempts at repair; that in July 2003 she first noticed and notified the co-op that "there was mold growing in the [apartment's] bathroom," but the co-op "ignored" this condition; and that beginning in the first week of October, 2003, the landlord and/or its contractor performed demolition and/or construction work in the basement of the co-op building, permitting noxious dust, dirt, mold and debris to be released, which infiltrated her first-floor apartment. What were her injuries? The Cornell plaintiff claimed that "[i]mmediately after" the landlord and/or its contractor performed the work in the basement, she became dizzy, disoriented, covered with rashes, unable to breathe, light-headed, congested, experienced tightness in her chest, had severe headaches, had shortness of breath, had a metallic taste in her mouth, and experienced other physical symptoms.
At the Frye hearing (brought on by defense motion), the defendants used an immunologist/epidemiologist who assessed plaintiff’s claim that "a significant portion of her physical and psychological problems is related to adverse reactions stemming from exposures to molds," and, after review of her medical records and the relevant science, opined with reasonable medical certainty that there was no relationship between the medical problems experienced by Ms. Cornell and exposures to molds (i.e., no specific causation). The defendants’ expert also opined that a causal relationship between indoor residential mold and Ms. Cornell’s injuries was not generally accepted in the medical community (i.e., no general causation).
Plaintiff’s medical expert opined to the contrary, and pointed to numerous studies that supported an association between indoor residential mold and illness. But as the Court of Appeals explained, “studies that show an association between a damp and moldy indoor environment and the medical conditions that [plaintiff's medical expert] attributes to Cornell's exposure to mold (bronchial-asthma, rhino-sinusitis, hypersensitivity reactions and irritation reactions of the skin and mucous membranes) do not establish that the relevant scientific community generally accepts that molds cause these adverse health effects.” (The causation/association battle line was explained in detail in our January 16 entry.)
The Court of Appeals could have ended its decision there (since without proof of general causation, plaintiff must be turned away), but it went further: even assuming that the plaintiff in Cornell demonstrated general causation, she did not show the necessary specific causation. (For a theory of causation to survive under Frye, both prongs of causation – general and specific – must be proved.) The Court of Appeals decision alludes to the fact plaintiff failed to show specific causation because she did not set forth “exposure to a toxin, that the toxin is capable of causing the particular illness and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation)." The Cornell plaintiff’s expert had tried to prove specific causation by differential diagnosis. The Court of Appeals dismissed that attempt: “Differential diagnosis, of course, 'assumes general causation has been proven'". This last pronouncement is of incredible importance to the defense of toxic tort claims, as the number of clinicians who use differential diagnosis to support an opinion on causation is legion.
This Firm already has had opportunity to use the Cornell decision at the trial court level to our client’s advantage (see Benton v 80 Cranberry Street, in “Publications” above). Absent a major change in the science of mold illness, there is every reason to believe the next few years will see many more summary judgment decisions in favor of land owners and against mold plaintiffs.
Spoiling the Evidence – Spoiling the Case, by Arthur XanthosPermalink
Spoliation considerations arise often in premises liability and toxic tort cases. For example, if a plaintiff disposes of personal property that was damaged from a water leak, and the defendant has no other means of assessing the damage to that property, the court can dismiss the plaintiff's property damage claims. Similarly, if a plaintiff renovates or remediates his allegedly toxic apartment prior to giving the defendant an opportunity to test whether that apartment was truly toxic, then the court can dismiss plaintiff's claims relating to the toxic nature of the apartment. See, e.g., Theodoli v.170 E. 77th 1 LLC, 40 Misc. 3d 135(A)(N.Y. App. Term 2013).
In our experience, it is not uncommon that a plaintiff in a case we are defending disposed of her "moldy" clothes, or fixed her water-damaged walls, prior to bringing the lawsuit; but such actions leave the plaintiff open to spoliation penalties, possibly including the dismissal of the entire case.
A database search of reported New York State case law reveals 247 decisions from 2000 through 2006 that mentioned spoliation. In the next seven year period (2007 through 2013), the number of such decisions was 555. What accounts for the 225% increase in spoliation decisions? There are several reasons.
A motion for spoliation penalties is straightforward, can be made anytime -- pre-trial, in limine, or during trial, and has virtually no downside and significant potential upside. Further, and perhaps most relevant, courts in the First Department appear to be imposing stronger spoliation penalties more often than they have in the past.
Theodoli v.170 E. 77th 1 LLC, a case handled by this Firm, is illustrative of the trend toward stronger spoliation penalties. There, a tenant's mold and toxic tort claim was dismissed because he renovated his apartment prior to the defendants' environmental consultant gaining access to test the apartment. On motion, the environmental consultant testified that once an apartment is "cleaned", it is no longer possible to determine whether the apartment was previously toxic. So, because the tenant had destroyed crucial evidence and prevented the defendant from testing the apartment in its allegedly toxic state, his mold and toxic tort claim was dismissed. That decision came down in the Fall of 2013.
The start of 2014 saw the continuation of the judicial trend toward strong spoliation penalties. On January 9, 2014, the First Department came down with a spoliation decision in Malouf v. Equinox Holdings, 2014 N.Y. App. Div. LEXIS 163. Plaintiff Malouf injured herself on a Life Fitness treadmill at an Equinox gym. She sued the Equinox gym, which in turn sued the maker of the treadmill. Equinox, however, had disposed of the subject treadmill prior to the lawsuit; so no party was able to examine it. The court punished the Equinox for its spoliation by dismissing the Equinox's claim against the maker of the treadmill; the court also precluded the Equinox from arguing at trial that the treadmill in question worked properly -- a punishment which could be the functional equivalent of summary judgment for the plaintiff.
The trend in spoliation case law offers two simple lessons, one proactive and the other prophylactic. First, courts are more willing to entertain spoliation motions and less reluctant to impose strong spoliation penalties; therefore, counsel should be constantly mindful of the potential for making a spoliation motion, and should pursue diligently the discovery necessary to secure strong spoliation penalties against the adversary. Second, counsel should from the beginning advise the client on the need to avoid spoliation penalties, by preserving damaged property and by maintaining the status of any object, item, or environment that is crucial to the lawsuit.