For several years, landlords in New York have defended against personal injury liability for mold, arguing that Fraser v. 301-52 Townhouse Corp., 870 N.Y.S.2d 266 (2008), established a categorical rule that epidemiological studies were insufficient to support a finding of causation for respiratory illnesses. In a recent Appellate Division decision, Cornell v. 360 West 51st Street Realty, LLC, 939 N.Y.S.2d 434 (App. Div. 2012), the Court clarified Fraser and held that the scientific evidence in each case should be evaluated under the Frye test, thus opening the door to mold cases.
In Cornell, plaintiff Brenda Cornell brought a personal injury suit against her landlord for a respiratory illness she allegedly suffered due to mold released into the air after the landlord began removing debris from the basement as part of a renovation. At trial, the Court heard testimony that the damp conditions in the basement had created an environment of fungus and that years of spores and dust were disturbed by contractors during the renovation. It was further revealed that indoor mold levels in the apartment were unacceptable. Plaintiff’s treating physician stated in an affidavit that the mold contamination and damp conditions were recognized causes of various respiratory problems. The physician stated that, in arriving at his conclusion, he used a universally accepted methodology that physicians use to assess causation and diagnosis of illnesses. He further relied on a variety of peer-review studies.
Defendants eventually cross moved for summary judgment, which was granted by the Trial Court. The lower court based its decision on Fraser in which the Court found that the epidemiological evidence presented by defendant’s expert, who happened to be the same expert for Cornell, was not sufficiently strong to permit a finding of general causation. In so doing, the Court created a categorical rule, which required dismissal of plaintiffs’ toxic mold claims.
The Appellate Court reversed the lower court and reinstated the complaint. The Appellate Court held that Fraser specifically did not set forth a categorical rule that mold and dampness can never be causally linked to a disease. The Court held that the expert evidence presented satisfied the scientific reliability test set forth in Frye v. United States, 293 F 1013 (D.C. Cir. 1923) and that a clear relationship has been shown between the conditions in plaintiff’s apartment and the disease she suffered. The Court stated that, “[s]cientists do not report their results in terms of black and white causality, but rather, in terms of the strengths of the associations found.” The Court continued to opine that, “[t]hese associations have been found sufficiently strong by the literature as to be indicative of a causal relationship, plaintiff’s evidence must be deemed to meet the Frye standard.”
In sum, plaintiffs should not be dissuaded by Fraser, but rather encouraged by Cornell when contemplating actions for toxic mold related injuries. The courts will continue to apply the Frye standard on a case by case basis and no categorical rule shall be followed. This is not to say that proving causation is an easy road. Indeed, Cornell offered a variety of expert testimony including a physician, an environmental investigator, an environmental consultant and a microbiologist. However, where there is a will there is a way and, in this case, plaintiff will have an opportunity to prove her case and, in turn, has helped clear a path for aggrieved tenants moving forward.
Click here for information on the New York State Toxic Mold Task Force.