Colin Fraser v. 301-52 Township Corp.

This decision is helpful for owners of residential property in New York, including cooperative and condominium boards. It 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. It is not the last word.

Is there a cause of action for personal injury from mold or a damp indoor environment? The answer was “no” in Colin Fraser v. 301-52 Township Corp., a case of first impression and one of significant importance for co-op and condo boards and their managers.

This action was brought to recover for personal injuries allegedly arising from the plaintiffs’ water-damaged apartment. All allegations of personal injury except for respiratory problems, rash, and fatigue, were withdrawn. At the hearing, the plaintiffs alleged that the following health problems resulted from living in the apartment: headache, rashes, nasal congestion, frequent coughing, sore throat, fatigue, itchy and swollen eyes, sneezing, mental and emotional distress, anxiety and depression, hypersensitivity to mold, asthmatic symptoms, repetitive and pervasive upper respiratory infections, and nightmares. The defendant moved for a hearing to determine whether the plaintiffs’ theory of the case – that mold in their apartment caused them respiratory problems – was generally accepted in the relevant scientific community and whether the methodology used by the plaintiffs to measure the mold was within generally accepted scientific methodology. The hearing later was expanded to address causes of respiratory problems by water-damaged buildings.

A ten-day hearing followed, encompassing more than 1,000 pages of testimony and the introduction of more than 70 scientific articles and books.

A March 31, 2002, Olmstead environmental survey of the plaintiffs’ apartment was introduced into evidence to demonstrate its methodology and results. The report described the six-story, brick building in which the apartment is located as a concrete and steel structure with plaster walls, located on the north side of 52nd Street, east of Third Avenue. The apartment consists of the first floor and basement level of the building. Air, bulk, and wipe (surface or swab) samples were collected on March 13, 2001. A bulk sample is material taken by direct scrape onto glass slides, by processing of sample materials, by pressing clear cellophane tape on a surface, or by using a special cassette and vacuum pump to vacuum a surface. One air sample was taken from the backyard garden, and two air samples were taken in the basement office, near the glass windows. The report noted that “there are no regulatory or reference levels of mold growth” and “no regulatory standards or recommended standards for numerical levels of bioaerosols in air.”

The Olmstead testers found that the outdoor air sample was dominated by Basyidiomycetes mold with a total mold level of 171 colony forming units per gram of material (cfu/g). The two indoor air samples were dominated by Aspergillus versicolor mold with 495 cfu/g and 836 cfu/g, amounts the report described as “clean.”

Two bulk samples were taken, one from the wall along the glass door and one from the wood floor at the north windows. The bulk sample from the wall showed no detectible mold growth. The one from the floor showed 209,000 cfu/g. Wipe samples were taken from the northeast corner wall by the glass doors and from the wood floor near the glass doors. The wipe sample from the wall had 14,000 cfu/g dominated by Aspirgillus versicolor, and the floor sample merely had elevated mold growth, without any cfu/g count, dominated by Rhodotorula glutinis.

March 2005 medical reports for each of the three plaintiffs offered some interesting information. Cohn Fraser, who was 44 years old at the time, worked from home, was not exposed to dangerous chemicals, and had four cats during all relevant periods. He denied a history of allergy, asthma, or eczema. In August 1996, he and his family moved into the apartment under discussion at 301 East 52nd Street, and he developed a leg rash, lethargy, focusing and hearing problems, congestion, nasal mucus production, and throat itchiness. His symptoms improved when he left the apartment. In December 2002, he and his family moved to Woodstock, New York, and he felt better. Sporadically, he still had leg rashes, and he continued to complain of memory, focus, and stamina problems. When in damp, dusty areas, he would get a sore throat or sneeze, had eye irritation and itchiness, and produced mucus. By July 2003, however, immunological and allergy testing for him showed he was normal. When evaluated by a pulmonologist, Fraser’s pulmonary function studies showed a restrictive lung pattern. The doctor concluded “that Mr. Fraser had a history of acute irritant allergic-type reaction while he was living and working at his previous apartment at 301 East 52nd Street.”

Pamela Fraser had worked with her husband since 1997. She moved into the co-op apartment and reported developing problems related to her nose, teary eyes, itchiness, productive cough, shortness of breath, sore throat, wheezing, physical and mental fatigue, forgetfulness, and depression. Neuropsychological evaluation found significant cognitive impairment. Mrs. Fraser stated that she felt better since moving to Woodstock, but still had respiratory problems and suffered from fatigue and memory loss. Other than allergies to penicillin and sulfa drugs, Mrs. Fraser had had no allergies or asthma, but had been diagnosed with lupus, hypothyroid, anemia, and depression. When tested in 2003, Mrs. Fraser showed a reaction to house dust, but was otherwise normal. When seen by a pulmonologist in 2005, the pulmonologist found rhino sinusitis and environmental airway disease. The doctor concluded that Mrs. Fraser had allergic and irritant-type reactions as a result of living in the co-op.

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. She has been doing better since moving to Woodstock, but had pneumonia in 2004 and frequently suffered from colds. The pulmonologist found a history of respiratory problems.

The court considered roughly 70 scientific writings, articles, and books that were peer-reviewed and published in journals generally accepted in the medical and/or scientific community. They demonstrated that, with the exception of one article, the scientific research had not established that indoor exposure to mold caused the symptoms for which the Frasers sought recovery.

Although some of the literature found that indoor mold exposure or dampness had an “association” with transient upper respiratory problems in adults (symptoms similar to those of the common cold), or a “strong association with asthma in children,” the court said that these findings fell short of a finding of “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 on different days must be done to get an accurate reading. A summary of the articles admitted into evidence was listed in the decision.

For example, “Respiratory Morbidity in Office Workers in a Water-Damaged Building,” published in January 2005, reported that occupancy in a water-damaged building “can be associated” with the onset and exacerbation of respiratory health conditions. The study used allergen skin-prick testing using dust-mite mix, cockroach mix, cat hair, grass mix, ragweed mix, common- weed mix, tree mix, outdoor mold mix, aspirgillus mold mix, and penicillium mold mix. Atopy, the genetic tendency to develop classic allergy diseases, was defined as at least one positive skin test of the seven common antigen extracts, excluding the mold extracts. The study found an increase in asthma incidents in the period after building occupancy. It also noted that there were higher nasal and eye symptoms than lower respiratory symptoms, but less than those of most U.S. adults; lower rates of wheezing and asthma than in the adult U.S. population.

After reviewing the scientific data and the opinions of experts, the court found that two of the doctors who testified were far from objective. Two of the three men appeared to have strongly held views on the subject of mold and a stake in advancing those views. Further, 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. Moreover, the court determined that his testimony was based on clinical, differential diagnosis in individual cases, and because clinicians did not write them, he specifically discounted published studies by epidemiologists, scientists, and well-regarded institutions.

The court said that the second doctor, though credible, was a clinician, not a researcher. 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. Finally, the court found the third doctor credible, knowledgeable, and very impressive. Accordingly, based on the credible testimony of the witnesses and the scientific literature introduced, the court made its findings.

In determining the admissibility of questioned expert testimony at trial, New York continues to adhere to the traditional standard as explicated in Frye v. United States. The Frye court noted that “when a scientific principle or discovery crosses the line between the experimental and demonstrable stages…the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” From this discussion grew the oft-cited “Frye test” – an expert may testify regarding novel scientific principles, procedures, or theories if he or she has gained general acceptance in the relevant scientific community.

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 found most compelling by the court – the Institute of Medicine of the National Academies’ 2003 publication and the 2006 position paper of the American Academy of Allergy Asthma and 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.”

The bald statements of one of the testifying doctors, unsupported by the scientific literature and refuted by three distinguished bodies influential in the field of immunology and occupational health, did not meet the “Frye standard.”

This standard was not met by anecdotal or individual case studies, either. Rather, Frye required that the defendants, the Frasers, prove that the idea of illness caused by mold and/or damp indoor environment be generally accepted by the relevant scientific community. Here, the Frasers failed to demonstrate that the community of allergists, immunologists, occupational and environmental health physicians, and scientists accept their theory – that mold and/or damp indoor environments can cause illness.

In addition, even were there a showing of causation here, the court held that the case could not go forward. It became clear at the hearing that Frasers wished to argue that moisture in the Fraser apartment caused them ill health. The Frasers contended that a damp indoor environment produced bacteria, mold, endotoxins, beta-glucans, and other toxic materials, which caused the Frasers’ symptoms.

However, 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 two measurements for mold in a short time span. The method of measurement used here was insufficient to give a valid mold reading.

Then, too, the hearing evidence demonstrated that there were no standards for what amount of mold was excessive in terms of human health and the indoor environment; there were no generally accepted standards for measuring indoor airborne mold; there were no generally accepted standards for the acceptable amount of mold in indoor air; there are many types of mold, each of which have different or no health effects; there are no standard scientific definitions for “dampness” or “moisture.” Skin prick tests for allergy, which were not done here, were deemed the most reliable way to test for allergy by the literature, and by the three testifying doctors; and the IgE test performed on Colin and Pamela Fraser, which is related to allergies, did not show allergy to mold.

Accordingly, it was 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.