Litigation in relation to toxic mold is certainly nothing new to the New York court system. Recently, the effects of toxic mold are again being debated and taking center stage. The initial ruling in Cornell v. 360 West 51st Street Realty, which dismissed the lawsuit initiated by Brenda Cornell, has now been reversed. Cornell claimed that she suffered a host of health problems related to mold in her apartment. This could have tremendous consequences for building owners as the link between mold exposure and illness is becoming clear.
The 3-2 decision of the Appellate Division, First Department reverses the initial ruling of Supreme Court Justice Marcy Friedman. Friedman has stated that her ruling was based on the previous mold case, Fraser v. 301-52 Townhouse Corp. During this case the judge felt that a clear link between mold and illness could not be established. The Cornell reversal is based in part on the fact that limited studies were performed and presented during the Frasier case. The Fraser ruling was also not meant to "set forth any general rule that dampness and mold can never be considered the cause of a disease."
Defense witness in the Fraser case included Bruce Kelman and Bryan Hardin, both of Vertiox, Inc. UCLA's Dr. Andrew Saxon was another key witness. Once the defense argument has been legitimized by the American College of Occupational and Environmental Medicine, the opinion of these three men was then considered to be the opinion of thousands of doctors with a vast knowledge of the effects of mold and related illnesses. This created a situation in which the statements of the defendants were viewed as public health policy. Despite compelling testimony that these statements were not the final say in the scientific community, the defense ultimately won out.
The details of the Cornell case are quite similar in nature to other mold related claims. Cornell moved into an apartment that was located just above the basement in 1997. The basement flooded in both 2002 and 2003. Soon after, the plaintiff visibly noticed mold within her bathroom. She claims that she felt sick each time she entered this room. The building was sold in late 2003, at which time the new owner began to prepare the basement for renovations. This included the removal of debris. During the debris removal process the symptoms of the plaintiff grew much worse, forcing her to vacate the apartment permanently.
Though it may seem that the initial dismissal was based solely on the outcome of the Fraser case, Appellate Judge Catterson did place part of the blame on the failure of the plaintiff’s experts to present facts based on "generally accepted science." This need was established in the Frye v. U.S. case. This case established to need for any new testing or theories to be considered acceptable within the general scientific community. Based on this, Judge Catterson felt that the testimony that was given on behalf of the plaintiff did not meet this requirement.
Expert testimony in the Cornell case included the testimony of her physician, Dr. Eckhard Johanning, who felt that dangerous mold was the cause of her symptoms. It was the opinion of Dr. Johanning that atypical mold, such as that found in damp buildings, can cause respiratory health problems such as asthma, sinutis, allergies, infections, and more. This opinion was formed based on many different blood tests and panels, as well as peer based studies. Though it is widely accepted that exposure to toxic mold can cause health problems, the doctor was presented with the task of proving that the specific mold types located in the plaintiff's building were indeed the cause of her health problems.
Despite this testimony, the court ruled in favor of the defendant. It remains to be seem what new testimony will be presented now that Cornell v. 360 W. 51st Street has been given a new life. The ruling reversal may turn out to be a landmark decision in regard to future toxic mold cases not only in New York, but throughout the country. No doubt, apartment and condominium owners will be following the case closely. Should a solid link between mold and illness be established in a court of law, building owners may face similar legal cases. At the very least, building owners will need to consider having mold testing done, and if necessary, pay for mold removal in residential buildings.