Attorneys Robert M. Leff and Denis Farrell Obtain Dismissal of Toxic Mold Personal Injury Case.

October 31, 2007

Traub Lieberman Straus and Shrewsberry LLP is pleased to announce that in a decision dated October 24, 2007, the New York State Supreme Court, Westchester County granted defendants’ motion to preclude the plaintiffs’ expert testimony as to medical causation and for summary judgment. The Court dismissed the case on the basis that plaintiffs could not establish medical causation through generally accepted methodology.

In LeBoeuf v. Safeguard Insurance, et al., Index No.: 9202/04, the plaintiffs, a family of four, were allegedly exposed to “toxic mold” in their home after a broken water pipe caused a flood.  Plaintiffs brought suit against their homeowners insurance carrier and Crystal Restoration Enterprises, Inc., the remediation company hired to clean up and repair damage to the home after the flood. Plaintiffs alleged that the defendants failed to adequately respond to the flood and that Crystal was negligent in performing restoration services, thus causing the premises to be infested with mold and other organisms. Plaintiffs alleged that their exposure to mold in the premises led to various health problems including: red and itchy eyes, sore throats, headaches, breathing difficulties, flu-like symptoms, the exacerbation of pre-existing but dormant asthma, fevers, etc. Robert Leff and Denis Farrell from Traub Lieberman represented Crystal.   

Environmental testing conducted before, during and after the restoration work revealed low levels of mold in the premises. Several months after the restoration work was completed, the plaintiffs retained their own Industrial Hygienist who performed additional testing and again found what he considered to be “low levels” of various species of mold. At the plaintiffs’ request, the premises was  essentially gutted over the next two years as additional testing repeatedly revealed low levels of mold in the air. Plaintiffs vacated the premises for more than two years while the house was rebuilt and brought suit for personal injuries as a result of exposure to “toxic mold” during they time they remained in the home after the flood.

At the close of discovery, Traub Lieberman filed a motion in limine to preclude plaintiffs’ expert evidence as to medical causation as not generally accepted in the scientific community and for summary judgment.  Traub Lieberman established through plaintiffs’ medical records and expert evidence that there is no scientifically reliable basis for concluding that plaintiffs’ symptoms were caused by an allergic response to mold. Only one of the four plaintiffs tested positive for a mild allergy to a common outdoor mold. The other three plaintiffs did not have an allergic sensitization to mold. In addition, based upon a review of the medical and epidemiological literature, the state of the science is such that there are no known symptoms or diseases known to be caused by an indoor exposure to mold such as this.

Traub Lieberman further established that there was no scientifically reliable basis for establishing that plaintiffs’ symptoms were caused by a “toxic” exposure to mold. The environmental testing in the premises did not include testing for the presence of mycotoxins and as such, there was no evidence that the plaintiffs were ever exposed to same. Relying on Parker v. Mobil Oil, 716 A.D3d 648 (2005) and Zaslowsky v. J.M. Dennis, et al., 26 A.D.3d 372 (2006), Traub Lieberman argued that plaintiffs could not meet their burden of establishing a causal connection between their illnesses and exposure to “toxic mold.”
The Court agreed that plaintiffs’ allegations of an allergic response to mold in the premises lacked any medical foundation or credibility given the fact that three of the four were not allergic to mold and because the health complaints persisted more than three years after the plaintiffs were removed from the exposure.            

With regard to the alleged “toxic” response to mold, the Court agreed with Traub Lieberman’s arguments and applied the benchmark standard for establishing medical causation in toxic exposure cases set forth in Parker. The Court found that the plaintiffs were unable to establish the level of exposure to the toxin, that the toxin is capable of causing the illness and the level of exposure which will engender the illness, and the probability that the toxin caused the plaintiff’s injuries. The Court found that the statements of the plaintiffs’ experts were unsupported by the scientific literature and  did not meet the standard explicated in Frye. Absent expert testimony as to causation, plaintiffs were unable to establish a prima facie case against Crystal and summary judgment was granted.

Traub Lieberman believes this ruling is significant as it is the first case that we know of that applies the Parker three-prong causation test to a “toxic mold” case. Holding plaintiffs to the Parker standard in toxic mold claims will require plaintiffs to conduct more detailed environmental testing in the first instance, i.e., testing for the presence of and levels of mycotoxins in the air. Further, plaintiffs will have to establish that the specific mycotoxins detected are capable of causing the alleged illness and the level of exposure required to engender that illness, as well as the probability that exposure to those mycotoxins caused the plaintiff’s specific illness. This involves ruling out other possible causes of the illness, including exposure to other toxins, exposure to mycotoxins contained elsewhere in the environment, etc.

Given the current state of the science regarding the health affects of mold exposure, applying this standard to toxic mold claims may limit litigation to all but the most severe exposure cases and make it virtually unwinnable in circumstances arising out of indoor, non-occupational inhalations such as in the LeBoeuf case.            

Traub Lieberman congratulates Mr. Leff and Mr. Farrell for their success in obtaining dismissal of this groundbreaking case.

Entire Decision & Order