In our February 2008 column titled, “Judicial ‘Gatekeeping’: ‘Frye,’ Foundational Reliability,”1 we elaborated on the status of standards of reliability used by New York courts to screen expert testimony. The Court of Appeals’ October 2006 decision in Parker v. Mobil Oil Corp. 2 confirmed that when “novel scientific evidence” is offered, there must be a determination of its reliability under the so-called Frye “general acceptance” test which asks “whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally.” Apart from the Frye screening standard for novel scientific evidence, however, there is also a separate “foundational reliability” question applicable in non-novel science cases.
Thus, said the Court, the Frye inquiry is “separate and distinct from the admissibility question applied to all evidence—whether there is a proper foundation—to determine whether the accepted methods were appropriately employed in a particular case.” Parker clarified that the focus moves “from the general reliability concerns of Frye to the specific reliability of the procedures followed to generate the evidence proffered and whether they establish a foundation for the reception of evidence at trial.” Indeed, in the Parker case itself, which claimed that a gas station attendant’s leukemia was caused by exposure to benzene in gasoline, the Court said that no particular novel methodology was even at issue for which “general acceptance” needed to be determined. Rather, the issue was foundational reliability, “an inquiry…more akin to whether there is an appropriate foundation for the experts’ opinions.” The question in Parker was not a Frye issue but whether the methodologies “lead to a reliable result.”
“Reliability” of expert evidence is thus an admissibility or gatekeeping standard irrespective of whether novel scientific evidence is involved. Our February 2008 article delved into all that and surveyed appellate case law that either conformed with Parker or that presented tensions with Parker’s rationales. Since then, a number of New York’s appellate courts have reviewed trial court rulings involving trustworthiness of experts. We review some of these determinations here as an update to our gatekeeping report last year. The reader will see that, although Parker’s instructions on gatekeeping of experts are clear, sometimes justices can disagree on how they should be applied. There is quite some room for advocacy.
Mold Claims
In Fraser v. 301-52 Townhouse Corp. ,3 plaintiffs were former tenants of a cooperative apartment unit who claimed respiratory problems, rashes and fatigue caused by underlying building dampness and resultant mold infestations. The trial court conducted a Frye hearing to determine whether plaintiffs’ causation theory was generally accepted as reliable within the scientific community. After the Frye hearing, defendants’ motion for summary judgment was granted. On appeal, the Appellate Division, First Department, affirmed with the panel divided 3-2. The majority observed that, while there is general agreement that indoor dampness and mold are “associated” with upper respiratory complaints, the defense experts, confirmed by the literature they submitted, showed that the observed “association” is not “strong enough to constitute evidence of a causal relationship.”
In other words, “association ‘is not equivalent to causation’.”4 Even plaintiffs’ expert testified that “association” is not the same concept as “causation.” Since plaintiff failed to demonstrate general acceptance of the notion that the particular ailments are caused by molds, they failed to meet their burden of establishing general acceptance of the scientific theory on which the specific claims were based. Then the court reiterated the cardinal gatekeeping points emphasized in our column last year and highlighted at the outset of this article.
The court applied the two prongs of expert reliability analysis: Frye and foundational reliability. “[W]hether plaintiffs’ theory of causation is scrutinized under the Frye inquiry applicable to novel scientific evidence or under the general foundational inquiry applicable to all evidence, the conclusion is the same: the proffered expert evidence must be precluded on the ground that the underlying causal theory lacks support in the scientific literature placed before us in the present record.”5 The court stressed that it was not setting forth any general rule that dampness and mold can never be considered the cause of a disease, only that such causation has not been demonstrated by the evidence presented.
Much of the rest of the court’s opinion responds to vigorous and detailed assertions by the two dissenting justices as to why plaintiffs’ personal injury claims should be reinstated. Thus, the court clarified that plaintiffs’ deficiency in proof was not a failure to show that dampness and mold “always” cause illness, as charged by the dissent. Rather, plaintiffs’ expert evidence fell short because none of the medical literature in the record supports the stated position of plaintiffs’ experts that the observed association between damp or moldy indoor environments and upper respiratory systems “is strong enough to be considered, under generally accepted principles of scientific analysis, evidence that the former causes the latter.”
Further, despite plaintiffs’ conflation of distinct concepts of “association” and “causation,” even if one assumes that “general causation” were established, i.e., that dampness and mold are capable of causing plaintiffs’ health problems, the experts nevertheless failed to specify “the threshold level of exposure to dampness or mold needed to produce these effects.” Without evidence of exposure to a level of dampness or mold sufficient to cause their alleged injuries, i.e., “specific causation,” plaintiffs cannot prevail.6 Indeed, plaintiffs’ literature showed no standardized or recognized method of measuring “dampness,” thus making it impossible for plaintiffs’ experts to compare the level of dampness in plaintiffs’ apartment to that in the studies.
Although plaintiffs did offer some measure of the mold level in the apartment, their experts did not testify to any threshold level at which mold is capable of causing the injuries of which plaintiffs complain. Although, under Parker , “it is not always necessary…to quantify exposure levels precisely or use the dose-response relationship,” here, plaintiffs relied on the so-called method of “differential diagnosis” which was not an adequate substitute for quantitative proof.
Summary judgment was also justified for failure to satisfy the “foundational reliability” standard. Plaintiffs failed to offer a reliable measurement of the mold level in the subject apartment. Thus, even if plaintiffs’ theory of causation had satisfied the Frye test, the measurement offered did not meet the standard of reliability set forth in the record and, thus, “fails to satisfy the post- Frye foundational inquiry into ‘whether the accepted methods were appropriately employed in a particular case’.”7
Chemical Exposures
A catalogue of how not to prove illness causation by a toxin is reflected in Spierer v. Bloomingdale’s ,8 a case in which plaintiff claimed multiple chemical sensitivity (MCS) injuries caused by exposure to bedding (mattresses and box springs). First, said the Appellate Division, First Department, state and federal courts have determined that the cause of MCS cannot be reliably established by scientific proof. Second, this was largely borne out by environmental and medical tests undertaken at plaintiffs’ request which were, in any event, faulted for inconsistencies and failure to address other potential causes of plaintiffs’ symptoms. Plaintiffs’ medical reports were unsworn. Yet another expert’s report, though certified, only reported on air samples taken a year after plaintiffs’ exposure and concluded only that they “could have been exposed” to hydrogen chloride. On this showing, the First Department had no difficulty in dismissing the claims.
In Coratti v. The Wella Corp .,9 a hairdresser sued for personal injuries allegedly caused by his occupational exposure to defendants’ hair coloring products. The trial court granted defendants’ motions for summary judgment. On appeal, the Appellate Division, First Department, affirmed holding that plaintiff failed to raise an issue of fact in response to defendants’ prima facie showing that the scientific community has not generally accepted the theory that plaintiff’s ailments can be caused by daily occupational exposure to defendants’ hair dye chemicals. Plaintiff’s experts did not attempt to show how much exposure to which chemical (phenylendiamine, resorcinol or some other substance) will render a person subject to toxic poisoning. Nor did they show the extent of plaintiff’s exposure to each chemical or the quantity of each present in defendants’ products. No objective tests were even performed on plaintiff to diagnose the presence of toxic agents in his body.
In Lopez v. Gem Gravure Co. ,10 plaintiff was employed by a manufacturer of flexible plastic hoses. On production lines the hoses were labeled by printing that used ink which plaintiff loaded without gloves. The inks and cleaning solvents were manufactured by defendants. Plaintiff suffered renal failure he attributed to various chemicals including ketones. The chemical defendants moved for summary judgment which the trial court denied.
On appeal, the Appellate Division, Second Department, affirmed the ruling by a panel vote of 3-1. Citing Parker , the majority simply stated that plaintiff adduced sufficient evidence to raise a triable issue and, in light of the conflicting expert opinions, summary judgment was properly denied. A more extensive recitation of the facts and proofs is presented in the vigorously asserted dissenting opinion which disagrees profoundly with the majority on the application of Parker’s gatekeeping standards to the plaintiff’s experts.
In Hellert v. Town of Hamburg ,11 property owner plaintiffs complained that toxic and hazardous substances migrated from the Town of Hamburg’s property (formerly a landfill) and caused health risks and, in the case of one child, personal injuries. The trial court granted partial summary judgment to defendant. The Appellate Division, Fourth Department, however, held that the motion should have been granted in its entirety. Plaintiffs’ hydrogeologist was not established as a qualified expert on health risks. But even assuming he were qualified, said the court, his affidavit was insufficient. Even though he specified contaminants above administrative guidelines or groundwater metals exceeding “drinking water standards,” he did not relate the significance or relationship of those standards to potential health risks. Regulatory agency standards adopted as protective measures are “inadequate to demonstrate legal causation.”12
The affidavit of plaintiff’s medical expert opining that the child’s migraine headaches were caused by exposure to chemicals and metals found at the child’s home and property failed the foundational reliability requirement. An opinion on causation should set forth the person’s exposure to a toxin, that the toxin is capable of causing the particular illness (general causation), and that the person was exposed to sufficient levels of the toxin to cause the illness (specific causation). Here the physician’s affidavit provided none of that. Nor did it refer to any study establishing the child’s exposure to sufficient levels of the contaminants. A conclusory assertion that some unquantified exposure to certain toxins caused migraine headaches is insufficient.
Varied Rulings
In B.T.N. v. Auburn Enlarged City School District ,13 a toxic tort action alleged that airborne substances including molds in a school building caused children’s exposure and adverse symptoms. The Appellate Division, Fourth Department, held that plaintiffs’ expert presented sufficient epidemiological evidence to support a finding of general causation (i.e., that molds can cause the symptoms). Further, the court said that there was no requirement for the expert to precisely quantify exposure levels or establish dose-response relationship. The expert used, said the court, a generally accepted methodology by employing differential diagnosis.
In Nawrocki v. The Coastal Corp. ,14 plaintiff, a school groundskeeper, alleged he contracted aplastic anemia by exposure to benzene in gasoline from filling gas cans at a gas station for 25 years. Tracking the Parker decision, the Appellate Division, Fourth Department, reversed a trial court’s denial of defendant’s motion for summary judgment holding that the affidavit of plaintiff’s expert failed to set forth the manner in which he estimated plaintiff’s exposure to a specific level of benzene. Further, the expert failed to refer to any study establishing that plaintiff was exposed to sufficient benzene levels to cause aplastic anemia.
In DiDomenico v. Long Beach Plaza Corp. ,15 plaintiff claimed business losses as well as personal injuries attributable to defendants’ creation of a public nuisance via the discharge of perchloroethylene (perc). Summary judgment for defendants was deemed appropriate because plaintiff’s expert “merely offered unsubstantiated and speculative opinions” regarding causation.
In LaMasa v. Bachman ,16 defendant’s truck braked at a traffic light but skidded on the wet roadway and struck plaintiff’s stopped car in the rear. Defendant questioned the foundational support for plaintiff’s expert’s opinion which relied on unspecified “new technology or methodologies.” The Appellate Division rejected this challenge stating that “the same experts also opined based on well-established and recognized diagnostic tools” and found that they provided reliable causation opinions.
In Page v. Marusich ,17 the dental malpractice claim concerned the diagnosis, development and treatment of an oral cancer. Plaintiff unsuccessfully moved for a Frye hearing to exclude certain expert testimony regarding the development of the cancer. The jury returned a defense verdict. The narrow issue considered on appeal was whether the Frye hearing should have been granted. The Appellate Division, Third Department, held that the hearing was not needed since the battle of the experts was not a disagreement over the reliability of novel scientific evidence but, rather, the credibility of the opinions of defendant’s medical experts.
Michael Hoenig is a member of Herzfeld & Rubin.
Endnotes:
1. New York Law Journal, Feb. 11, 2008, p. 3.
2. 7 NY3d 434 (2006).
3. 57 AD3d 416, 870 NYS2d 266 (1st Dept. 2008).
4. 57 AD3d at 417 (quoting from Green, Freedman & Gordis, Reference Guide on Epidemiology, in Federal Judicial Center, Reference Manual on Scientific Evidence, at 336 (2d ed 2000)).
5. 57 AD3d at 418.
6. 57 AD3d at 419 (citing Parker , 7 NY 3d at 448).
7. 57 AD 3d at 420. The court observed that a textbook plaintiff put in evidence at the hearing states that an estimate of average inhalation exposure should be based on sampling at least three times a day for at least three consecutive, representative days, with duplicate samples for all analysis. Plaintiffs’ environmental expert, however, collected only two indoor air samples within a short time span on the same day. According to plaintiffs’ own authority, this was insufficient.
8. 43 AD3d 664, 841 NYS2d 299 (1st Dept. 2007).
9. 56 AD3d 343, 867 NYS2d 421 (1st Dept. 2008).
10. 50 AD3d 1102, 858 NYS2d 226 (2d Dept. 2008).
11. 50 AD3d 1481, 857 NYS2d 389 (4th Dept. 2008).
12. 50 AD3d at 1483 (citing Parker , 7 NY 3d at 450).
13. 45 AD3d 1339, 845 NYS2d 614 (4th Dept. 2007).
14. 45 AD3d 1341, 845 NYS2d 896 (4th Dept. 2007).
15. 875 NYS2d 133 (App Div. 2d Dept. 2009).
16. 56 AD3d 340, 869 NYS 2d 17 (1st Dept. 2008).
17. 51 AD3d 1201, 856 NYS 2d 734 (3d Dept. 2008).
