New York, United States, April 4, 2009 from IEHN.

Q. Counselor, the case of Fraser seems to set a new standard of proof required for suit. What is happening in the courts?

"Upon closer review, the standard is the same but the evidence is now under more scrutiny and every foreseeable aspect, point of law relating to the case is challenged-including unfounded claims of estopple as in one of the recent case. In spite of clear evidence that fungi and especially clinically relevant mold that are known to be toxigenic on at least three levels, are known to be allergenic, are known producers of carcinogens, are known to cause infections as common as Athlete's Foot (onychomycosis), cause of respiratory disease and other conditions in those fully immunocompetent/non HIV and countless other conditions in those that have a compromised immune system or HIV, legal cases are being dismissed every day for failing to meet evidentiary standards. I am asked to consider or review over 100 legal cases a year at various stages of litigation and much too often, too late, at the eleventh hour-typically on appeal, when discovery or the record is closed or just fatal evidence has unknowingly been allowed to be introduced into the record by lay experts or left without a competent rebuttal. It is really disheartening for me understanding this as a lawyer, as an advocate for related education and a indoor health investigator knowing that inexperienced litigators are just not putting together a proper case for both defendants or plaintiffs. A plaintiff contacted me today for a consultation - A clinical doctor that already had retained experts in the medical field and had already amassed over $200,000.00 in legal and expert fees only to find the wrong facts were being argued and a case that is just not sustainable. It still surprises me that I continue to get such calls. Attorneys must know that toxic mold litigation is highly complex due to too many factors that are not considered. Clients would be wise to direct their attorney to consult such experts early on for guidance for mold related cases. "

"In Fraser, the New York Court of Appeals (a higher court than county Supreme Courts) affirmed a New York County Supreme Court ruling in respect to the admissibility of scientific and medical evidence, denying admission in a ruling that raised the burden of proof for plaintiffs."

"The case involved a family in a Manhattan apartment.  The family, the plaintiffs were seeking millions of dollars in damages, claimed that water leaks resulted in the growth of mold in their apartment causing them to suffer headaches, conjunctivitis, rhino- sinusitis, respiratory and neurological conditions. The defense countered that plaintiff's theory of causation was not reliable citing conflicting and inconclusive studies and publications by the scientific and medical communities, motioned the Court to prevent the medical experts from testifying at trial."

"After a Frye hearing to determine whether the subject of the proposed expert testimony is generally accepted in the relevant scientific communities the medical doctors testified and the court admitted into evidence peer reviewed studies, papers and other publications. After a full review of the testimony and the scientific and medical literature, the court found that the plaintiffs “failed to demonstrate that the community of allergists, immunologists, occupational and environmental health physicians and scientists accept the theory that mold and/or damp indoor environments cause illness.” The court dismissed all of the mold-related personal injury claims."

Q. How could the case have turned out differently?

"For a plaintiff or injured party for mold related illness or injury cases all must be tried as infection cases and because the bar has been raised higher that standard of proof now is closer to "beyond a reasonable doubt" not just "the preponderance of the evidence" which is the common standard for civil cases which is the standard that must be applied. Until that standard of proof is applied and obtained litigants will nearly always fail to meet the evidentry burden. Fortunately if, when and where that evidence does exist or not exist will determine whether the plaintiff or defendant prevails."

"I reviewed the evidence in Fraser that was ruled inadmissible and in my opinion even if the evidence was allowed at trial I do not see the plaintiff having prevailed when scientifically challenged and rebutted. It just did not meet the burden of proof due to the fact that the required scientific testing was not performed, has now been spoiled and no longer available. I am generally in agreement and very familiar with the 'scientific and medical reports' proffered from clearly some of the top scientists in their respected fields. Yet nowhere in the record did I find what would have been sustainable evidence. The plaintiff would not have prevailed so in effect the defendant would still have prevailed but for the wrong reason. But on the other hand if in fact the plaintiff's were so injured proper testing would have disclosed such and the case would have proceeded to a just finding to make the the plaintiff 'whole'."

Q. What do attorneys need to know about mold related cases?

"Nearly every mold case is different and must be handled so. The most successful legal position must be determined and that can not be done without a full understating of fungi, related mycotoxicosis, infection, illness, disease and a multitude of additional factors - a fully qualified and experienced medical mycologist must be consulted in every case. It is almost impossible, in part due to "Public Policy Exception" related issues even with legal counsel with the best intentions and the most highly motivated experienced attorney to build a mold health injury case and expect to prevail in such a case without consulting and obtaining the guidance of a clinical research medical mycologist that has reviewed thousands of mold health cases, consultant to hundreds pending litigation and reviewed countless medical studies, especially one that is also legally trained. Counsel should understand the scope of the related science required to identify and obtain the evidentry proofs that are available to prevail. There is so much more that must be done especially in the area of sampling. I have found that nearly all mold sampling, mold testing and related mold lab reports for the purpose of personal health injury have little to no probative value and are routinely dismissed upon my review and analysis. I do not care who did the inspection it always amounts to nothing but "bean counting" and the counts are not understood. For clinical purposes it far more complex than anyone would imagine this is why there are no true state or national standards - it is just not understood but by a few scientists. Understanding these cases "fast tracks" them and prevents a waste of resources, time and effort. "

Q. You mentioned the "Public Policy Exception" in the Law, what role does that play in the legal process?

"Every legal jurisdiction where judges are appointed (not elected) there is the inevitable political lobbyist influence and bias involved in the adjudication. Different corporate interests in America are served this way. Ask your attorney about the possible affect that policy may have on the outcome of your case and the best way to manage your case. When it comes to a rental or co-op managed properties all clients are encouraged to work with such management to simply resolve any believed issues. Such polices have their practical purpose and in these cases it serves to protect property owner and managers from frivolous and baseless owner-rental-tenant lawsuits. Often it is best just to move out if agreement can not be obtained. In such cases your attorney should be asked to try to get your deposit back. A full understanding of your local courts' rules of evidence as commonly applied in all major metropolitan areas throughout America and the affect such polices may have upon your final outcome must be fully understood by both you and your competent, knowledgeable and experienced legal counsel."

Questions - consultations may be directed to:

Abstract/squib from New York Court of Appeals Clerk's Office

Vol. 29 - No. 7

2/20/09

COURT OF APPEALS NEW FILINGS

Preliminary Appeal Statements processed by the Court of Appeals Clerk's Office

February 13 through February 19, 2009

Each week, the Clerk's Office prepares a list of recently-filed appeals, indicating short title, jurisdictional predicate, subject matter and key issues. Some of these appeals may not reach decision on the merits because of dismissal, on motion or sua sponte, or because the parties stipulate to withdrawal. Some appeals may be selected for review pursuant to the alternative procedure of Rule 500.11.

The Court welcomes motions for amicus curiae participation from those qualified and interested in the subject matter of these newly filed appeals. Please refer to Rule 500.23 and direct any questions to the Clerk's Office.

FRASER v 301-52 TOWNHOUSE CORP.: ST Dept. App. Div. order of 12/30/08; affirmance with dissents;sua sponte examination whether the order appealed from finally determines the action within the meaning of the Constitution;EVIDENCE - SCIENTIFIC EVIDENCE - FRYE HEARING - PRECLUSION OF EXPERT EVIDENCE ON WHETHER ALLEGED DAMPNESS AND MOLD CONDITION IN DEFENDANT'S BUILDING CAUSED PLAINTIFFS' HEALTH PROBLEMS;Supreme Court, New York County granted plaintiffs' motion for reargument and renewal of an October 5, 2006 Supreme Court order,which, after a Frye hearing, granted defendants' motion to preclude plaintiffs from offering certain expert evidence at trial and granted defendants summary judgment dismissing plaintiffs' causes of action based on personal injury, and, upon reargument and renewal, adhered to the original determination;App. Div. affirmed.

Vol. 29 - No. 7 page 2

*Certified for Clinical Interests in the pratice for the field of Industrial Hygiene. No association with the American Board of Industrial Hygienists and their CIH schema. We are certified specialists in related clinical medicine.

**legal counsellor (5) , a non-attorney lawyer, not at bar, accepting only select pro bono cases court representation only on application to and admission by court. See also and understand: Attorney. A lawyer is anyone formally trained in law by degree or certification, an attorney is a lawyer that has taken a bar exam and an oath of allegiance to the court and has been given the privilege for a fee to represent clients in court and a legal counsellor is a lawyer that only provides consultation and does not have the privilege to represent a client in court because they have not taken oath of alligence to the court of any given state or jurisdiction. This interpetion varies from state to state. In some states lawyers are not recognized in the rules of court and therefore do not exist. The legal system is a monopoly and the courts protect that monopoly by refusing to define the term lawyer due to the fact such a defintion will have to included realestate brokers, paralegals, legal assistants, tax preparers and others that require legal knowledge. The Attorneys' first duty is to the court of which they are a memebr then to the client. See Corpus Juris Secundum and American Jurisprudence. Esquire does not mean attorney.

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