Re: NY Times Retraction Re;Frye/Mold/Attorney Misstatement

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I am the attorney who litigated the Frye hearing on behalf
of the defense in Fraser v. 301-52 Townhouse Corp. In the
course of my research and preparation for the hearing, I did
not find a published decision from a New York State court
that had conducted a Frye hearing with regard to alleged
mold injury. Other than the Fraser case, which was
published in the New York Law Journal on October 23rd, I am
still unaware of any.

Ms. Kramer is technically correct when she states that the
Fraser case "is not the first Frye hearing regarding mold
within the [S]tate of New York[.]" A Frye hearing was
conducted in Davis v. Henry Phipps Plaza South, but the
Court's ruling was not reported.

However, I have obtained a copy of the relevant portion of
the transcript of the trial proceedings in the Davis case,
including the pages to which Ms. Kramer refers in her post.
The Court granted "a Frye hearing limited to the issues of
whether exposure to mold, including toxigenic mold, could
cause brain damage and/or cognitive impairment," but the
Court concluded that "exposure to toxic mold in the indoor
environment has not gained general acceptance in the
scientific community as a cause of brain injury, including
cognitive impairment." I thank Ms. Kramer for publicizing
this ruling.

Finally, Ms. Kramer makes a reference to "all other NY Frye
rulings over the mold issue." If Ms. Kramer knows of other
rulings issued by New York courts after Frye hearings
concerning alleged mold injury, I kindly ask that she share
the citations with all of us.

On 10/22/06, Sharon wrote:
> Hi All,
> I tend to stay off of this board as I understand it is for
> attorneys, but I felt it was important for you all to see
> this one. The real gist of the situation is how marketing
> of false concepts is used in mold litigation.
>
> Not that anyone intentionally misspoke in the following
> article. But somehow, whenever one wants to present
within
> the media the stance that serious mold induced illnesses
> are not occurring, it seems to get broad national media
> attention.
>
> Sharon Kramer
>
>
> New York Times,
>
> Oct 22, 2206
>
> Correction to a Real Estate article
>
> Re: Mold and NY Frye, Oct 15, 2006
>
> "The Your Home column last Sunday, about the dismissal of
a
> claim that sought to hold a co-op corporation in Manhattan
> liable for injuries to residents caused by mold, referred
> incorrectly to a "Frye hearing," which was held to examine
> scientific links between mold and health problems.
Contrary
> to what a lawyer in the case stated, this was not the
first
> Frye hearing in New York; at least one other such hearing
> was held in Manhattan in 2001. (Go to Article)"
>
> They got many letters of complaint to the Editor. Below is
> mine:
>
>
> Subject: Another NY Frye hearing over mold.... Just last
> month You got punk'd.
> Date: 10/16/2006 9:31:56 A.M. Pacific Standard Time
> From: SNK 1955
>
>
> Mr. Romano,
>
> Sorry to bother you again, but it is looking more and more
> like you got punk'd by the defense into writing a story
> based on a false premise (that this Frye ruling was
> significant news because it was the first over the mold
> issue in the state of NY).
>
> In reality, what is significant about this Frye ruling is
> that is it novel in it's conclusions from all other NY
Frye
> rulings over the mold issue.
>
> It is quite understandable why the defense would want to
> use the real estate section of the NY Times to market the
> concept that, “This throws a lot of cold water on the
> notion that mold is the cause of personal injury,” said
Eva
> Talel, a Manhattan real estate lawyer. “And while this
> isn’t going to be the last word on the subject, the
> decision is so comprehensive and well thought out that
> other judges are not going to be anxious to rule
> differently.”
>
> As I understand it, ALL other NY Frye rulings have allowed
> in testimony of allergy and irritant effects from mold
> exposure within an indoor environment. This judge is the
> only one who has not. There is your true story!
>
> Beside the one I already sent to you from 2001, here is
> another one from just last month.
>
> Trust me, as a marketing person, I track this kind of
> stufff over the mold issue. You would not be the first
> writer to get punk'd into writing a false article over the
> mold issue.
>
> Although, I sincerely hope that now that you know this,
you
> will make every effort to set the record straight. The
> defense attorney you quoted misspoke regarding Frye and
the
> state of New York.
>
> "Andrew Brucker, the lawyer who represented the co-op in
> the case, said this was the first time a Frye hearing on
> mold had been held in New York"
>
> This is not the first Frye hearing regarding mold within
> the state of New York by a long shot.
> Frye Hr’g Proceeding at 14-15, Davis v. Henry Phipps Plaza
> South, Assocs. (N.Y. Sup. Ct. (Oct. 11, 2001)
>
> What can I do to help you?
>
> WR,
> Sharon
>
> Your Home
> Court Rebuffs a Suit Linking Mold to Illness
>
> By JAY ROMANO
> Published: October 15, 2006
> Correction Appended
>
>
> Illustration by Tom Bloom
>
> A DECISION issued last month by a State Supreme Court
> justice in Manhattan should allow building owners,
> including co-op and condominium boards, to rest a little
> easier about potential claims that indoor mold has injured
> an occupant of their buildings.
>
> After a review of more than 1,000 pages of testimony and
> more than 70 scientific articles and books, Justice
Shirley
> Werner Kornreich concluded that there was insufficient
> evidence to support the contention that mold or a damp
> indoor environment causes illness.
>
> “This throws a lot of cold water on the notion that mold
is
> the cause of personal injury,” said Eva Talel, a Manhattan
> real estate lawyer. “And while this isn’t going to be the
> last word on the subject, the decision is so comprehensive
> and well thought out that other judges are not going to be
> anxious to rule differently.”
>
> The case was brought by Colin and Pamela Fraser on behalf
> of themselves and their daughter, Alexandra, against the
> 301-52 Townhouse Corporation, which owned their co-op
> building. The Frasers contended that mold near windows and
> doors in their apartment caused respiratory problems, a
> rash and fatigue. The Frasers said that after moving into
> an apartment at 301 East 52nd Street in August 1996, Mr.
> Fraser developed a leg rash, lethargy and congestion and
> hearing, nasal and throat problems and Mrs. Fraser and
> their infant daughter developed respiratory problems.
>
> The couple said their conditions improved when the family
> moved out of the apartment in 2002.
>
> Before allowing the case to proceed to trial, Justice
> Kornreich ordered what is known as a Frye hearing to
> determine whether the Frasers’ contention that mold caused
> their health problems is “generally accepted” by
> scientists.
>
> A Frye hearing, which is named after a 1923 federal case,
> is used to determine whether scientific evidence supports
a
> litigant’s theory of liability. After 10 days and the
> testimony of four experts, Justice Kornreich concluded
that
> while one expert testified mold or damp indoor space
caused
> health problems, “the scientific literature did not
support
> his assertions.” As a result, Justice Kornreich dismissed
> the claim for personal injuries.
>
> Three calls to Elizabeth Eilender, the Frasers’ lawyer,
> seeking comment and information about a possible appeal,
> were not returned.
>
> Andrew Brucker, the lawyer who represented the co-op in
the
> case, said that the “whole mold issue has been blown out
of
> proportion.
>
> “We think this is going to have a major impact on lawyers
> who are thinking about bringing cases alleging injuries
> caused by mold,” he said. “And we think that insurance
> companies are now going to be more inclined to fight these
> cases instead of settle them.”
>
> Dennis Greenstein, a Manhattan co-op lawyer, said that
> while the decision was good news for property owners
> concerned that they could be held liable for injuries said
> to be caused by mold, they and their property managers
> should still take mold problems seriously.
>
> “People still have to do the best they can when dealing
> with mold and the leaks that may cause it,” Mr. Greenstein
> said. He pointed out that failure to address mold or leak
> problems could still leave owners exposed to lawsuits for
> property damage.
>
> Dr. Joseph Q. Jarvis, an expert in public health who is
> affiliated with the University of Nevada School of
Medicine
> in Reno, said he was surprised that a comprehensive review
> of the medical literature led the judge to conclude there
> was no consensus that mold can cause illness. While it may
> not be possible to specify the level of exposure needed to
> cause a problem, he said, it is well documented that
> exposure to indoor mold can cause respiratory allergies in
> some people.
>
>
> Correction: Oct. 22, 2006
>
> The Your Home column last Sunday, about the dismissal of a
> claim that sought to hold a co-op corporation in Manhattan
> liable for injuries to residents caused by mold, referred
> incorrectly to a "Frye hearing," which was held to examine
> scientific links between mold and health problems.
Contrary
> to what a lawyer in the case stated, this was not the
first
> Frye hearing in New York; at least one other such hearing
> was held in Manhattan in 2001.