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

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Dear A. (what does the "A" stand for?),

With all due respect, you are incorrect and should research
before you expound your learned information based on erroneous
information. You write, "I assure you that no court in New York
ever granted and held a Frye Hearing prior to Judge Shirley
Kornreich."

What I now know, is that one should not accept anything based
upon YOUR assurances. Sorry pal, but you are in grave error!

One only needs to search the words "New York Frye Mold" to
verify this is an incorrect statment on your part. Litwack v.
Plaza Realty Investors, Inc Dec. 1, 2004

You should be more dilligent when erroneously posting a pledge
in support for a prior erroneous statement.

Mr. Romano of the NYTimes was mislead to believe he had a
newsworthy "first" of a story, in that this lower court judge's
ruling was of vast significance because it was the first Frye
hearing on mold in the state of New York. That was the reason
for writing the story. The story was written under a false
premise, as I understand it.

Based upon this misinformation, a story was penned and
published. In realty, it is Non-News that is nothing more than
a marketing of the defense argument thru the abuse of the media
in an effort to influence and win more lawsuits...seems to me.

Not to mention, the judge relied on Junk Science written by
those with close ties and prior experience with Big Tobacco.

Ask Dr. Gotts, one of the defense experts, about this aspect.
Or better yet, just search his name in the UCSF Tobacco Legacy
Library, Glossary of Names.

Kornreich's ruling is lower court, no big deal and a real
snooze of a read. Anywhere that said "more research is needed",
she concluded meant "could not be proven".

Contrary what has been falsely portrayed in the media, this
ruling won't impact the mold issue one iota. It is public
puffing by the defense and is of nothing significant.

Below is info of not only an additional Frye in the State of
New York over mold, but a Daubert and a failed Motion for
Summary Judgement to exclude the plaintiff expert just last
month (quite common).

One only has to search the words "New York Frye Mold" to find
info of prior Frye hearings over mold in NY. (Sure wishes I had
me a lauw de gree, cuz then, gaul dang, surely Iz would be
smarts enough to know this)

I have not verified the Daubert info, so I can't firmly make a
statement of fact, because for me to do so may make me appear
to be a total, blowhard, non-dilligent idiot. But this info
comes from Dr. Lipsey who was the plaintiff toxicologist in the
case.

Daubert:

"Even more important than a Frye Hearing regarding mold
litigation in NY, is the fact that Federal Judge Sprizzo
conducted a Daubert Hearing on the toxicology of pathogenic
mold in the Frederick vs Columbia University case involving a
student exposed to toxic mold. I testified in that Daubert
Hearing on May 3, 2005 and the judge stated to the four defense
attorneys, "There is no way Dr. Lipsey is not going to testify
at trial". I then testified at trial May 25 and 26, 2005."

Additional Frye,besides the other one in 2001 that proves
Kornreich's Frye was NOT the first, to the point the NY Times
retracted the statment. (Check out the article as it appear on
the net now. They are so embarrassed, they not only retracted,
they changed the quote)

Anyway, here is yet a third Frye over mold in the state of New
York:

Litwack v. Plaza Realty Investors, Inc
Dec. 1, 2004

Appellate Court:

Trial Court:
Supreme Court, New York County

Trial Judge:
Hon. Marilyn Shafer

Type of Action or Proceeding:
Supreme Court - Personal Injury/Damages - Mold - Tenant versus
Landlord

Issues/Legal Principles:
Notice of water leak conditions which give rise to mold
infiltration,
rather than notice of the mold condition itself, is sufficient
to hold landlord potentially liable for injuries cause by toxic
mold; expert testimony with respect to mold exposure related
injuries subject to Frye hearing.

Source:
NYLJ, page 23, col. 1, Dec. 1, 2004As for the second and third
branch of the landlord's motion the Supreme Court directed a
Frye hearing to determine whether Plaintiff's expert testimony
as to the causal relationship between exposure to mold and the
conditions and symptoms suffered by the tenant would be
admissible at trial, in order to determine whether the expert's
scientific evidence was generally accepted in the scientific
community.

And a Motion for Summary Judgement that was DENIED JUST LAST
MONTH, which serves the same purpose in determining the
admissibility of experts in many cases:

Date: 19 October 2006
Judge Denies Motion to Exclude Plaintiff’s Medical Witness
Related Document: Order - MOL-0611-02 (PDF format)

SYRACUSE, N.Y. — A New York State trial court judge denied a
motion to exclude testimony by Dr. Eckhardt Johanning on Sept.
12, ruling that Dr. Johanning’s opinions are an issue of fact
for the jury to consider. Netti, et al. v. Auburn Enlarged City
School District, No. 98-0178 (N.Y. Sup., Cayuga Cty.)

Gee, wish I was as educated as you, so I too could understand
the logic as to why "non-lawyers should not comment on areas of
the law they know nothing about."

Tell me again, what does the "A" stand for?

Sharon Kramer

On 10/25/06, a smith wrote:
> To Sharon:
>
> As an attorney who deals a lot with mold cases in New York,
> and whose law form was actually involved in the Phipps
> Housing case, I assure you that no court in New York ever
> granted and held a Frye Hearing prior to Judge Shirley
> Kornreich. I know this the New York Law Journal, who has
> follwoed this issue very claosely, also knows this. There's
> a reason why non-lawyers should not comment on areas of the
> law they know nothing about.
>
> Sincerley;
>
> Mold litigator in New York
>
> A Smith
>
> 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.