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

More | Report Post

Hi All,

I really hate to have to post this message. But after a week of
my source, who indicated there were numerous Frye hearings over
mold in New York, not being able to site any others for me, I
have to think that Mr. Juneau and Mr. Bruker were correct when
they said my statement of "In reality, what is significant about
this Frye ruling is that it is novel in it's conclusions form all
other NY Frye rulings over mold."

My sincerest of apologies are extended to Mr. Juneau and Mr.
Bruker over this point. I will also be sending an email to the
NY Times of the correction to my statement. (I don't think it
impacts the correction they already had to make) I think this
correction is still valid, right?

What I do not retract is the info regarding the papers this judge
relied upon being founded on a premise that is not scientific.

What I do not retract is that Big Tobacco 'scientists' who are
now expert witnesses for defense in mold litigation, are also
writing and promoting a defense argument within the courtroom by
abusing their influence within our medical associations.

One of the papers the judge relied upon, has already be deemed to
be based upon a false postulate to conclude the existance of
absence of human illness regaring indoor microbial exposure.
This was done thru a Frye hearing in California in April, 2006.
The case was:

Case # 02AS04291, James Harold and D. Lee Harold, Plaintiffs vs.
California Casualty Insurance Company and Westmont Construction,
Inc., Defendants
Honorable Michael P. Kenny, Judge of the Superior Court of
California, County of Sacramento

This particular model and comparsion method deemed not
scientific, is a cornerstone model used within the ACOEM mold
statement and the AAAAI mold statement - these are three of the
docs the judge relied upon in the NY Frye Ruling.

The three papers I am discussing are:

Risk from inhaled mycotoxins in indoor office and residential
environments. Int J Toxicol 2004; 23: 3-10.Robbins CA, Swenson
LJ, Hardin BD

Robbins, Swenson Hardin are all principals in the litigation
defense support corporation of Veritox, Inc. Their President can
be found within the UCSF Tobacco Legagy Library as expert defense
witness for Phillip Morris.

The second paper that the judge relied upon is:

The American College of Occupational and Environmental Medicine
Mold Statement Title: Adverse Human Health Effects Associated
with Molds in the Indoor Environment
Again, Kelman BJ Hardin BD of Veritox, Saxon AJ.(University of
California - UC)Edited & published in the Journal of ACOEM, the
JOEM 2003

The third (which names the other two for its source reference) is:
American Academy of Allergy, Asthma and Immunology (AAAAI) Mold
Position Title: The medical effects of mold exposure
Bush RK, Portnoy J, Terr A.(UC), Saxon AJ (UC) and Wood RA.

Testimony Jay Portnoy, June 30, 2006. Arizona:

"And there was a request to write sections and I wrote my
section. And then my section was - was kind of vetoed and --
changed."

"My segment was about whether exposure to things from molds could
be irritating to the human respiratory system and couse health
effects. And as an irritant, it was to be at a dose that was
substantially below a toxic dose and possibly below any dose that-
that one might acdept as being harmful. But - but still, if it
was strong, strong enough irritant, it still needed to be
considered as a plausible mechanism....."

"Well, actually, when I wrote to Dr. Saxon, I received it back
and with the comments that -- this this wasn't any good and that
he was going to write it himself."

Dr. Portnoy did not contribute to the paper. Andrew Saxon, who
authors quite frequently with Kelman and Hardin, as he did for
the ACOEM Mold Statement. And is himself a prolific expert for
the defense in mold litigation, rewrote Dr.Portnoy's work to his
liking. Yet, Dr. Portnoy's name was left on the document as an
author. You know how Dr. Portnoy even found out the paper had
been published? I told him.

So, I do sincerely apologize to Mr. Juneau and Mr. Bruker for any
error I made in presenting information to the NY Times. And I
will correct with an email.

My question is, does one have to go back and tell a judge about
the errors within the papers that they presented to her as
science when making her Frye ruling?

Sharon Kramer

On 10/25/06, Sharon Kramer wrote:
> 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.