Brenda Cornell, Respondent,v.360 West 51st Street Realty, LLC, et al., Defendants, 360 West 51st Street Corp., Appellant.BriefN.Y.January 14, 2014To be Argued by: ALAN L. KORZEN (Time Requested: 30 Minutes) New York County Clerk’s Index No. 113104/04 Court of Appeals of the State of New York BRENDA CORNELL, Plaintiff-Respondent, – against – 360 WEST 51ST STREET REALTY, LLC, BRUSCO REALTY CORP., ROBERT BARANOFF, SUPREME SERVICES OF NEW YORK INC. and GEOFFREY SHOTWELL, Defendants, – and – 360 W. 51ST STREET CORP., Defendant-Appellant. ––––––––––––––––––––––––––––––– 360 WEST 51ST ST. REALTY, LLC, BRUSCO REALTY CORP., ROBERT BARANOFF and BRUSCO REALTY MANAGEMENT LLC, Third-Party Plaintiffs, – against – SUPREME SERVICES OF NEW YORK INC. and ANDRE VAQUE, Third-Party Defendants. BRIEF FOR DEFENDANT-APPELLANT Of Counsel: ALAN L. KORZEN MINDY L. JAYNE BONNER KIERNAN TREBACH & CROCIATA LLP Attorneys for Defendant-Appellant Empire State Building 350 Fifth Avenue, 59th Floor New York, New York 10118 Tel.: (212) 268-7535 Fax: (212) 268-4965 Date Completed: January 28, 2013 STATE OF NEW YORK COURT OF APPEALS ------------------------------------------------------------)( 360 W. 51st STREET CORP., and GEOFFREY SHOTWELL, Appellate Division Docket No.: 4810 M-1736 Defendants-Appellants, Supreme Court Index No.: 113104/04 -against- DISCLOSURE STATEMENT BRENDA CORNELL, Plaintiff-Respondent. ------------------------------------------------------------){ PLEASE TAKE NOTICE that Defendant-Appellant 360 W. 5151 Street Corp. by and through its attorneys, BONNER KIERNAN TREBACH & CROCIATA, LLP, hereby states that pursuant to section 500.1 (f) of the Rules of the Court of Appeals that 360 W. 51st Street Corp. has no parents, subsidiaries or affiliates. Dated: New York, New York October 9, 2012 TO: Morrell I. Berkowitz, Esq. GALLET DREYER & BERKEY, LLP Attorneys for Plaintiff-Respondent 845 Third Avenue, 8th Floor New York, New York I 0022 (212)935-3131 . Korzen, Esq. BONNER KIERNAN TREBACH & CROCIATA, LLP Attorneys for Defendants-Appellants 360 W. 51st Street Corp. and Geoffrey Shotwell Empire State Building, 59th Floor New York, New York 10118 (212) 268-7535 i TABLE OF CONTENTS TABLE OF AUTHORITIES…………………………………………………………… iii PRELIMINARY STATEMENT………………………………………………………… 1 ISSUES PRESENTED FOR REVIEW.…………………………………………............. 6 STATEMENT OF JURISDICTION………………………………………………………7 STATEMENT OF FACTS.………………………………………………….…………... 8 Procedural History………………………………………………………………….9 Motion Court………………………………………………………………...9 Appellate Division, First Department……………………………………...11 Frye Standard……………………………………………………………………..14 The Fraser Decisions……………………………………………………………..16 ARGUMENT…………………………………………………………………………… 22 POINT I RESPONDENT FAILED TO ESTABLISH THAT HER ALLEGED INJURIES WERE PROXIMATELY CAUSED BY ANY BREACH OF DUTY BY APPELLANT ………………………………...…………………………... 22 POINT II RESPONDENT FAILED TO PROVE THAT HER EXPERT’S THEORY OF GENERAL CAUSATION MET THE FRYE TEST FOR ADMISSIBILITY………... 24 A. Marsh v. Smyth............................................................................................... 27 B. True Application of the Frye Test Renders Respondent’s Expert’s Opinion Inadmissible ……………………………………………….............. 29 ii C. Case Law Relied Upon By The Appellate Division Is Unavailing.................. 35 POINT III EVEN ASSUMING GENERAL CAUSATION WAS ESTABLISHED RESPONDENT FAILED TO PROVE SPECIFIC CAUSATION.................................. 40 A. Case Law Relied Upon By The Appellate Division Is Unavailing………….. 45 POINT IV RESPONDENT’S SECOND THROUGH FIFTH CAUSES OF ACTION WERE IMPROPERLY REINSTATED AGAINST APPELLANT……………………. 49 CONCLUSION………………………………………………………………………… 53 iii TABLE OF AUTHORITIES CASES 905 5th Associates, Inc. v. 907 Corp., 47 A.D.3d 401, 851 N.Y.S.2d 393 (1st Dept. 2008) .................................................... 50 Barash v. Pennsylvania Terminal Real Estate Corporation, 26 N.Y.2d 77, 256 N.E.2d 707 (1970) ......................................................................... 50 Bender v. City of New York, 78 F.3d 787 (2d Cir. 1996) ........................................................................................... 51 Bothmer v. Schooler, Weinstein, Minsky & Lester, P.C., 266 A.D.2d 154, 698 N.Y.S.2d 486 (1st Dept. 1999) ................................................. 53 B.T.N. v. Auburn Enlarged City Sch. Dist., 45 A.D.3d 1339, 845 N.Y.S.2d 614 (4th Dept. 2007)…………………...........38, 39, 48 Cabral v. 570 West Realty, LLC, 73 A.D.3d 674, 900 N.Y.S.2d 373 (2nd Dept. 2010)…………………………36, 38, 47 Collins v. Welch, 178 Misc.2d 107, 678 N.Y.S.2d 444 (N.Y. Sup. Ct., N.Y. Co., July 1, 1998)…..14, 15 Daitch v. Naman, 25 A.D.3d 458, 807 N.Y.S.2d 95 (1st Dept. 2006)…………………………………...37 Fraser v. 301-52 Townhouse Corp., 2006 Slip Op. 51855U, *1, 2006 N.Y. Misc. LEXIS 2704, *1-2 (N.Y. Sup. Ct., N.Y. Co., Sept. 27, 2006)(Kornreich, J.)………………..16, 18, 31, 45 Fraser v. 301-52 Townhouse Corp. et al., 2007 N.Y. Slip. Op. 32086(U)(N.Y. Sup. Ct., N.Y. Co., July 9, 2007)….18, 19, 20, 21 Fraser v. 301-52 Townhouse Corp., 57 A.D.3d 416, 870 N.Y.S.2d 266 (1st Dept. 2008), appeal dismissed 12 N.Y.3d 847, 881 N.Y.S.2d 391 (2009) …………………………………...1, 2, 3, 4, 10, 11, 21, 22, 26, 27, 30, 34, 40, 41, 42, 48 iv Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)………………………………………………………...14 Graupner v. Roth, 293 A.D.2d 408, 742 N.Y.S.2d 208 (1st Dept. 2002)………………………………..51 Howell v. New York Post Co., Inc., 82 N.Y.2d 690, 619 N.E.2d 650 (1993)……………………………………………...51 Jazairi v. Royal Oaks Apt. Assocs., L.P., 217 Fed. Appx. 895, 2007 U.S. App. LEXIS 3501 (11th Cir. 2007)…………………21 Mack v. American Handling Equip., 69 A.D.2d 853, 415 N.Y.S.2d 463 (2nd Dept. 1979)…………………………………52 Marsh v. Smyth, 12 A.D.3d 307, 310, 785 N.Y.S.2d 440, 443 (1st Dept. 2004).............26, 27, 28, 29, 30 Martin v. Chuck Hafner’s Farmers’ Market, 28 A.D.3d 1065, 814 N.Y.S.2d 442 (4th Dept. 2006)………………………...36, 37, 38 Morales v. Kiamesha Concord, Inc., 43 A.D.2d 944, 352 N.Y.S.2d 26 (2nd Dept. 1974)…………………………………..52 Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 824 N.Y.S.2d 584 (2006)…….14, 15, 19, 20, 21, 26, 30, 41, 45, 46, 48 People v. Coulter, 182 Misc.2d 29, 697 N.Y.S.2d 498 (N.Y. Dist. Ct. 1999)…………………………...15 People v. Forte, 167 Misc. 868, 4 N.Y.S.2d 913 (N.Y. Sup. Ct., Kings Co., May 28, 1938)…………14 People v. Wernick, 89 N.Y.2d 111, 651 N.Y.S.2d 392 (1996)…………………………………………...14 People v. Wesley, 83 N.Y.2d 417, 611 N.Y.S.2d 97 (1994)…………………………….14, 15, 20, 26, 30 v Prozeralik v. Capital Cities Communications. Inc., 82 N.Y.2d 466, 605 N.Y.S.2d 218 (1993)…………………………………………...53 Rashid v. Clinton Hill Apartments Owners Corp., 70 A.D.3d 1019, 895 N.Y.S.2d 524 (2nd Dept. 2010)……………………………35, 38 Sawyer v. New York Seven-Up Bottling Co., 63 A.D.2d 893, 405 N.Y.S.2d 726 (1st Dept. 1978)………………………………….52 Selig v. Pfizer, 185 Misc.2d 600, 713 N.Y.S.2d 898 (N.Y. Sup. Ct., N.Y. Co., Sept. 13, 2000), aff’d 290 A.D.2d 319, 735 N.Y.S.2d 549 (1st Dept. 2002)…………………………..14 Smith v. Johnson Products Co., 95 A.D.2d 675, 463 N.Y.S.2d 464 (1st Dept. 1983)………………………………….52 Walker v. Sheldon, 10 N.Y.2d 401, 223 N.Y.S.2d 488 (1961)…………………………………………...53 Wright v. Willamette Industries, Inc., 91 F.3d 1105, 1107 (8th Cir. 1996).....................................................................4, 46, 47 RULES CPLR § 5602………….…………………………………………………………………7 1 Defendant-Appellant 360 W. 51st Street Corp. (“Appellant”) respectfully submits this brief in support of Appellant’s appeal of the March 6, 2012 Decision and Order of the Appellant Division, First Department (“Appellate Division”), which reversed the December 18, 2009 Decision of the Honorable Marcy S. Friedman of the Supreme Court, New York County, that dismissed Plaintiff-Respondent Brenda Cornell’s (“Respondent”) Second Amended Complaint in its entirety against Appellant. PRELIMINARY STATEMENT This appeal raises several distinct issues for review. One involves the admissibility of expert evidence regarding general and specific causation in mold based personal injury claims. Instrumental in this analysis is a comparison of the Appellate Division’s decisions in Fraser v. 301-52 Townhouse Corp., 57 A.D.3d 416, 870 N.Y.S.2d 266 (1st Dept. 2008), appeal dismissed 12 N.Y.3d 847, 881 N.Y.S.2d 391 (2009)(R. 2428- 2444) and this action, as very different holdings were reached. The equally important issue involves proximate causation in its most basic form. Finally, an administrative issue exists with respect to the propriety of 2 reinstating a complaint in its entirety without addressing the separate grounds warranting dismissal of four of the five causes of action. To begin, this appeal seeks a determination as to whether an unmodified application of the Frye standard is the appropriate inquiry to determine the admissibility of expert testimony regarding general causation in mold based personal injury claims. Since the Appellate Division rendered its decision in Fraser, supra the initial question of whether or not the relevant scientific community generally accepted that exposure to indoor mold causes adverse health effects in non-allergic individuals has persisted. Indeed the Fraser decision was never intended to be utilized by the judiciary as an outright ban of mold based personal injury claims. Instead, the inquiry for subsequent cases was supposed to be whether the respective plaintiff submitted evidence to demonstrate the general acceptance needed to satisfy the Frye test. The Frye test is the standard in New York for determining the admissibility of challenged expert testimony. As it applies to this action, the inquiry requires proof of general acceptance by the relevant scientific community of the theory of causation proffered by Respondent. In Fraser, the Appellate Division upheld the motion Court’s use of the Frye test and 3 resulting determination that the plaintiffs failed to establish that it was generally accepted within the relevant scientific community (allergists, immunologists, occupational and environmental health physicians and scientists) that exposure to indoor mold caused their adverse health effects (R. 2430, id. at 418). In rendering its decision in this action, the majority of the Appellate Division, in a departure from Fraser, supra, improperly applied a modified version of the Frye test to deem Respondent’s expert’s testimony regarding general causation admissible. There are, however, no grounds for a modification of the Frye standard in this action and the Appellate Division’s decision, as it stands, dangerously lowers the bar for admission of expert evidence regarding general causation in all mold based personal injury claims. This appeal also seeks a determination regarding whether differential diagnosis alone, in lieu of any evidence to quantify the threshold or actual exposure levels to mold, is sufficient to establish specific causation in a mold based personal injury action. In Fraser, the Appellate Division upheld the motion Court’s rejection of plaintiffs’ expert’s reliance on differential diagnosis alone in place of any evidence of exposure to mold in 4 levels sufficient to have caused the claimed injuries (R. 2430, id. at 419). In a departure from its prior ruling, the Appellate Division held in this action that differential diagnosis is sufficient to establish specific causation despite a complete lack of evidence to quantify threshold or actual exposure levels to the molds and other microbial substances alleged to have caused Respondent’s injuries. Accordingly, the Appellate Division’s decision allows a jury to conclude that a plaintiff’s injuries were caused by exposure to mold absent evidence of the identity of the specific injury causing mold, the threshold level of exposure to that mold needed to cause the alleged injury and the actual level of exposure the plaintiff received. In the arena of tort liability, it is of the utmost importance that the fact finder is presented with sufficient evidence with which to make an informed decision. As set forth in Wright v. Willamette Industries, Inc., 91 F.3d 1105, 1107 (8th Cir. 1996) (cited by the Appellate Division in its decision) “actions in tort for damages focus on the question of whether to transfer money from one individual to another, and under common-law principles…that transfer can take place only if one individual proves, among other things, that it is more likely than not that another individual has caused him or her harm…[t]here must be evidence from which the fact 5 finder can conclude that the plaintiff was exposed to levels of that agent that are known to cause the kind of harm that the plaintiff claims to have suffered.” The issues surrounding the question of mold litigation in New York, however, need not be reached in this appeal as the motion Court in this action dismissed Respondent’s complaint in its entirety against Appellant on the ground that Appellant breached no duty to Respondent that proximately caused her injuries. In finding the evidence submitted by Respondent sufficient to infer proximate causation, the Appellate Division stretched the concepts of duty and proximate cause beyond their legal intent. It was undisputed that Appellant did not own the subject apartment building at the time Respondent claims she suffered adverse health effects and that she had no evidence that mold or other allegedly toxic microbial substances were present in her apartment during Appellant’s ownership. Thus, the decision of the Appellate Division should be reversed and the motion Court’s decision reinstated on the grounds that Respondent failed to produce evidence sufficient for an inference of proximate cause. Alternatively, the motion Court’s decision dismissing Respondent’s complaint should be reinstated on the grounds that Respondent failed to 6 establish that 1) her expert’s opinion regarding general causation of her alleged adverse health effects satisfied the Frye test and/or 2) her expert’s reliance on differential diagnosis was insufficient to establish specific causation. Finally, that portion of the motion Court’s decision dismissing the second through fifth causes of action should be reinstated. The Appellate Division failed to rule that the motion Court’s decision regarding these causes of action was improper. ISSUES PRESENTED FOR REVIEW 1. Did Respondent present sufficient evidence to raise a triable issue of fact regarding whether her injuries were proximately caused by Appellant’s alleged breach of duty? 2. Did Respondent establish that her expert’s theory of causation met the Frye standard for admissibility in order to create a triable issue of fact regarding general causation? 3. Did Respondent establish that her expert’s use of differential diagnosis alone was sufficient to create a triable issue of fact regarding specific causation? 7 4. Did the Appellate Division improperly reinstate Respondent’s second through fifth causes of action against Appellant? STATEMENT OF JURISDICTION This Court has jurisdiction pursuant to CPLR § 5602(b)(1). On December 18, 2009, the Honorable Marcy S. Friedman of the Supreme Court of the State of New York, New York County entered a decision and order granting Appellant’s motion for summary judgment and dismissing Respondent’s complaint in its entirety. Respondent appealed the decision to the Appellate Division by Notice of Appeal dated February 19, 2010 (R. 5-6). On March 6, 2012, the Appellate Division reversed the motion Court and reinstated Respondent’s complaint in its entirety against Appellant (R. 3216-3240). Respondent served Appellant with the Appellate Division’s decision on March 7, 2012 and Appellant moved the Appellate Division for leave to appeal to this Court on April 6, 2012. The Appellate Division granted Respondent’s motion on October 2, 2012 (R. 3241). 8 STATEMENT OF FACTS Beginning with the first week in October 2003, Respondent alleges that she became dizzy, disoriented, covered with rashes, unable to breathe, light headed and congested, as well as experienced tightness in her chest, headaches, shortness of breath, a metallic taste in her mouth and other physical symptoms while residing in apartment 1A of 360 West 51st Street, New York, New York (R. 2221). Prior to October 2003, Respondent admits she was in excellent health (R. 2222). Appellant 360 W. 51st Street Corp. did not own the subject building at the time Respondent became ill, having sold it to codefendant 360 West 51st St. Realty, LLC on September 5, 2003, at which time it took possession (R. 104-105). Respondent’s symptoms appeared approximately one month later, contemporaneously with the demolition and/or construction work being performed in the basement by codefendant Supreme Services of New York Inc. at the request of 360 West 51st St. Realty, LLC (R. 2221). Respondent concedes that she did not become ill until after the demolition/construction work took place (R. 2222). Respondent’s expert (Eckardt Johanning, M.D.) opines she was exposed to an “unusual mixture of atypical microbial contaminants” 9 (R. 2486) that resulted in “irritative and allergic-type” symptoms (R. 2494). Respondent cannot identify the microbial agent that she alleges caused her claimed injuries and is unable to quantify her exposure to any substance or the threshold levels needed to result in illness (R. 2487). Dr. Johanning supported his findings through the use of differential diagnosis (R. 2494). Respondent’s medical records establish that she is not allergic to any of the molds found in her home (R. 2111-2126, 2819-2923). PROCEDURAL HISTORY Motion Court Respondent brought suit against Appellant alleging general negligence (personal injury and property damage), constructive eviction, recovery of attorney’s fees, breach of the covenant of quiet enjoyment and mental/emotional distress causes of action stemming from her alleged exposure to mold and other microbial contaminants in her home (R. 2217- 2225). In dismissing Respondent’s action in its entirety, the Honorable Marcy S. Friedman of the Supreme Court of the State of New York, New York County found that Appellant had not breached any duty to Respondent that proximately caused her injuries since it did not own the building she resided in at the time of the occurrence that purportedly caused 10 her alleged injuries (R. 7-24). As submitted by Appellant, and accepted by the motion Court as undisputed, Respondent’s allegations of injuries and damages only appeared after codefendant 360 West 51st St. Realty, LLC purchased the subject apartment building in September 2003 from Appellant and performed demolition and/or construction work in the basement below Respondent’s apartment during the first week of October 2003 (R. 7-24). While not relied upon by the motion Court to dismiss the action against Appellant, Respondent’s personal injury claim against codefendants 360 West 51st Street Realty, LLC and Supreme Services of New York, Inc. was dismissed consistent with the decision in Fraser v. 301-52 Townhouse Corp., 57 A.D.3d 416, 870 N.Y.S.2d 266 (1st Dept. 2008), appeal dismissed 12 N.Y.3d 847, 881 N.Y.S.2d 391 (2009) (R. 7-24).1 Accordingly, this ruling provided an additional, alternative basis for dismissal of the personal injury claim against Appellant. 1 Respondent settled with codefendants Supreme Services of New York Inc. and 360 West 51st Street Realty, LLC after the motion Court’s ruling on the summary judgment motions. Codefendant Brusco Realty Corp. denied any involvement in the ownership or management of the building at the time of Respondent’s alleged exposure (R. 8) and the Second Amended Complaint was dismissed against it in its entirety (R. 23). Codefendant Robert Baranoff was an officer and shareholder of 360 West 51st Street Realty (R. 8) and the Second Amended Complaint was dismissed against him in its entirety (R. 23). 11 In rendering its decision in this action, the motion Court adhered to the findings of the Appellate Division in Fraser, supra on the grounds that the personal injuries alleged and the expert evidence submitted in support of general and specific causation did “not differ materially from that submitted to the Fraser motion court” (R. 11). While Respondent submitted two new studies that were not introduced in Fraser, the motion Court found that they did not provide sufficient evidence to meet the Frye standard since neither established general acceptance by the relevant scientific community of Respondent’s causation theory (R. 12-13). By Notice of Appeal dated February 19, 2010, Respondent appealed the motion Court’s decision (R. 5-6).2 Appellate Division, First Department Majority Opinion Following the submission of briefs and oral argument, in a 3-2 Decision and Order, the Appellate Division reversed the motion Court and reinstated Respondent’s complaint against Appellant in its entirety (R. 3216-3240). The majority first held that the evidence presented by 2 The only parties pursued on appeal were Appellant and codefendant Geoffrey Shotwell. The Appellate Division upheld the motion Court’s ruling dismissing the complaint against Mr. Shotwell and Respondent did not appeal that portion of the decision. 12 Respondent was sufficient to defeat summary judgment on the issue of proximate cause because it supported an inference that the mold ultimately found in Respondent’s apartment (after Appellant no longer owned the subject apartment building) existed in the basement during the time Appellant owned the building (R. 3233- 3234). The majority further held that the motion Court erred in determining that Respondent’s expert evidence was insufficient, pursuant to the Frye standard, to establish general causation between her claimed injuries and the alleged mold/microbial substances that existed in her apartment. The finding was based on the Appellate Division’s conclusion that the two new studies submitted by Respondent provided “some support in existing data, studies [and] literature” for Respondent’s expert’s opinion that a causal link between exposure to indoor mold/microbial substances and Appellant’s alleged adverse health effects existed (R. 3218-3219). The majority also ruled that the motion Court erred in finding that the methodology utilized by Respondent’s expert (differential diagnosis) was insufficient to establish specific causation (R. 3230). This portion of the Appellate Division’s decision was based on its finding that “exposure to toxic molds is capable of causing the types of ailments from which plaintiff suffers,” precise 13 threshold and actual exposure levels are not required and differential diagnosis is a scientifically accepted methodology for determining causation (R. 3228-3230). Dissenting Opinion According to the Appellate Division dissenting Justices, the motion Court’s decision should have been affirmed in its entirety (R. 3236-3240). The dissent found that there was no evidence in the record with which to support an inference of proximate cause given that Respondent’s alleged injuries coincided with the October 2003 renovation work performed by the new building owner and no evidence was submitted to establish that mold existed in Respondent’s apartment during Appellant’s ownership of the building (R. 3237). The dissent was also of the opinion that the majority disregarded the portion of the Frye standard that requires proof that the applicable scientific community generally accepts the theory of causation proffered by Respondent’s expert (R. 3236). The dissent determined, as the motion Court had, that the two additional articles relied upon by Respondent and the majority did not demonstrate that her expert’s theory of causation was generally accepted within the scientific community (R. 3236, 3239). 14 Having failed to find evidence sufficient to establish general causation, the dissent does not appear to have opined on the issue of specific causation. FRYE STANDARD The standard used in New York to determine the admissibility of challenged novel scientific expert evidence is the Frye test. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); People v. Forte, 167 Misc. 868, 872, 4 N.Y.S.2d 913, 917 (N.Y. Sup. Ct., Kings Co., May 28, 1938); Parker v. Mobil Oil Corporation, 7 N.Y.3d 434, 824 N.Y.S.2d 584 (2006); People v. Wernick, 89 N.Y.2d 111, 115, 651 N.Y.S.2d 392, 394 (1996); People v. Wesley, 83 N.Y.2d 417, 422, 611 N.Y.S.2d 97, 100 (1994). Pursuant to the Frye test, for scientific opinion evidence to be admissible, “the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” Frye, supra at 1014. The Frye analysis does not involve determining whether the scientific testimony is correct, but whether most in the particular field believe it to be reliable. See Selig v. Pfizer, 185 Misc.2d 600, 713 N.Y.S.2d 898 (N.Y. Sup. Ct., N.Y. Co., Sept. 13, 2000), aff’d 290 A.D.2d 319, 735 N.Y.S.2d 549 (1st Dept. 2002); Collins v. Welch, 178 Misc.2d 107, 109, 678 15 N.Y.S.2d 444, 446 (N.Y. Sup. Ct., N.Y. Co., July 1, 1998) and Wesley, supra at 439. Generally, courts can make a determination as to whether the Frye standard has been met “by reference to scientific literature or judicial opinions.” People v. Coulter, 182 Misc.2d 29, 35, 697 N.Y.S.2d 498, 502 (N.Y. Dist. Ct. 1999). If these sources are insufficient, the Court must conduct a hearing at which expert testimony will be taken on the issue of “general acceptance” in the relevant scientific community. Id. In People v. Wesley, 83 N.Y.2d 417, 422-23, 611 N.Y.S.2d 97, 99- 100 (1994), this Court noted that the “long-recognized rule of Frye v. United States (supra) is that expert testimony based on scientific principles or procedures is admissible but only after a principle or procedure has ‘gained general acceptance’ in its specified field.” Furthermore, “the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs (emphasis supplied).” Id. at 423. The standard was reiterated in Parker v. Mobil Oil Corporation, 7 N.Y.3d 434, 446-47, 824 N.Y.S.2d 584, 588-590 (2006). 16 THE FRASER DECISIONS In Fraser v. 301-52 Townhouse Corp., 2006 Slip Op. 51855U, *1, 2006 N.Y. Misc. LEXIS 2704, *1-2 (N.Y. Sup. Ct., N.Y. Co., Sept. 27, 2006)(Kornreich, J.)(“Fraser I”), the Honorable Shirley W. Kornreich held, after conducting an extensive ten day Frye hearing involving “more than one-thousand pages of testimony and the introduction of more than seventy scientific articles and books,” (R. 59, id. at *1) that the evidence before her did not establish that the scientific community generally accepted the plaintiffs’ theory of causation (that exposure to mold and/or a damp indoor environment causes the adverse health effects they alleged) (R. 59-79). Critical to her determination were the findings (discussed briefly below) of the Institute of Medicine of the National Academies (“IOM”), The American College of Occupational and Environmental Medicine (“ACOEM”) and the American Academy of Allergy Asthma and Immunology (“AAAAI”) that a causal connection between exposure to mold and/or damp indoor spaces and various adverse health effects has not been established in the applicable scientific community (R. 78, id. at *25). The IOM concluded, after a review of scientific literature addressing the causal link between mold and/or damp indoor spaces and respiratory and 17 allergic symptoms, that: 1) sufficient evidence of a causal relationship was not found; 2) sufficient evidence of an association with respect to upper respiratory (nasal and throat) tract symptoms, asthma symptoms in sensitized asthmatic persons, hypersensitivity pneumonitis in susceptible persons, wheeze and cough exists; 3) limited or suggestive evidence of an association with respect to lower respiratory illness in otherwise-healthy children was found; and 4) there is inadequate or insufficient evidence to even determine whether an association exists with respect to dyspnea (shortness of breath), airflow obstruction (in otherwise-healthy persons), mucous membrane irritation syndrome, chronic obstructive pulmonary disease, inhalation fevers (nonoccupational exposures), lower respiratory illness in otherwise-healthy adults, rheumatologic and other immune diseases, acute idiopathic pulmonary hemorrhage in infants, skin symptoms, asthma development, gastrointestinal tract problems, fatigue, neuropsychiatric symptoms, cancer and reproductive effects (R. 2010-2014). The ACOEM issued an official statement finding that “mold is likely to sensitize and produce allergic responses in allergic individuals” (R. 2021) and “except for persons with severely impaired immune systems, indoor mold is not a source of fungal infections” (R. 2021). The AAAAI reviewed 18 the current science regarding alleged mold based illness and issued a position paper analyzing its observations of what the scientific evidence supports. The AAAAI agreed with the ACOEM and the IOM that a causal link between exposure to indoor mold growth and the type of illnesses claimed by the plaintiffs did not exist (R. 2002-2009). The motion Court also found the testimony of defense expert S. Michael Phillips, M.D. to be “credible, knowledgeable and very impressive” (R. 77, id. at *24). According to Dr. Phillips, associations are not strong enough to permit a causation finding (R. 17, id. at *22). Even strong associations, which by definition occur all the time, are insufficient without “further studies looking at the issue from different perspectives and using a control group” because they may not be valid observations (R. 17, id. at *22). In Fraser v. 301-52 Townhouse Corp. et al., 2007 N.Y. Slip. Op. 32086(U)(N.Y. Sup. Ct., N.Y. Co., July 9, 2007)(Kornreich, J.)(“Fraser II”), Judge Kornreich revisited her decision upon the plaintiffs’ motion to renew/reargue (R. 80-93). In Fraser II, the motion Court rejected the plaintiffs’ argument that the Frye test was improperly utilized and adhered to the prior decision that the scientific community does not generally accept the 19 plaintiffs’ novel “theory of causation” (R. 89) and that proof of a general acceptance of an association within the scientific community is not the equivalent of causation (R. 87). In making the ruling, the motion Court addressed this Court’s decision in Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 824 N.Y.S.2d 584 (2006) that was issued subsequent to the Fraser I decision. The motion Court noted that for purposes of general causation, it might be inferred that proof of a strong/significant association could be proof of causation (R. 87). However, the issue was not addressed given that plaintiffs’ evidence did not even establish that the scientific community generally accepted that there was a strong/significant association between exposure to mold and the alleged injuries (R. 87). The motion Court also dismissed the opinion of Dr. Ammann that “an association that would be acted upon by public health officials and epidemiologists” is the equivalent of causation (quoting Parker, supra at 450) (R. 87-88). In rendering its decision in Fraser II, the motion Court also considered documented criticism raised by scientists in the field regarding the reliability of the AAAAI paper on the grounds of “undisclosed bias” (R. 93) noting that it was not altered as a result (R. 82-83, 93). The motion 20 Court also addressed plaintiffs’ proof that “some scientists do not agree with the position” set forth by the IOM, finding that it “merely demonstrates that there is controversy, not that causation is generally accepted” (R. 93) and that “[u]nanimity is not required for a finding of general acceptance” (quoting People v. Wesley, 83 N.Y.2d 417, 423 [1994]) (R. 93). Finally, upon the motion to renew, the motion Court reversed the original denial of the defendants’ motion for summary judgment on the ground that dismissal of plaintiffs’ personal injury claims was also warranted pursuant to the foundational inquiry set forth in Parker, supra since there was an insufficient foundation to support Dr. Johanning’s finding of specific causation (R. 91-93). The motion Court held that Dr. Johanning’s use of differential diagnosis to arrive at his theory of causation was unsupported given that: A differential diagnosis is a list of possible causes of a symptom. A cause should not be ruled in without a scientific basis for believing that there is general causation: a cause and effect relationship. Additionally, a cause should not be ruled out if there is a scientific basis to believe that the patient’s symptoms could be caused by it. Dr. Johanning testified without underlying proof of causation or strong association, without proof of mold allergies, without reliable standards for measurement of airborne exposure, and without measurements of mold by- products that plaintiffs’ symptoms must have been caused by airborne mold and mold by-products (R. 92). 21 Although some judicial opinions presented by plaintiffs on this motion have agreed that Dr. Johanning’s differential diagnosis has validity, other courts, which this court finds more persuasive, have disagreed…This court agrees with the 11th Circuit [as it ruled in Jazairi v. Royal Oaks Apt. Assocs., L.P., 217 Fed. Appx. 895, 2007 U.S. App. LEXIS 3501 (11th Cir. 2007)] that the talisman of differential diagnosis is not a substitute for underlying science proving that there is causation to rule in a diagnosis (R. 92). In Fraser v. 301-52 Townhouse Corp., 57 A.D.3d 416, 870 N.Y.S.2d 266 (1st Dept. 2008) appeal dismissed 12 N.Y.3d 847, 881 N.Y.S.2d 391 (2009) (“Fraser III”) (R. 2428-2444), the Appellate Division upheld the motion Court’s determination that plaintiffs failed to establish that their theory of causation was generally accepted within the scientific community. (R. 2430, id. at 418). The Appellate Division further noted “that whether plaintiffs’ theory of causation is scrutinized under the Frye inquiry applicable to novel scientific evidence (see Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 446-447 [2006])(full citation omitted) or under the general foundational inquiry applicable to all evidence (see id. at 447), 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” (R. 2430, id. at 418). The Appellate Division clarified its basis for the ruling stating that “plaintiffs’ 22 expert evidence falls short because none of the medical literature in the record supports the stated position of plaintiffs’ expert that the observed association between damp or moldy indoor environments and upper respiratory symptoms is strong enough to be considered, under generally accepted principles of scientific analysis, evidence that the former causes the latter” (R. 2430, id.) ARGUMENT POINT I RESPONDENT FAILED TO ESTABLISH THAT HER ALLEGED INJURIES WERE PROXIMATELY CAUSED BY ANY BREACH OF DUTY BY APPELLANT Codefendant 360 West 51st St. Realty, LLC purchased and took possession of the subject apartment building in which Respondent’s apartment was located from Appellant on September 5, 2003 (R. 104-105). Respondent did not purportedly become sick from the alleged mold and other substances found in her apartment until the first week in October 2003, after demolition/construction work was sanctioned and performed by codefendants 360 West 51st St. Realty, LLC and Supreme Services of New York, Inc., respectively (R. 2221). Prior to October 2003, Respondent 23 alleged she was in excellent health and did not become sick until after the demolition/construction work commenced (R. 2222).3 Despite this, the Appellate Division held that Respondent submitted evidence allowing it to infer that “long-standing water damage” existed in the basement during Appellant’s ownership that resulted in mold that later migrated into Respondent’s apartment during codefendant 360 West 51st St. Realty, LLC’s ownership as a result of the renovation work (R. 3233-3234). In so holding, the majority of the Appellate Division disregarded the undisputed fact that Respondent never claimed she became ill from mold or other purportedly toxic substances that may have existed in the basement prior to the sale of the building to codefendant 360 West 51st St. Realty, LLC. The majority also disregarded that there was no evidence that mold or other purportedly toxic substances existed in Respondent’s apartment or resulted in her alleged injuries during the time Appellant owned the building, and that Appellant no longer owned the building at the time of the alleged demolition/construction activity that resulted in the condition Respondent does claim caused her injuries. 3 The Appellate Division referenced an isolated alleged adverse health reaction Respondent had to transient mold that appeared in her bathroom after a steam pipe broke during Appellant’s ownership of the building. However, there is no dispute that her alleged symptoms resolved completely after she removed the mold with bleach (R. 3219). 24 Respondent’s alleged symptoms did not coincide with any alleged mold/damp condition in the basement, but instead with the October 2003 demolition work with which Appellant was not involved. The record did not support that mold was present in Respondent’s apartment during Appellant’s ownership of the building. As noted by the Appellate Division majority, Respondent’s apartment was tested after Appellant no longer owned the building and codefendant 360 West 51st St. Realty, LLC renovated the basement (R. 3221-3222). Accordingly, the Appellate Division erroneously extended the concept of proximate cause to include a former building owner when there is no evidence that a breach of any duty it owed Respondent proximately caused her alleged injuries. POINT II RESPONDENT FAILED TO PROVE THAT HER EXPERT’S THEORY OF GENERAL CAUSATION MET THE FRYE TEST FOR ADMISSIBILITY Contrary to the Appellate Division majority’s opinion, the motion Court did not use the Fraser III decision as an outright ban on Appellant’s personal injury claim. The motion Court was cognizant of the Appellant Division’s warning contained therein, that its decision was not to be used in 25 such a manner, and that this action was to be analyzed based on the evidence Respondent presented. Accordingly, the motion Court examined the evidence submitted by Respondent and noted that it was identical to the evidence produced by the Fraser plaintiffs with the exception of two studies that were subsequently published. The motion Court examined those studies pursuant to the Frye standard and determined that they did not establish that there is general acceptance within the relevant scientific community of the causation theory espoused by Respondent’s expert. Conversely, the Appellate Division found that the two new studies not only presented evidence of “statistically significant” associations between mold exposure and adverse health effects, but that those associations were strong enough to constitute causation. There was no analysis regarding whether the two studies taken in conjunction with the remainder of the submitted evidence demonstrated general acceptance in the scientific community of 1) the significance of the associations documented in the studies or 2) that the strength of the associations equaled causation. Instead, the majority held that its interpretation of the studies constituted “some support” for Respondent’s expert’s causation theory, which satisfied the Frye standard. 26 In rendering its opinion, the majority of the Appellate Division disregarded the Frye standard as utilized in the Fraser cases and articulated in Marsh v. Smyth, 12 A.D.3d 307, 310, 785 N.Y.S.2d 440, 443 (1st Dept. 2004), Parker v. Mobil Oil Corporation, 7 N.Y.3d 434, 446-47, 824 N.Y.S.2d 584, 589-90 (2006) and People v. Wesley, 83 N.Y.2d 417, 422-23, 611 N.Y.S.2d 97, 100 (1994). Instead, citing to Marsh, supra, the Appellate Division modified the requirement of proof of general acceptance and replaced it with a much less stringent requirement that Respondent demonstrate “some support” for her expert’s theory of general causation. No explanation was provided as to why a different admissibility standard, purportedly pursuant to the Frye test, was utilized when no such modification was made in the inquiry by the Appellate Division in Fraser III. In Fraser III, the Appellate Division upheld the motion Court’s determination that the Fraser plaintiffs did not meet the Frye standard because they failed to establish that their theory of causation (exposure to indoor mold caused their adverse health effects) was generally accepted within the scientific community (R. 2430, 57 A.D.3d at 418). In doing so, the Appellate Division acknowledged that the evidence submitted 27 established a general agreement within the scientific community that an association between indoor dampness and mold existed, but that an association did not equal causation (R. 2429-2430, id. at 417). The Appellate Division never addressed the question of whether the scientific community generally accepted that the association between exposure to indoor mold and adverse health effects was strong enough to infer causation. A. Marsh v. Smyth The concurring opinion in Marsh v. Smyth, 12 A.D.3d 307, 785 N.Y.S.2d 440 (1st Dept. 2004), upon which the Appellate Division relies for its modification, was one Justice’s opinion that the expert admissibility issue presented therein did not require a Frye inquiry in its traditional form, but a slightly different analysis. Id. at 311. Conversely, the majority of the Appellate Division in Marsh held that the proffered experts’ opinion met the Frye standard and that the motion Court went beyond the intended function of the Frye hearing and made its own determination regarding the reliability of the expert evidence. Id. At 308. Regardless, the concurring Justice did not dispute that the Frye test requires general acceptance within the scientific community, which “often involves considering whether a 28 sufficient quantum of other experts in the same field accept the reliability of the theory or process.” Id. at 311. The concurring Justice found that a true application of the Frye test was not appropriate in Marsh because the proffered experts’ opinion was one of the mechanics of an injury, which is not a “novel or experimental” theory of causation. Id. The questioned expert opinion in Marsh dealt with whether the physical actions of the defendants during a surgical procedure injured the plaintiff. He likened it more to an argument that the mechanism of injury had not been seen before, which was not likely to have been addressed in a litany of publications or studies. Id. at 312. Accordingly, in factual situations such as the one presented in Marsh, the concurring Justice found that the Frye test, in its traditional form, would not work and the expert admissibility inquiry must be “adapted to the situation.” Id. He specifically noted that in medical malpractice actions it would create a “virtually insurmountable hurdle” to require plaintiffs to establish that their proffered mechanism of injury was generally accepted by the community. Id. at 313. Thus, the concurring Justice applied a limited evaluation as to whether plaintiff’s experts’ opinion was derived from some 29 “existing data, studies or literature” or if it was a net opinion based solely upon their own personal beliefs. Id. The factual situation presented in this action is not remotely similar to the one in Marsh. The expert question presented herein does not pertain to the mechanics of a physical injury, but whether it is generally accepted that science has established that exposure to a substance is capable of causing an adverse health effect. Additionally, the issue has been extensively examined in the relevant scientific community. Furthermore, the concurring Justice in Marsh provided a logical explanation regarding why he deemed a modification necessary. In this action, the Appellate Division majority provided no explanation as to why it applied a modified Frye inquiry or any justification as to why the modification was warranted in this action and not in Fraser III. B. True Application of the Frye Test Renders Respondent’s Expert’s Opinion Inadmissible The appropriate inquiry regarding the admissibility of Respondent’s expert’s opinion is the Frye test, not a modified version. In Fraser III, as in this action, the very question of whether causation exists between exposure to indoor mold and the adverse health effects claimed by Respondent is at issue. While this question may have existed in the scientific community for 30 a number of years, until such time as there is sufficient evidence presented to demonstrate that causation is generally accepted, it remains a novel scientific principle subject to a Frye inquiry. Parker, supra and People v. Wesley, supra, Marsh, supra and Fraser, supra. Accordingly, in conformance with its Fraser III decision, the Appellate Division should not have assessed whether there was “some” study that echoed Respondent’s expert’s opinion that exposure to mold will cause the complained of adverse health effects or that the association is strong enough to infer causation. The Appellate Division majority should have required that the two new studies establish that the scientific community generally accepts that 1) exposure to indoor mold in a damp environment causes the adverse health effects alleged by Respondent; or 2) there exists a strong enough association that allows causation to be inferred. If the Appellate Division properly applied the Frye standard, as it did in Fraser III, it could not have found that the two additional studies established that the scientific community generally accepts a causal link or strong enough association to infer causation between the alleged exposure to mold and adverse health effects claimed by Respondent. As the motion Court and dissenting Justices of the Appellate Division determined in this 31 action, neither study supports general acceptance of plaintiff’s theory of general causation. Instead, the two new studies reinforce that the scientific community continues to generally accept that different degrees of association between mold exposure and adverse health effects exist, as was found by the Appellate Division in Fraser III. Additionally, both studies rely in part on self-administered questionnaire surveys and individual case studies. Testimony during the Fraser I Frye hearing from the expert the motion Court found most credible, Dr. S. Michael Phillips (R. 77, 2006 Slip Op. 518554 at *24), revealed that “[a] self-reporting population is viewed with extreme suspicion, since it has empirical bias (R. 75, id. at *22). The patient is asked for some information in a leading manner and disproportionately is made up of individuals who are the most vocal and most salient in the population” (R. 75-76, id. at *22). Furthermore, the motion Court in Fraser I found that the Frye standard was not met “by anecdotal or individual case studies” (R. 78, id. at *26). Hydrophilic Fungi and Ergosterol Associated with Respiratory Illness in a Water-Damaged Building (116 Environmental Health Perspectives, June 2008) documents an individual case study conducted by the Division of Respiratory Disease Studies, National Institute for Occupational Safety and 32 Health of employees in a water damaged building (R. 2571-2576). The study resulted in a finding that an association between new-onset asthma and mold present in dust existed, thereby purportedly extending the prior results of the Institute of Medicine (R. 2571, 2576). The study specifically sets forth, however, that “[t]he findings and conclusions…have not been formally disseminated by the National Institute for Occupational Safety and Health and should not be construed to represent any agency determination or policy” (R. 2571). Furthermore, the study was based on “[a] building-wide self-administered questionnaire survey” obtained in September 2001 along with “floor and chair dust samples” collected in April 2002 (R. 2571-2572). The study sets forth that while the findings “are consistent with the involvement of building-related fungal exposure in the causal chain of adult- onset asthma, [they] cannot rule out that fungi-specifically hydrophilic species-may be simply markers of other causative agents in damp environments” (R. 2574). While the study found that “hydrophilic fungi as a group were also strongly associated with odds of respiratory illnesses” (R. 2575) and “significant associations between hydrophilic fungi without yeast and respiratory illnesses,” (R. 2575) those conducting the study acknowledged that they “are not aware of epidemiologic studies 33 demonstrating increased risk of building-related asthma or other respiratory illnesses associated with yeasts and other hydrophilic fungi in floor and chair dusts in water-damaged nonindustrial buildings” (R. 2575). Excess dampness and mold growth in homes: An evidence-based review of the aeroirritant effect and its potential causes (28 Journal of Allergy and Asthma Proceedings, May/June 2007) is a “narrative review” of studies selected by the authors that addressed “the link between a damp and/or mold-contaminated indoor environment and upper airway irritant symptoms” in adults and children (R. 2562). The review was conducted “to consider the most likely biological explanations” for aeroirritant effects of dampness and mold growth “focusing on the potential role of volatile organic compounds” (R. 2562). The authors noted that identifying potential causative agents would assist allergists in the treatment of their patients (R. 2569). With respect to the referenced studies reviewed pertaining to adults (Engvall, Wan and Li, Wieslander, Koskinen, Pirhonen and Saijo), all utilized questionnaire surveys (R. 2563-2564). The authors acknowledged that a question often arising with respect to aeroirritant effects is “whether a damp and/or moldy indoor environment may be contributing to symptoms despite the absence of documented IgE- 34 mediated allergic sensitivity” (R. 2663) reiterating that “epidemiological studies have found an association between exposure to a damp indoor environment and/or the presence of mold in the indoor environment with irritant upper airway symptoms” (R. 2563). The authors determined that the studies reviewed “support the link between a damp indoor environment and mold growth with upper airway irritant symptoms” and that MVOCs “are the most likely candidate compounds as the cause of this aeroirritant effect” (R. 2569). As noted by the Appellate Division in Fraser III, there is general acceptance of an association between exposure to indoor mold and upper respiratory complaints (R. 2429, 57 A.D. 3d at 417). These studies do nothing more than reiterate that such an association exists. They do not constitute evidence of general acceptance within the relevant scientific community that the association has been upgraded to one of direct causation or that the association is strong enough to infer causation. Accordingly, they do not add evidence that would support a departure from the ruling in Fraser III. 35 C. Case Law Relied Upon By The Appellate Division Is Unavailing The Appellate Division’s reliance on case law from other jurisdictions to support its finding of general causation is problematic given that the Fraser III decision made clear that the issue of admissibility of Respondent’s expert’s testimony is on a case by case basis, solely to be determined by the evidence submitted therein. Further compounding the problem is the fact that many of the cases referenced do not indicate that there was even a Frye challenge to the respective plaintiffs’ proffered expert evidence regarding general causation. In those that did involve a Frye test, there is a lack of in depth analysis or identification of the record that would allow a true comparison. In Rashid v. Clinton Hill Apartments Owners Corp., 70 A.D.3d 1019, 1020, 895 N.Y.S.2d 524, 525 (2nd Dept. 2010), the Second Department found that there were competing expert opinions regarding proximate cause. There is no indication that a Frye challenge was made by the defense or that an analysis regarding the admissibility of the expert opinions pursuant to a Frye test was conducted. There is a significant difference between the argument presented in Rashid, that mold was not the cause of an injury, and the argument presented in this action, that mold can not be the cause because 36 the relevant scientific community has not generally accepted the causal connection. The Appellate Division’s reliance on Cabral v. 570 West Realty, LLC, 73 A.D.3d 674, 900 N.Y.S.2d 373 (2nd Dept. 2010) is similarly misplaced. Specifically, the Appellate Division notes that in Cabral, “defendant failed to meet its initial burden of establishing, through scientifically reliable methodology, that no causal link existed between the plaintiff’s injuries and their exposure to mold” (R. 3231). Accordingly, in the context of this action, one is left with the impression that the Second Department must have ruled against the same arguments that are being made herein. However, the Cabral defense did not argue against general causation (i.e., that exposure to mold could not cause the childrens’ asthma). Id. Instead, the defendant argued that mold was not the cause. The Second Department made a point of setting forth that the defendant’s expert did not even opine whether there was general acceptance within the relevant scientific community of plaintiff’s theory of general causation, “that mold can cause asthma.” Id. at 675. Accordingly, no Frye challenge was made. Martin v. Chuck Hafner’s Farmers’ Market, 28 A.D.3d 1065, 814 N.Y.S.2d 442 (4th Dept. 2006) was referenced by the Appellate Division 37 because the Fourth Department held that “plaintiff’s expert affidavit raised a triable issue of fact as to whether the plaintiff’s exposure to aspergillus mold” (allegedly contained in bales of straw) was the proximate cause of his injuries (R. 3232). The case is immaterial because the defendants did not dispute that inhalation of Aspergillus mold could cause plaintiff’s symptoms (general causation). Instead, the issues in Martin were whether the allegedly defective straw contained Aspergillus and whether plaintiff’s one hour exposure was long enough to have caused the reaction (specific causation). Id. at 1066. Plaintiff opposed defendants’ motion by submitting expert reports demonstrating that Aspergillus spores were found in the straw and in his lungs, and that the timing of exposure to the onset of symptoms supported causation. Id. at 1066-1067. The Appellate Division also points to its decision in Daitch v. Naman, 25 A.D.3d 458, 807 N.Y.S.2d 95 (1st Dept. 2006) because it “seemingly embraced the theory that exposure to mold can cause personal injuries” (R. 3232). However, the decision was issued prior to any of the Fraser decisions and there is no indication therein that it involved a challenge to the scientific sufficiency of plaintiff’s theory of causation pursuant to the Frye 38 standard. Accordingly, as in Rashid, supra, Cabral, supra and Martin, supra, it is of no precedential value. Finally, the Appellate Division’s reliance on B.T.N. v. Auburn Enlarged City Sch. Dist., 45 A.D.3d 1339, 845 N.Y.S.2d 614 (4th Dept. 2007) (issued prior to the Fraser III decision) is similarly unavailing. Notably, no reference is made by the majority to the underlying motion Court’s decision that was issued prior to the Fraser I decision and the extensive 10 day Frye hearing that addressed the validity of Respondent’s expert’s theory of causation (R. 2680-2682). In the underlying B.T.N. decision, the arguments made by the defense against plaintiff’s theory of causation were 1) “there is no evidence to substantiate the opinion of plaintiffs’ expert Dr. Eckardt Johanning” and 2) “the plaintiffs’ symptoms are only consistent with multiple chemical sensitivity which is not recognized in the scientific or medical community” (R. 2681). Plaintiffs, however, argued that exposure to mold, not chemical exposure, caused their injuries. Furthermore, Unlike Fraser and this action, the motion Court’s decision does not indicate that scientific studies and literature on the issue of general causation of alleged mold based personal injuries were submitted. The only evidence referenced in the motion Court’s 39 decision was the sworn affidavit of Dr. Johanning, which set forth that his opinion was based on unspecified “records and testimony” (R. 2681). The motion Court in B.T.N. performed what is more appropriately likened to a general foundation inquiry and held that there was “testimony and evidence from which Dr. Johanning could make an informed opinion” (R. 2681). Likewise, the Fourth Department’s decision affirming the motion Court only references competing expert affidavits (R. 2684). The “sufficient epidemiological evidence” noted by the Fourth Department is never identified or described (R. 2683-2684). There is no indication in either decision that the defense made the argument raised in this action and the Fraser case (that the scientific community has not generally accepted that exposure to mold causes the types of symptoms alleged by Respondent) (R. 2683-2684). Accordingly, the Appellate Division erred in utilizing a modified version of the Frye test in order to deem Respondent’s expert’s theory of general causation admissible. The Appellate Division further erred in making its ruling with no evidence before it to establish that the relevant scientific community generally accepts the strength of the associations 40 referenced in the two new studies or that the purported strength infers causation. POINT III EVEN ASSUMING GENERAL CAUSATION WAS ESTABLISHED RESPONDENT FAILED TO PROVE SPECIFIC CAUSATION Contrary to the Appellate Division’s findings, the motion Court did not outright reject the methodology (differential diagnosis) Respondent’s expert used to establish specific causation based on Fraser v. 301-52 Townhouse Corp., 57 A.D.3d 416, 870 N.Y.S.2d 266 (1st Dept. 2008) appeal dismissed 12 N.Y.3d 847, 881 N.Y.S.2d 391 (2009)(“Fraser III”). The motion Court followed the ruling in Fraser III because it was presented with the exact same expert, opinion and methodology that the Appellate Division rejected in Fraser III. In conformance with Fraser III, the motion Court held that Respondent’s inability to establish general causation eliminated the possibility that differential diagnosis could be utilized to prove that Respondent’s alleged adverse health effects were specifically caused by exposure to mold and other microbial substances (R. 17-18). As the Appellate Division did in Fraser III, the motion Court further found that 41 even if general causation was established, differential diagnosis in lieu of any quantifying evidence of threshold and actual exposure levels to the mold and other microbial substances Respondent claims made her ill was insufficient to prove specific causation (R. 18-19). Respondent’s expert could not provide the identity of the mold/microbial substance she was exposed to that allegedly caused her claimed adverse health effects, the threshold level at which that mold/ microbial substance would cause her ailment or any quantification of the level of mold/microbial substance to which she was exposed (R. 18). In rendering its decision, the motion Court noted that the Appellate Division had rejected the exact same proffer of differential diagnosis in lieu of quantitative proof in Fraser III (R. 18-19). In Fraser III, the Appellate Division held that plaintiffs failed to establish specific causation on the grounds that their expert could not “specify the threshold level of exposure to dampness or mold needed to produce” the alleged injuries (R. 2430, 57 A.D.3d at 419). Citing to Parker v. Mobil Oil Corporation, 7 N.Y.3d 434, 446-47, 824 N.Y.S.2d 584, 589-90 (2006), the Appellate Division stated that “[w]ithout evidence that they were exposed to a level of dampness or mold sufficient to cause their alleged injuries (specific causation), plaintiffs cannot prevail on their personal injury 42 claims” (R. 2431, 57 A.D.3d at 419). The Appellate Division acknowledged that plaintiffs were able to provide measurements of the level of mold found in their home, but lacked expert testimony regarding the level at which the mold could result in the claimed adverse health effects (R. 2431-2432, id. at 420). Finally, the Appellate Division rejected differential diagnosis alone as “an adequate substitute for quantitative proof” (R. 2432, id.). Conversely, in this action the Appellate Division held that differential diagnosis alone without any evidence of threshold or actual exposure levels is sufficient to establish specific causation. It bases the ruling on the evidence of mold in Respondent’s apartment, her expert’s opinion that exposure to the mold caused her ailments (supported with IG testing) and the “undisputed fact” that exposure to molds can cause the ailments she suffered (R. 3229-3232). The majority explains that it never rejected differential diagnosis as scientifically unsound, but requires that “a given agent must be capable of causing the harm observed” for it to be used (R. 3232). In making its ruling, the Appellate Division provided no explanation regarding why a different requirement for the use of differential diagnosis was warranted in this action, but not in Fraser III. 43 In addition to ignoring its ruling in Fraser III, the Appellate Division majority mischaracterizes the evidence before it in order to deem Respondent’s expert’s use of differential diagnosis sufficient for specific causation pursuant to its new requirement. The majority inaccurately asserts that “mold is capable of causing the ill-health effects experienced by plaintiff” and misconstrues defense expert Dr. Phillips opinion that “[m]olds can cause a wide spectrum of illnesses, including allergies, irritation, hypersensitivity pneumonitis and direct infection” (R. 3232-3233). In Both Fraser I and this action the evidence submitted, including the AAAAI position paper (R. 2002-2009) and Dr. Phillips’ Affidavit (R. 2107- 2128) (discussing the findings of the American College of Occupational and Environmental Medicine)(R. 2122, ¶65), address that it is generally accepted within the scientific community that “[e]xposure to molds can cause human disease through several well-defined mechanisms,” including an immune response in allergic individuals (allergies or hypersensitivity pneumonitis), direct infection by an organism and ingestion of myco-toxins in large doses from spoiled or contaminated food (R. 2002; 2122, ¶65). In making its inaccurate assertion regarding what is in dispute in this action, the Appellate Division majority overlooked or disregarded the fact that 44 Respondent’s alleged ailments did not result from any of the three accepted mechanisms. There is no proof she is allergic to molds, she was not diagnosed with hypersensitivity pneumonitis, she did not suffer a direct mold infection or become ill from eating contaminated food. Instead, as set forth in the AAAAI position paper, Respondent’s alleged injuries fall into the class of “the ill-defined” and “new mold-related illnesses” that “remain largely or completely unproved” (R. 2002). The majority also overlooked or disregarded the fact that defense expert Dr. Phillips set forth in his Affidavit that “[i]f mold could cause [Respondent’s] problems, then there should be valid epidemiologic studies documenting an association between mold and the signs and symptoms, which she experienced” (R. 2126-2127, ¶78). Dr. Phillips further stated “I specifically reviewed the medical literature, and as an epidemiologist and Senior Scholar in clinical Epidemiology, I can unequivocally state that there are no epidemiologic studies, which would support the majority of contentions of Ms. Cornell. The epidemiologic studies, based on population bases, clearly do not substantiate the possibility of any such association” (R. 2127, ¶78). Finally, Dr. Phillips stated that “there is no theoretical or experimental construct upon which to base a validation of a causal 45 relationship” (R. 2127, ¶79). Accordingly, it is disputed that mold can cause plaintiff’s alleged illnesses. Finally, in relying on Respondent’s IgG findings, the Appellate Division majority overlooked or disregarded the fact that there were IgG findings in the Fraser plaintiffs as well that did not persuade the motion Court to find causation, a decision the Appellate Division upheld. Testimony during the Fraser I Frye hearing revealed that antibodies tell us whether “the immune system has reacted to something,” but it was undisputed that the presence of IgG antibodies are not indicators of an allergic response (R. 76, 2006 Slip Op. 51855U at *23). A. Case Law Relied Upon By The Appellate Division Is Unavailing Contrary to its decision in Fraser III, the majority now relies upon this Court’s decision in Parker v. Mobil Oil Corporation, 7 N.Y.3d 434, 824 N.Y.S.2d 584 (2006) to support its ruling that Respondent need not provide any evidence to quantify the threshold and actual exposure levels to the molds she claims made her ill (R. 3230). In Parker, this Court acknowledged that determining the credibility of the methodology utilized in a toxic tort case to arrive at a causation opinion is problematic given that it may be “difficult or impossible” to quantify a threshold level of exposure 46 needed to establish specific causation. Id. at 447. Accordingly, this Court held that it may not always be necessary for exposure levels to be precisely quantified or for a dose-response relationship to be utilized if the methodology employed to arrive at the causation opinion was generally accepted by the scientific community. Id. at 448. The Parker decision does not appear to support that an opinion lacking in any quantification with respect to exposure levels is sufficient to establish specific causation. Indeed, this Court held that the Parker plaintiff was unable to establish specific causation because neither of his experts provided any quantifying evidence as to the level of benzene to which he was exposed. Id. at 449. This Court specifically noted that “even given that an expert is not required to pinpoint exposure with complete precision” there must be some evidence by which exposure can be quantified in order to determine if an individual has been exposed to a sufficient amount to cause the alleged injury. Id. Accordingly, while this Court’s decision in Parker appears to provide flexibility in toxic tort cases with respect to evidence of exposure, it does not eliminate the necessity for it altogether. Similarly, the Appellate Division cites to Wright v. Willamette Indus., Inc., 91 F.3d 1105 (8th Cir 1996) in support of its position that a complete 47 lack of evidence regarding threshold and actual exposure levels will not defeat specific causation. However, the United States Court of Appeals for the Eighth Circuit held that the plaintiff could not prove causation because he failed to submit evidence establishing the “hazardous levels of exposure.” Id. at 1107. The Eighth Circuit echoed this Court in Parker by agreeing that while a precise quantification is not always necessary in toxic tort cases, some quantifying evidence derived by a scientifically accepted method must be presented. Id. at 1108. Otherwise, the jury has nothing with which to make a reasonable inference of causation. Id. The Appellate Division’s reliance on Cabral v. 570 West Realty, LLC, 73 A.D.3d 674, 900 N.Y.S.2d 373 (2nd Dept 2010) is also unavailing. In Cabral, the defense expert’s testimony against specific causation was the boilerplate statement that there was no evidence in the medical records or history to support that exposure to mold had caused asthma. Id. at 374-375. There is no indication in the decision that the defense challenged specific causation on the grounds that plaintiff failed to present evidence of threshold or actual exposure levels to mold. In fact, the deficiencies in the defendant’s expert’s affidavit were so prolific that summary judgment was denied 48 outright for defendant’s failure to meet its prima facie burden with respect to general or specific causation. Finally, to the extent differential diagnosis was permitted in lieu of any scientifically supported evidence of threshold and actual exposure levels in B.T.N. v. Auburn Enlarged City Sch. Dist., 45 A.D.3d 1339, 845 N.Y.S.2d 614 (4th Dept. 2007), that would appear to be inconsistent with this Court’s decision in Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 824 N.Y.S.2d 584 (2006) and the Fraser v. 301-52 Townhouse Corp., 57 A.D.3d 416, 870 N.Y.S.2d 266 (1st Dept. 2008), appeal dismissed 12 N.Y.3d 847, 881 N.Y.S.2d 391 (2009)(Fraser III)(R. 2428-2444) decision. Notably, B.T.N. was rendered prior to Fraser III. Accordingly, the Appellate Division erred in finding that differential diagnosis alone, in lieu of any evidence quantifying the threshold and actual exposure levels to mold, was sufficient to establish specific causation. The Appellate Division further erred in finding that the use of differential diagnosis was validated by the inaccurate premise that it was undisputed that mold can cause the Respondent’s alleged ailments. 49 POINT IV RESPONDENT’S SECOND THROUGH FIFTH CAUSES OF ACTION WERE IMPROPERLY REINSTATED AGAINST APPELLANT By reinstating Respondent’s complaint in its entirety, the Appellate Division overlooked or disregarded the alternative legal arguments the motion Court relied upon in dismissing Respondent’s second through fifth causes of action. The Appellate Division neither addressed nor ruled that dismissal of the claims was improper. In addition to her personal injury and property damage claims, Respondent alleged general constructive eviction, recovery of attorney’s fees, breach of the covenant of quiet enjoyment and mental/emotional distress causes of action against Appellants stemming from her alleged exposure to “mold and other harmful substances” in her apartment (R. 2217- 2225). In addition to Respondent’s inability to prove causation with respect to her alleged health ailments, Appellant raised separate arguments warranting dismissal of the second through fifth causes of action. Appellant moved to dismiss the second and fourth causes of action for constructive eviction and breach of the covenant of quiet enjoyment on the grounds that the former is duplicative of the latter and that such a claim can 50 only be brought against the landlord at the time of the alleged constructive eviction. See Barash v. Pennsylvania Terminal Real Estate Corporation, 26 N.Y.2d 77, 256 N.E.2d 707 (1970); 905 5th Associates, Inc. v. 907 Corp., 47 A.D.3d 401, 851 N.Y.S.2d 393 (1st Dept. 2008). The motion Court agreed and dismissed the second cause of action on the grounds that it was duplicative of the fourth cause of action, which was dismissed because it was undisputed that Appellant did not own the building at the time of the alleged property damage or breach of the covenant of quiet enjoyment (R. 20-22). Respondent did not even specifically challenge the dismissal of the second and fourth causes of action in her appeal to the Appellate Division. Similarly, Respondent did not argue against the motion Court’s dismissal of her third cause of action for attorney’s fees. Indeed, no evidence was submitted to establish her entitlement to such fees from Appellant. Finally, Appellant sought dismissal of the fifth cause of action for intentional or reckless infliction of emotional distress (for which Respondent sought punitive damages) on the grounds that Respondent failed to establish the requisite elements. Respondent was unable to produce any evidence that 51 Appellant acted in an extreme and outrageous way with the intent to cause, or that it ignored a substantial probability of causing her, severe emotional distress. See Bender v. City of New York, 78 F.3d 787, 790 (2d Cir. 1996); Howell v. New York Post Co., Inc., 82 N.Y.2d 690, 619 N.E.2d 650 (1993); Graupner v. Roth, 293 A.D.2d 408, 742 N.Y.S.2d 208 (1st Dept. 2002). Respondent’s sole argument supporting this cause of action was based upon the self serving, boilerplate statement that Appellant failed to take reasonable measures in response to water leaks that occurred in the basement. According to Mr. Shotwell (an officer and shareholder of Appellant), the leaks in the basement were “attended to as soon as was humanly possible” (R. 2290). Mr. Shotwell did not see any mold, but it was suggested that mold was present so the damp area in the basement was treated with bleach (R. 2295). The affected area was limited to the southwest corner of the basement adjacent to a courtyard that belongs to the neighboring building (R. 2293), and was under five square feet (R. 2294). Furthermore, Appellant had the area tested twice for mold by Environmental Assessments & Solutions, Inc. (R. 2298-2299, 3051-3056). The results set forth in the October 14, 1998 report, indicated that the air quality in the basement was “acceptable based on the total count of mold” (R. 3051). 52 Respondent failed to contradict Appellant’s proofs of reasonable responsive action and submitted no evidence that Appellant’s response to the water leaks in the basement were anything but reasonable and cooperative. Accordingly, she was unable to establish the threshold (for outrageous conduct, wanton and/or reckless acts, or demonstrated dishonesty or criminal indifference) needed to substantiate her claim for intentional or reckless infliction of emotional distress. Regardless, Respondent never argued that Appellant acted in a wanton or reckless manner with respect to any alleged hazardous condition in her apartment. Her allegations were strictly limited to the alleged hazardous condition in the basement, which for the reasons set forth above, was not causally related to her alleged injuries. Accordingly, since speculative arguments do not defeat summary judgment, the fifth cause of action was properly dismissed by the motion Court. See Mack v. American Handling Equip., 69 A.D.2d 853, 415 N.Y.S.2d 463 (2nd Dept. 1979); Sawyer v. New York Seven-Up Bottling Co., 63 A.D.2d 893, 405 N.Y.S.2d 726 (1st Dept. 1978); Smith v. Johnson Products Co., 95 A.D.2d 675, 463 N.Y.S.2d 464 (1st Dept. 1983); Morales v. Kiamesha Concord, Inc., 43 A.D.2d 944, 352 N.Y.S.2d 26 (2nd Dept. 1974). 53 Similarly, Respondent failed to prove entitlement to punitive damages given that such relief may only be awarded when an intentional and deliberate wrongdoing is committed. See Prozeralik v. Capital Cities Communications, Inc., 82 N.Y.2d 466, 479, 605 N.Y.S.2d 218, 225-226 (1993). There was no evidence produced that Appellant consciously acted with malice or with a deliberate disregard of Respondent’s interests to warrant classifying its alleged actions and/or omissions as willful or wanton. See Walker v. Sheldon, 10 N.Y.2d 401, 405, 223 N.Y.S.2d 488, 491 (1961); Bothmer v. Schooler, Weinstein, Minsky & Lester, P.C., 266 A.D.2d 154, 698 N.Y. S.2d 486, 487 (1st Dept. 1999). Accordingly, the Appellate Division erred in reinstating Respondent’s complaint in its entirety against Appellant. CONCLUSION Based on the foregoing, Appellant respectfully requests that this Court hold that 1) Respondent did not present sufficient evidence that her injuries were proximately caused by any breach of duty of the Appellant; 2) Respondent’s expert evidence was inadmissible pursuant to the Frye standard and failed to create a triable issue of fact regarding general causation; 3) Respondent's expert's use of differential diagnosis was insufficient to create a triable issue of fact regarding specific causation; and 4) the second through fifth causes of action of the complaint were improperly reinstated against Appellant. Accordingly, summary judgment should be entered in Appellant's favor and this action dismissed. Dated: New York, New York January 25, 2013 BONNER KIERNAN TREBACH & CROCIATA, LLP r n Mindy L. Jayne Attorneys for Appellant Empire State Building- 59th Floor New York, New York 10118 (212) 268-7535 54