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: MINDY L. JAYNE (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 Defendants, STREET REALTY, LLC, BRUSCO REALTY CORP., ROBERT BARANOFF, SUPREME SERVICES OF NEW YORK INC. and GEOFFREY SHOTWELL, – and – 360 W. 51ST Defendant-Appellant. STREET CORP., ––––––––––––––––––––––––––––––– 360 WEST 51ST Third-Party Plaintiffs, ST. REALTY, LLC, BRUSCO REALTY CORP., ROBERT BARANOFF and BRUSCO REALTY MANAGEMENT LLC, – against – SUPREME SERVICES OF NEW YORK INC. and ANDRE VAQUE, Third-Party Defendants. REPLY BRIEF FOR DEFENDANT-APPELLANT BONNER KIERNAN TREBACH & CROCIATA LLP Attorneys for Defendant-Appellant Empire State Building 350 Fifth Avenue, 59th New York, New York 10118 Floor Tel.: (212) 268-7535 Fax: (212) 268-4965 Date Completed: August 12, 2013 i TABLE OF CONTENTS TABLE OF AUTHORITIES ............................................................................ ii-iv PRELIMINARY STATEMENT .......................................................................... 1 ARGUMENT ........................................................................................................ 4 I. PROXIMATE CAUSE DOES NOT EXIST ................................... 4 II. THE FRYE ANALYSIS WAS PROPERLY MADE BY THE MOTION COURT ............................................................ 8 III. GENERAL AND SPECIFIC CAUSATION WERE NOT ESTABLISHED……………………………………………………12 A. General Causation .................................................................. 12 i. The Frye Standard Was Modified ............................... 13 ii. Association v. Causation ............................................. 15 iii. Public Health Concern Does Not Support General Causation .......................................... 19 iv. The Decisions Relied Upon By Respondent Do Not Support General Causation ............................. 21 v. The Alleged Existence Of Triable Issues Of Fact Does Not Support General Causation ............ 27 B. Specific Causation.................................................................. 28 C. Conclusion ............................................................................. 37 IV. RESPONDENT’S SECOND THROUGH FIFTH CAUSES OF ACTION WERE IMPROPERLY REINSTATED .................... 38 CONCLUSION ..................................................................................................... 40 ii TABLE OF AUTHORITIES CASES 360 West 51st Street v. Brenda Cornell, Index No. 106494/03 (N.Y. Civ. Ct., Aug. 16, 2005) (Cavallo, E.)………...21, 22 Barbuto v. Winthrop University Hospital, 305 A.D.2d 623, 760 N.Y.S.2d 199 (2nd Dept 2003)……………………………24 Bender v. City of New York, 78 F.3d 787 (2d Cir. 1996)……………………………………………………...39 Brandt v. Rokeby Realty Co., 2006 Del. Super. LEXIS 280 (Del. Super. July 7, 2006)………………………..33 B.T.N. v. Auburn Enlarged City Sch. Dist., 45 A.D.3d 1339, 845 N.Y.S.2d 614 (4th Dept. 2007)……………………..27, 33, 34 Cabral v. 570 West Realty, LLC, 73 A.D.3d 674, 900 N.Y.S.2d 373 (2nd Dept. 2010)…………………………….23 Cavallo v. Star Enterprise, 892 F.Supp. 756 (E.D. Va., 1995) rev’d in part on other grounds, 100 F.3d 1150 (4th Cir. 1996)……………………………………………31, 34, 36 Daitch v. Naman, 25 A.D.3d 458, 807 N.Y.S.2d 95 (1st Dept. 2006) …………………………………24 Ferguson v. Riverside Sch. Distr. Number 416, No. CS-00-0097-FVS (E.D. Eash., Feb. 5, 2002)…………………………...33, 34 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.)…………………...10, 22 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)…….10, 21 iii 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, 8, 9, 10 Gayle v. Port Authority of New York and New Jersey, 6 A.D.3d 183, 775 N.Y.S.2d 2 (1st Dept. 2004)…………………………………26 Graupner v. Roth, 293 A.D.2d 408, 742 N.Y.S.2d 208 (1st Dept. 2002)…………………………...39 Howell v. New York Post Co., Inc., 82 N.Y.2d 690, 619 N.E.2d 650 (1993)…………………………………………39 Jackson v. Nutmeg Technologies, Inc., 43 A.D.3d 599, 842 N.Y.S.2d 588 (3rd Dept. 2007) ...................................... 24, 25 Jazairi v. Royal Oaks Apt. Assocs., L.P., 217 Fed. Appx. 895, 2007 U.S. App. LEXIS 3501 (11th Cir. 2007)…….31, 34, 35 Jazylo v. Leong, No. 05-2482, Slip Op. (N.Y. Sup. Ct., Ulster Co., May 25, 2007)……………...26 Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 492 N.Y.S.2d 584 (N.Y. 1985)………………………………...22 Kurtz v. Chicorp Financial Services, 286 A.D.2d 753, 755, 731 N.Y.S.2d 187, 188 (2nd Dept. 2001)………………...23 Lopez v. Gem Gravure Co., Inc., 50 A.D.3d 1102, 858 N.Y.S.2d 226 (2nd Dept. 2008)…………………………...24 Lustenring v. AC&C, Inc., 13 A.D.3d 69, 786 N.Y.S.2d 20 (1st Dept. 2004)………………………………..26 Marsh v. Smyth, 12 A.D.3d 307, 310, 785 N.Y.S.2d 440, 443 (1st Dept. 2004)…………..13, 14, 15 Martin v. Chuck Hafner’s Farmers’ Market, 28 A.D.3d 1065, 814 N.Y.S.2d 442 (4th Dept. 2006)…………………………...24 iv Morris v. New Property Associates, No. 05-9313, Slip Op. (N.Y. Sup. Ct., Westchester Co., Aug. 20, 2007)……….33 New Haverford P’ship v. Stroot, 772 A.2d 792, 2001 Del. LEXIS 201 (Del. 2001)………………………………33 Nonnon v. City of New York, 32 A.D.3d 91, 819 N.Y.S.2d 705 (1st Dept. 2006)………………………………25 Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 824 N.Y.S.2d 584 (2006)…………………2, 21, 28, 29, 35, 37, 38 Rashid v. Clinton Hill Apartments Owners Corp., 70 A.D.3d 1019, 895 N.Y.S.2d 524 (2nd Dept. 2010)…………………………...23 Roche v. Lincoln Prop. Co., 278 F. Supp. 2d 744, 752-753 (E.D. Va., 2003) aff’d at 2006 U.S. App. LEXIS 8588 (4th Cir., 2006)……………….31, 34, 35, 36 Stevens v. Fennessy, No. 96-0403 (Mass. Super. June 19, 2002)……………………………………...33 Sweeney v. Purcell Construction Corp., 20 A.D.3d 872, 873, 798 N.Y.S.2d 613, 614 (4th Dept. 2005)………………….25 Wright v. Willamette Industries, Inc., 91 F.3d 1105, 1107 (8th Cir. 1996)………………………………………………..3 1 PRELIMINARY STATEMENT The underlying theme of the Appellate Division’s decision and Respondent’s argument is that legal concepts should be blurred, well established legal standards altered and case law misused in order to grant a plaintiff her day in court when the evidence of record does not establish that modern day science supports her claim. It is evident that the Appellate Division wanted Respondent to have her day in court, but lacked the necessary evidentiary support and legal authority to make that ruling. Accordingly, a series of errors were made in order to reverse summary judgment granted to the Appellant. To begin, the concepts of duty and proximate causation were stretched beyond their legal intent so that evidence of a condition that did not cause Respondent’s injuries could be deemed sufficient to defeat summary judgment. The proximate cause ruling was followed by the Appellate Division’s inaccurate determination that the motion Court utilized 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)(R. 2428- 2444) decision as an outright ban of Respondent’s case despite clear evidence to the contrary. 2 Next, the Appellate Division improperly modified the Frye standard from “general acceptance” to “some support” because the record lacked any evidence that the relevant scientific community has generally accepted Respondent’s expert’s theory of general causation. However, because the record was devoid of even “some support” for Respondent’s claim that her mechanism of exposure to mold caused her injuries, the Appellate Division had no choice but to declare that an association is the equivalent of causation despite a lack of evidence that the relevant scientific community agrees. Finally, after establishing general causation, the Appellate Division had to overcome the fact that Respondent’s expert relied solely on differential diagnosis (in lieu of any threshold or actual dose levels, or any other scientific expression of exposure) to arrive at his finding of specific causation. Given that the record lacks any evidence that science: 1) has established levels at which the substances Respondent claims made her ill are capable of causing injury; or 2) accepts that no such levels are necessary for causation, the Appellate Division erroneously held that this Court’s decision in Parker v. Mobil Oil Corporation, 7 N.Y.3d 434, 824 N.Y.S.2d 584 (2006) provided a green light for the use of differential diagnosis alone. 3 An action in tort contemplates having one party financially compensate another for injuries, thus it is of the utmost importance that the fact finder is presented with sufficient reliable evidence that allows for an educated decision. Wright v. Willamette Industries, Inc., 91 F.3d 1105, 1107 (8th Cir. 1996). The judiciary is thus charged with the function of ensuring that theories of general causation and findings of specific causation are not presented to a jury when they have not been demonstrated to have been generally accepted in the relevant scientific community or arrived at by reliable methodology respectively. Respondent understandably finds it difficult to accept, in this day and age, that the relevant scientific community has not established that her mechanism of exposure to the substances she alleges caused her injuries is capable of causing her injuries. However, that is the world in which she lives. Accordingly, affirming the Appellate Division’s decision in this action would negate the judiciary’s gatekeeping function and present the opportunity for a jury to base its verdict on a theory that has not yet been accepted by the relevant scientific community. Simply put, Respondent has failed to rebut Appellant’s arguments regarding the errors committed by the Appellate Division in reversing the motion Court’s decision granting Appellant summary judgment and 4 dismissing Respondent’s complaint in its entirety, including the improper/inadvertent reinstatement of Respondent’s second through fifth causes of action. Accordingly, the decision of the motion Court should be reinstated in its entirety. ARGUMENT I. PROXIMATE CAUSE DOES NOT EXIST In light of the undisputed facts of this case, Respondent fails to explain how the majority of the Appellate Division could have been correct in inferring proximate cause based solely on evidence that mold had to be present in the basement when Appellant owned the building. Even assuming that such mold existed, the Appellate Division and Respondent do not explain how that constitutes a proximate cause of Respondent’s injuries. Rather than focus on this critical issue, Respondent instead expends great energy trying to demonstrate that Appellant had notice of the alleged mold and the inadequacy of the steps it took to address the issue. This appears to be a rather odd tactic considering Respondent alleges that the hazardous condition that caused her injuries did not solely consist of mold and was created by the construction work commissioned by new owner 360 West 51st St. Realty, LLC (R. 2487). Indeed, the toxic concoction 5 Respondent alleges made her ill is described as an “unusual mixture of atypical microbial contaminants” (R. 2486); “[a] mixture of dust, microbial growth, mold, heavy metals, and a diversity of fungi and bacteria (R. 2487); “a biological agent or a mixture of agents that included allergens and irritants…” (pg. 30 of brief); and a “horrendous ‘mixture’ of contaminants” that included lead, arsenic, barium, copper, iron, manganese and zinc (Respondent Brief, pg. 39)(R. 2972-2973). Furthermore, Respondent does not dispute it was the construction activity that created the condition which infiltrated her apartment, by disturbing “spores and dust” and generating “sawdust and metal dust” (via dismantling of an old oil tank) (Respondent Brief, pg. 21). Indeed, on the very day that the new building owner’s contractors were removing old furniture, wood and an unused oil tank from the basement, Respondent “experienced dizziness, chest tightness and congestion, shortness of breath, disorientation, swollen eyes, a body rash, and a metallic taste in her mouth (Respondent Brief, pg. 20). The Appellate Division infers proximate causation in this action based on evidence supporting Respondent’s argument that there had to have been mold present in the basement when Appellant owned the building. Accordingly, accepting the logic behind the Appellate Division’s reversal of 6 summary judgment requires this Court to subscribe to the theory that proximate cause is to be inferred because Appellant’s alleged failure to find mold in the basement and eradicate it presented the remote possibility that someday in the future, when Appellant no longer owned the building, someone else might negligently remediate the basement, which would not only create an allegedly toxic concoction of sawdust, metal dust, mold and other contaminants, but force that mixture into Respondent’s apartment and make her ill. The Appellate Division made this leap of logic despite the undisputed fact that Appellant did not create the hazardous mixture of contaminants she alleges made her ill because it did not commission, perform or control the construction activity that did. Instead of addressing the proximate cause argument, Respondent attempts to distract this Court with the claim that Appellant had notice of mold in the basement. This argument fails because Respondent neglects to explain how Appellant’s alleged notice of mold in the basement constitutes a breach of duty that proximately caused her injuries given the facts of this case. Indeed, it is undisputed that Respondent never resided in the basement, never reacted adversely to any mold that allegedly existed therein 7 nor complained about the alleged condition during Appellant’s ownership of the building. In support of her notice argument, Respondent relies on the complaints about mold that came from the tenant residing in the basement apartment. However, Appellant addressed the tenant’s complaints by, among other things, having the basement apartment tested twice by Environmental Assessments & Solutions, Inc. (R. 3051-3062). Neither report indicated that a dangerous or hazardous condition existed in the basement (R. 3051-3062). Furthermore, the results of the July 9, 2003 testing, which included testing the basement common area, revealed no detection of: 1) moisture; 2) mold staining; 3) mold odor or 4) experience of irritation (R. 3060). “At the time of inspection and testing no mold contamination was identified” (R. 3061). Additionally, the total mold spore count in the basement common area was lower than that detected in the basement apartment and that which was found outdoors (R. 3061). Even assuming that Appellant had notice that mold might be hiding in the basement, Respondent’s argument is, at best, limited to notice of a condition that did no harm to Respondent. The evidence in the record, as a matter of law, does not support that any breach of duty by Appellant was a 8 proximate cause of Respondent’s injuries. Indeed, the only inference supported by the evidence is that a breach of duty allegedly committed by the new building owner 360 West 51st St. Realty, LLC and its construction company Supreme Services of New York, Inc., proximately caused Respondent’s alleged adverse health effects. That duty was to protect Respondent and her apartment from the construction activity that created the alleged toxic mixture that she claims infiltrated her apartment and made her ill. In light of the above, Respondent has failed to rebut Appellant’s argument that the Appellate Division erroneously extended the concept of proximate cause and the motion court’s decision dismissing Respondent’s complaint in its entirety should be reinstated. II. THE FRYE ANALYSIS WAS PROPERLY MADE BY THE MOTION COURT Instead of addressing Appellant’s criticisms of the Appellate Division’s ruling that the motion Court used 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) as an outright ban of her personal injury claim, Respondent simply parrots their holding. However, nowhere in the Appellate Division’s decision is an 9 explanation as to how the motion Court used Fraser III as an outright ban when the unique circumstances of this action presented the exact same personal injury claims, mechanism of exposure to mold, expert testimony and scientific evidence that was considered in Fraser with the exception of two studies. As outlined in Appellant’s Brief, the motion Court properly followed the ruling in Fraser III because the personal injuries alleged and evidence submitted in this action did “not differ materially from that submitted to the Fraser trial court” (R. 11) during the Frye hearing and plaintiffs’ motion for reargument in that case (A 10-11, 19). In addition to being bound by the Fraser III decision regarding the evidence the Appellate Division previously deemed insufficient to satisfy the Frye requirement of general acceptance, the motion Court performed its own Frye analysis and properly concluded that the two new studies did not constitute evidence of general acceptance of Respondent’s theory of general causation (R. 12-13). The motion Court also appropriately found that it was bound by the Fraser III decision regarding Respondent’s theory of specific causation because Dr. Johanning utilized the same methodology in this action to arrive at his specific causation finding that was rejected in Fraser III (R. 18). 10 In addition, the motion Court was cognizant of the Appellant Division’s warning in Fraser III that its decision was not to be used as an outright ban and that this action was to be analyzed based on the evidence submitted (R 19). It is evident from the motion Court’s decision that all of the evidence presented in this action was considered in determining that it was substantially the same as that before the lower Court 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”) (R. 59-79) and Fraser v. 301-52 Townhouse Corp. et al., 2007 N.Y. Slip. Op. 32086(U)(N.Y. Sup. Ct., N.Y. Co., July 5, 2007)(Kornreich, J.)(“Fraser II”) (R. 80-93). Simply put, the motion Court was bound by the Appellate Division’s decision in Fraser III (R 7-24), which held that the evidence before it was insufficient to support Dr. Johanning’s theory of general causation or finding of specific causation. Respondent offers no legal authority to support the Appellate Division’s ruling to the contrary. Even assuming, in arguendo, that the motion Court utilized Fraser III as an outright ban, it would not negate the Appellate Division’s improper findings related to general causation (modification of the Frye standard and proclamation that association equals causation) and specific causation 11 (differential diagnosis alone in lieu of any scientific expression of exposure is sufficient). In fact, when the summary judgment motions were filed in this action, a Frye hearing was requested to determine whether Respondent’s expert’s opinion had gained general acceptance in the relevant scientific community (R. 9). The motion Court did not grant the hearing because a determination regarding admissibility was made based on the governing effect of Fraser III and its ability to determine that the two new studies submitted by Respondent did not demonstrate the necessary general acceptance in the scientific community of her theory of general causation. Accordingly, when the Appellate Division determined that the motion Court erred as a matter of law by improperly relying upon Fraser III, the case should have been remanded back to it for a Frye hearing on the issue consistent with that finding (i.e., a Frye analysis exclusive of Fraser III). Instead, the Appellate Division conducted its own improper Frye analysis in order to deem the testimony admissible. Accordingly the motion Court’s decision dismissing Respondent’s personal injury claim on the grounds that she was unable to establish general or specific causation should be reinstated. 12 III. GENERAL AND SPECIFIC CAUSATION WERE NOT ESTABLISHED A. General Causation Despite overwhelming evidence to the contrary, Respondent denies that the Appellate Division modified the Frye standard in order to find her expert’s theory of general causation admissible. Ignoring Appellant’s arguments, Respondent maintains the Appellate Division properly conducted a Frye analysis and determined that evidence of an association between exposure to mold (in the manner in which Respondent was exposed) and adverse health effects (like those alleged by Respondent) was sufficient to admit Dr. Johanning’s theory of general causation. Respondent also argues in the alternative that her expert’s theory of general causation does not warrant a Frye analysis, and that public health guidelines, the devastation her injuries caused, the material issues of fact that exist (including the credibility of the experts) and the ruling of a New York City Civil Court Judge (in an action in which Appellant was not a party) warrant allowing her case to proceed to trial. In deeming Dr. Johanning’s theory of general causation admissible, the Appellate Division made two critical, albeit unmerited, findings in this action. One, that the Frye standard was satisfied by a mere showing of 13 “some support” in the record for Respondent’s theory of general causation. Two, that findings of a “significant” association are strong enough to constitute causation for purposes of tort litigation. In order to affirm the Appellate Division, this Court must change the well settled Frye standard that requires proof of “general acceptance” in the relevant scientific community to a lesser more lenient and less reliable requirement of “some support.” Next, this Court would have to bestow upon the judiciary the power to usurp the relevant scientific community and determine that an association equals causation when there is no evidence that such community generally accepts the finding. i. The Frye Standard Was Modified Respondent maintains the Appellate Division applied “the long existing standards of this and other Courts throughout New York” in an attempt to deny that they modified the Frye standard. However, Respondent cites to no legal authority supporting the Appellate Division’s finding that the Frye analysis requires a demonstration of “some support” rather than “general acceptance.” Furthermore, Respondent ignores the Appellate Division’s clear reliance on the concurring opinion in Marsh v. Smyth, 12 A.D.3d 307, 785 N.Y.S.2d 440 (1st Dept. 2004) in which Justice 14 David B. Saxe (one of the three Justices forming the majority decision in this action) clearly modified the Frye standard. As set forth in Appellant’s Brief, Justice Saxe adapted the Frye standard in Marsh “to the situation” at hand when the challenged expert theory was one of the mechanics of a physical injury that would “not prompt the profession generally to weigh in with its own studies or publications on the subject.” Id. at 312. He went on to opine that: “[t]he appropriate question for the court at such a hearing is the somewhat limited question [emphasis added] of whether the proffered expert opinion properly relates existing data, studies or literature to the plaintiff’s situation, or whether, instead, it is ‘connected to existing data only by the ipse dixit of the expert.” [citation omitted] Id. “The focus of the inquiry in such an instance should not be upon how widespread the theory’s acceptance is, but should instead consider whether a reasonable quantum of legitimate support exists in the literature for the expert’s views”… Id. “So the proper inquiry for the motion court here was, at most, simply to ensure that the expert opinions of Drs. Weintraub and Munoz relating to plaintiff’s situation found some support in existing data, studies or literature” [emphasis added]. Id. at 313. Compare the majority of the Appellate Division’s decision in this action in which they found that: “[t]he focus of the Frye inquiry ‘should not be upon how widespread [a] theory’s acceptance is, but should instead consider whether a reasonable quantum of legitimate support exists in the literature for 15 [an] expert’s views (Marsh v. Smyth, 12 AD3d 307, 312, 785 NYS2d 440 [2004, Saxe, J., concurring])” (3217-3218); and held that: “[s]ince plaintiff’s expert’s opinions relating plaintiff’s condition to the mold infestation find ‘some support in existing data, studies [and] literature,” (Marsh, 12 AD3d at 313), namely, studies that have found a statistically significant relationship between mold and various respiratory maladies, the Frye standard is satisfied” (R. 3218-3219). Accordingly, and Respondent’s protestations aside, there is no doubt that the Appellate Division modified the Frye standard and lowered the bar for admissibility of expert testimony. The only question remaining is whether the modification was justified under the facts of this case. As set forth in Appellant’s Brief, the Appellate Division provided no explanation for this modification and there are no grounds in this case for changing the standard. By ignoring the Appellate Division’s clear modification of the Frye standard, Respondent fails to provide any legal support to rebut Appellant’s argument. ii. Association vs. Causation Even assuming there was “some support” for Dr. Johanning’s opinion regarding general causation, the Appellate Division’s holding is still flawed in that the record is devoid of any scientific evidence to support his claim that Respondent’s mechanism of exposure to mold caused her injuries. 16 Instead, the “some support” relied on by the Appellate Division consists solely of studies documenting an association between her mechanism of exposure and alleged injuries, which neither the Appellate Division nor Respondent dispute. Indeed, aside from his proclamation, Dr. Johanning cannot demonstrate “general acceptance” or “some support” of his theory of general causation because the record contains no evidence that the relevant scientific community has established that Respondent’s mechanism of exposure is capable of causing her alleged injuries. Furthermore, neither the Appellate Division nor Respondent can cite to any authority establishing that the relevant scientific community accepts that an association of any degree equals causation.1 1 Respondent submits additional materials to this Court (contained in an unpaginated Addendum) that were not considered by the motion Court or Appellate Division. Appellant’s reference to materials in the Addendum will be made pursuant to the original page numbers of the respective document. Given that this Court, respectfully, is not one of first instance, these materials should be disregarded as they played no role in the determinations that have resulted in this appeal. To the extent the materials are considered, they are immaterial. Two of the documents are new studies that simply reinforce the existence of an association, not causation. By way of example, in “Rhinosinusitis and mold as risk factors for asthma symptoms in occupants of a water damaged building,” Indoor Air, 2012; 22: 396-404, it is noted at the outset that “mold exposure in damp buildings is associated with both nasal symptoms and asthma development…” (pg. 396). The focus of the study was to explore “the degree of risk for the progression of rhinosinusitis to asthma owing to mold exposures in damp buildings” an “unstudied” topic. (pg. 396). Furthermore, in “Respiratory Health Effects Associated with Restoration Work in Post-Hurricane Katrina New Orleans,” Journal of Environmental and Public Health, Vol. 2012, it is acknowledged from the beginning that “[e]xposures to microbial contaminants in agriculture, waste management, and in water- 17 Accordingly, in order to deem Dr. Johanning’s theory of general causation admissible, the Appellate Division held that a finding of “significant association” equals causation: “[t]he results in the studies relied on by plaintiff were found to be statistically significant, meaning the strength of the association was sufficient to conclude, within the range of probability, that exposure to mold caused the identified ill-health effects” [emphasis added] (R. 3229); and “[t]hese associations having been found sufficiently strong by the literature as to be indicative of a causal relationship, plaintiff’s evidence must be deemed to meet the Frye standard” [emphasis added] (R. 3229). Notably, the Appellate Division does not elaborate on the authority that allowed them to conclude that a “statistically significant association” is “sufficient to conclude…that exposure to mold caused” Respondent’s alleged symptoms. They do not cite to one study in the record supporting their conclusion because there is no evidence therein of general agreement (or any level of agreement) by the relevant scientific community that an association equals causation. Respectfully, whether or not causation is damaged and moldy buildings have been linked to various upper and lower respiratory illnesses and adverse effects…” (pg. 2). Whether the term association or its synonym linked is used, it is still not causation. The study examined the “prevalence of respiratory conditions in New Orleans-area restoration workers after Hurricane Katrina. The conclusion was that “[p]ost-Katrina restoration work is associated with moderate adverse effects on respiratory health, including sinusitis and toxic pneumonitis” (pg. 1). 18 capable of existing is a question for the relevant scientific community to determine and not the judiciary. Respondent also argues that there is no reason to draw a distinction between an association and causation because mold, microbiological contaminants and metals in general are harmful. Respondent’s logic is flawed as there is no evidence in the record that her mechanism of exposure can cause the adverse health effects for which she complains. Contrary to Respondent’s contentions, Appellant does not dispute that it is possible for mold to cause injury. Rather, Appellant disputes that Respondent’s alleged mechanism of exposure to mold (i.e., the way in which she was exposed) is capable of causing her injuries. As set forth in Appellant’s Brief, the evidence in the record clearly establishes that the relevant scientific community generally accepts that there are three mechanisms of exposure to mold that can result in injury: 1) response in allergic individuals (allergies/hypersensitivity pneumonitis); 2) direct infection by an organism; and 3) ingestion of myco-toxins in large doses from spoiled or contaminated food (food poisoning) (R. 2002; 2122, ¶65). Respondent does not dispute this or that her mechanism of exposure does not fall into any of these categories. She instead chooses to ignore the 19 distinction between the mechanisms of exposure and focuses solely on the not entirely accurate representation that mold is harmful. In doing this, Respondent fails to offer any legal or evidentiary support to counter Appellant’s contention that the Appellate Division overstepped its bounds by finding that an association between her mechanism of exposure to mold and alleged injuries equals causation when there is no evidence in the record that the relevant scientific community generally agrees. iii. Public Health Concern Does Not Support General Causation Respondent claims that because mold is a public health concern she is entitled to her day in court. The argument is irrelevant because, as set forth above and in Appellant’s Brief, it is generally accepted that there are three mechanisms of exposure to mold that can cause injury. Accordingly, it is of no surprise that mold is considered a public health concern. While perfectly logical, it is immaterial to Respondent’s claim that The Occupational Safety and Health Administration of the U.S. Department of Labor issues fact sheets discussing the dangers of mold during cleanup efforts following Hurricane Sandy, the New York City Department of Health requires the removal of mold, The Federal Emergency Management Agency addresses the issue of mold after a flood or the National Institute for Occupational 20 Safety and Health issues guidelines for preventing disease.2 By way of further example, The World Health Organization publication, “WHO Guidelines for Indoor Air Quality- Dampness and Mould” – 2009, upon which Respondent relies (and to the extent same is entertained by this Court)3 “there is insufficient evidence of a causal relationship with any of the health outcomes reviewed, although for asthma exacerbation we consider that there is almost enough evidence to meet the criteria of causality for dampness-related agents” (Addendum pg. 78). reinforces that while a public health concern exists: While “it is plausible that heavy exposure to indoor mould or other microbial agents plays a causal role, this has not been established conclusively” (Addendum pg. 78). “The epidemiological evidence is not sufficient to conclude causal relationships between indoor dampness or mould and any specific human health effect…” (Addendum pg. 89). 2 Appellant objects to this Court taking judicial notice of the OSHA FactSheets and NIOSH publication contained in Respondent’s Addendum. As set forth above in FN 1, these documents were not submitted to the courts below for consideration and were not utilized in the decisions resulting in this appeal. 3 The WHO Guidelines are contained within Respondent’s Addendum and Respondent represents the document was provided “to the Court below.” Appellant is unable to determine when this occurred or in what capacity as the underlying summary judgment papers were all authored in 2008 and the WHO Guidelines were published in 2009. Additionally, while the motion Court accepted additional argument papers in 2009 related to the summary judgment motions, there is no indication that the WHO Guidelines were submitted at that time. Finally, the WHO Guidelines were not part of the record on appeal submitted to the Appellate Division. Accordingly, to the extent Respondent can not confirm that the WHO Guidelines were submitted and part of the decisions resulting in this appeal, Appellant objects to this Court taking judicial notice of the publication. 21 “There is sufficient epidemiological evidence of associations between dampness or mould and asthma development, asthma exacerbation, current asthma, respiratory infections (except otitis media), upper respiratory tract symptoms, cough, wheeze and dyspnoea” (Addendum pg. 89). Furthermore, the motion Court in Fraser II, which the Appellate Division upheld in Fraser III, dismissed the argument that “an association that would be acted upon by public health officials and epidemiologists” is the equivalent of causation (R. 87-88). Likewise, this Court in Parker v. Mobil Oil Corporation, 7 N.Y.3d 434, 450, 824 N.Y.S.2d 584, 591 (2006) held that “standards promulgated by regulatory agencies as protective measures are inadequate to demonstrate legal causation.” Just because mold may be a public health concern as it can, under certain circumstances, cause injury, this does not abrogate Respondent of her burden to establish general acceptance of her theory of general causation. iv. The Decisions Relied Upon By Respondent Do Not Support General Causation Instead of focusing on the legal arguments germane to this appeal, Respondent spends an inordinate amount of time on the decision issued in the nonpayment summary proceeding brought by new building owner 360 West 51st Street Realty, LLC against Respondent in the Civil Court of the City of New York, County of New York (R. 2502-2513) that was upheld by 22 the Appellate Term, First Department (R. 2514-2515).4 Furthermore, there is no indication that 360 West 51st Street made a Frye challenge to exclude Respondent’s expert’s theory of general causation prior to or at the hearing in that case (R. 2502-2513). Notably, the Civil Court decision was rendered on August 16, 2005, over a year before the decision in Fraser I was issued, documenting the extensive Frye hearing that was held in that action (R. 59-79). Aside from the fact that the decision has no legal effect on Appellant as it was not a party, it has no relevance. Simply put, the decision cannot be used against Appellant as Respondent’s personal injury claim was not an issue presented for determination in that case, and Appellant had no opportunity to contest the issues and evidence before the Civil Court since it was not a party. Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 492 N.Y.S.2d 584 (1985). Respondent also argues that the Appellate Division’s decision is supported by other departments that are “rejecting efforts to deny a trial to plaintiffs alleging injuries due to exposure to contaminants.” However, Respondent clearly took significant creative license in interpreting the decisions she cited as none of them involved a Frye challenge to the 4 360 West 51st Street v. Brenda Cornell, Index No. 106494/03 (N.Y. Civ. Ct., Aug. 16, 2005) (Cavallo, E.). 23 proffered theory of general causation. Appellant has already addressed this issue with respect to the decision in Rashid v. Clinton Hill Apartments Owners Corp., 70 A.D.3d 1019, 895 N.Y.S.2d 524, (2nd Dept. 2010) in its Brief. As for the other cases cited by Respondent, in Cabral v. 570 West Realty, LLC, 73 A.D.3d 674, 675, 900 N.Y.S.2d 373, 374 (2nd Dept. 2010) the court clearly noted that: “[t]he expert did not opine that mold is incapable of causing asthma (general causation) and his affirmations do not address whether the scientific community generally accepts or rejects the theory that mold can cause asthma (cf. Parker v Mobil Oil Corp., 7 NY3d 434, 857 NE2d 1114, 824 NYS2d 584 [2006]; Fraser v 301-52 Townhouse Corp., 57 AD3d 416, 870 NYS2d 266 [2008]). Since this expert wholly failed to address the issue of general causation, the defendant failed to meet its prima facie burden on that element (see People v Mobil Oil Corp., 7 NY3d at 448)”]. Similarly, in Kurtz v. Chicorp Financial Services, 286 A.D.2d 753, 755, 731 N.Y.S.2d 187, 188 (2nd Dept. 2001), the issue was one of proximate cause not general causation given that the Second Department found that: “[t]he defendants failed to present any expert testimony to support their argument that the building modification was the proximate cause of the mold growth and the plaintiffs' injuries. Therefore, the denial of summary judgment was appropriate, as factual issues exist as to whether the modification was the proximate cause of the mold growth and the plaintiffs' injuries…” 24 Finally, Barbuto v. Winthrop University Hospital, 305 A.D.2d 623, 760 N.Y.S.2d 199 (2nd Dept 2003) and Lopez v. Gem Gravure Co., Inc., 50 A.D.3d 1102, 858 N.Y.S.2d 226 (2nd Dept. 2008) dealt with claims of medical malpractice and chemical exposure respectively, in which competing expert affidavits created triable issues of fact. No Frye analysis was done. In addition to the above, Respondent argues that there is case law supporting her claim that her theory of general causation is not “novel” and has been “consistently held not to warrant a Frye hearing.” Once again, Respondent takes creative license with her interpretations as none of the cases cited analyzed whether her theory of general causation is novel. For example, no Frye challenge is referenced as having been made in Daitch v. Naman, 25 A.D.3d 458, 807 N.Y.S.2d 95 (1st Dept. 2006) or Martin v. Chuck Hafner’s Farmers’ Market, 28 A.D.3d 1065, 814 N.Y.S.2d 442 (4th Dept. 2006), so the question of novelty was never reached.5 Respondent’s reliance is also misplaced on cases where the theory of general causation was not disputed. For example, in Jackson v. Nutmeg Technologies, Inc., 43 A.D.3d 599, 842 N.Y.S.2d 588 (3rd Dept. 2007) the 5 The inapplicability of the Daitch and Martin decisions are addressed at length in Appellant’s Brief. 25 Third Department noted that “[n]o dispute exists that plaintiffs were exposed to DEAE and that DEAE exposure is capable of causing illness.” Id. at 601. Similarly, in Nonnon v. City of New York, 32 A.D.3d 91, 819 N.Y.S.2d 705 (1st Dept. 2006) a Frye analysis was conducted, but the court noted that general causation was not at issue and that no argument was made that the theory was novel. “[T]he reports and findings of the expert epidemiologists and toxicologists satisfy the standard employed in Frye v United States (54 App DC 46, 293 F 1013 [DC Cir 1923]), that of general acceptance in the scientific community.” Id. at 92. However, the City was arguing against specific causation not general as noted by the Court, “the City's argument is not that the field is novel, but that plaintiffs' toxicological submissions fail to show causation because they do not give a specific dose-response relationship between the carcinogens in the landfill and plaintiffs' cancers.” Id. at 105. Then there is the matter of Sweeney v. Purcell Construction Corp., 20 A.D.3d 872, 873, 798 N.Y.S.2d 613, 614 (4th Dept. 2005) in which the court held that a Frye hearing was not necessary because the defendant challenged the general causation of an injury that plaintiff was not claiming: “the record establishes…that plaintiffs do not allege that they suffer from MCS. Rather, they allege that their exposure to the mold has caused them to suffer from occupationally-induced asthma. Supreme Court therefore properly determined that no Frye hearing was necessary (see Gayle v Port Auth. of N.Y. & N.J., 6 AD3d 183, 184, 775 NYS2d 2 [2004]) and refused to dismiss the complaint against defendants on the ground alleged, i.e., that MCS is not recognized in the medical or scientific community.” 26 Furthermore, Respondent cites to cases where a factual disagreement amongst experts existed, not a dispute regarding whether the theory of general causation was novel. See Gayle v. Port Authority of New York and New Jersey, 6 A.D.3d 183, 775 N.Y.S.2d 2 (1st Dept. 2004) and Lustenring v. AC&C, Inc., 13 A.D.3d 69, 786 N.Y.S.2d 20 (1st Dept. 2004). Additionally, neither case involved alleged personal injuries caused by exposure to mold. Another case cited by Respondent in support of her contention that her theory of general causation is not novel is Jazylo v. Leong, No. 05-2482, Slip Op. (N.Y. Sup. Ct., Ulster Co., May 25, 2007) (R. 2516-2524). In Jazylo, the defendant offered no expert evidence to support his Frye challenge of plaintiffs’ experts’ testimony and argued only that the Fraser III decision acted as a bar (R. 2519-2520). Since Fraser III cannot be utilized in this manner, the court properly noted that “there is no expert evidence indicating that plaintiffs’ claims of causation are based upon experimental or novel theories” (R. 2521). Accordingly, an analysis of whether the theory of general causation was novel never occurred because the challenge was insufficiently made by the defendant. 27 Finally, and contrary to Respondent’s contention, a Frye analysis was performed regarding the proffered theory of general causation in B.T.N. v. Auburn Enlarged City Sch. Dist., 45 A.D.3d 1339, 845 N.Y.S.2d 614 (4th Dept. 2007)(R. 2683-2684). Thus, there is no indication in either the lower Court’s or Fourth Department’s decisions that the plaintiff’s theory of general causation was novel (R. 2680-2684). v. The Alleged Existence Of Triable Issues Of Fact Does Not Support General Causation Respondent argues that numerous triable issues of fact, including the credibility of the experts, were ignored by the motion Court in granting summary judgment to Appellant with respect to her personal injury claim. The argument is flawed given that the Frye analysis does not include determining whether triable issues of fact exist. Respondent’s entire complaint was dismissed against Appellant on the ground that, as a matter of law, proximate cause did not exist. Respondent’s inability to establish general or specific causation with respect to her personal injury claim was an alternative ground for dismissing that portion of her complaint against Appellant. The motion Court did not ignore evidence and never ruled on the existence of triable issues of fact given the ruling on the Frye challenge. 28 Accordingly, the argument is immaterial with respect to the issue of admissibility of Respondent’s expert’s theory of general causation. B. Specific Causation Respondent argues that her expert’s finding of specific causation is admissible because this Court’s decision in Parker v. Mobil Oil Corporation, 7 N.Y.3d 434, 824 N.Y.S.2d 584 (2006) eliminates her need to provide any scientific expression of exposure because Dr. Johanning utilized the accepted methodology of differential diagnosis to rule out all other causes of her injury. In support, the Appellate Division and Respondent rely on this Court’s general finding in Parker that: “it is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship, provided that whatever methods an expert uses to establish causation are generally accepted in the scientific community.” Id. at 448. In other words, the Appellant Division and Respondent believe this finding provides a green light for the use of differential diagnosis alone, in lieu of any scientific expression of exposure, as sufficient proof of specific causation. From her Brief, it would appear that Respondent is relying exclusively on the Appellate Division’s interpretation of the above quoted general finding in Parker to support that Dr. Johanning’s use of differential 29 diagnosis was sufficient. However, Respondent ignores Appellant’s argument that Parker was misinterpreted by the Appellate Division given that this Court excluded the plaintiff’s experts’ finding of specific causation because their methodology lacked proof of exposure. Parker, supra. In Parker, the question was “whether the methodologies employed by Parker’s experts lead to a reliable result—specifically, whether they provided a reliable causation opinion without using a dose-response relationship and without quantifying Parker’s exposure.” Parker, supra at 447. This Court held that the methodologies were insufficient because “even given that an expert is not required to pinpoint exposure with complete precision” there must be some “scientific expression” of the plaintiff’s exposure to make the finding reliable. Id. at 449. Accordingly, the proper question in this case is not whether differential diagnosis is an acceptable method, but whether Dr. Johanning’s use of it produced a reliable finding despite the lack of evidence of exposure levels. As in Parker, Dr. Johanning’s methodology fails because he provides no scientific expression of Respondent’s exposure to any of the harmful contaminants in her apartment. Id. The practical effect of the Appellate Division’s ruling and Respondent’s theory of specific causation is that all she needs to show to get 30 her day in court is that a mixture of mold and other harmful substances existed in her apartment and that she was exposed to mold even though it is ubiquitous. Such a ruling eliminates the requirement that Respondent present evidence to demonstrate she was exposed to enough of any substance to cause her injuries. In other words, Respondent will not be required to present evidence to: 1) identify the mold or other harmful substance that caused her alleged injuries; 2) establish the level at which that mold/substance is capable of causing her alleged injury; or 3) demonstrate that her level of exposure was sufficient to have caused her alleged injuries. Additionally, by focusing on the overall general acceptance of the methodology of differential diagnosis, Respondent fails to explain how Dr. Johanning was able to reliably “rule in” any of the alleged hazardous substances that were found in her apartment as the cause of her injuries, which is a necessary component. Respondent and Dr. Johanning do not dispute the lack of studies establishing the level of exposure at which the substances in her apartment will cause injury. Instead, Respondent wants this Court to believe that evidence expressing her level of exposure is unnecessary because differential diagnosis “ruled out” all other possible causes of her injuries. However, ruling out causes is but one aspect of 31 properly applying the differential diagnosis methodology. The other component is “ruling in” the offending substance and that is where Dr. Johanning’s opinion is lacking. Dr. Johanning fails to provide any scientific expression of exposure that would allow him to reliably determine that Respondent was exposed to an amount of mold or other contaminant at a level sufficient to have caused her injuries. See the following cases that are instructive regarding the proper utilization of the differential diagnosis methodology, Jazairi v. Royal Oaks Apt. Assocs., L.P., 2005 U.S. Dist. LEXIS 47915, 31 (S.D. Ga., 2005) aff’d at 217 Fed. Appx. 895 (11th Cir., 2007); Roche v. Lincoln Prop. Co., 278 F. Supp. 2d 744, 752-753 (E.D. Va., 2003) aff’d at 2006 U.S. App. LEXIS 8588 (4th Cir., 2006); and Cavallo v. Star Enterprise, 892 F.Supp. 756, 771 (E.D. Va., 1995) rev’d in part on other grounds at 100 F.3d 1150 (4th Cir. 1996). The Appellate Division held that Dr. Johanning’s specific causation finding was reliable because there was evidence that the toxic condition complained of existed in Respondent’s apartment and IgG tests demonstrated that she had, at some point, been exposed to some of those 32 alleged substances.6 6 The motion Court held that “[t]o the extent that plaintiff alleges that her illnesses were the result of heavy metals in her apartment, the complaint is also without merit. While plaintiff offers evidence that tests in her apartment revealed the presence of various metals as well as mold, Dr. Johanning does not opine, and plaintiff does not offer any other evidence, that the metals can or did cause her alleged illnesses. Nor does plaintiff submit any blood tests evidencing her exposure to metals” (R. 21). Neither Respondent nor the Appellate Division explains how these findings establish that she was exposed to any of the alleged contaminants at a level sufficient to have caused her adverse health effects. While Respondent does not acknowledge it in her Brief, Dr. Johanning maintains that an exposure standard is not necessary because it “is simply no longer applicable” and “studies have now shown that the clear effects on people’s health from exposure to dampness and other unsanitary and unhealthy indoor conditions makes the significance of precise quantifiable measures irrelevant” (R. 2497). The motion Court, however, properly noted that Dr. Johanning failed “to cite specific findings in any scientific literature” to demonstrate that the scientific community agreed with his proclamation (R. 18). Indeed, the record provides no evidence that the relevant scientific community has ruled out the importance of dose- response evidence. Instead, it supports that science has not yet established threshold levels at which the substances Respondent allege made her ill cause injury. 33 Finally, Respondent claims that Dr. Johanning’s methodology has survived “evidentiary challenges, and has been validated and affirmed by a number of courts around the country” (Respondent Brief, pg. 34-35). However, four out of the six cases cited by Respondent do not appear to have even involved the argument that his use of differential diagnosis was flawed because it lacked a scientific expression of exposure. See New Haverford P’ship v. Stroot, 772 A.2d 792, 2001 Del. LEXIS 201 (Del. 2001); Stevens v. Fennessy, No. 96-0403 (Mass. Super. June 19, 2002); Brandt v. Rokeby Realty Co., 2006 Del. Super. LEXIS 280 (Del. Super. July 7, 2006) and Morris v. New Property Associates, No. 05-9313, Slip Op. (N.Y. Sup. Ct., Westchester Co., Aug. 20, 2007) (R.2577-2684). The remaining two cases cited by Respondent, B.T.N. v. Auburn Enlarged City Sch. Dist., 45 A.D.3d 1339, 845 N.Y.S.2d 614 (4th Dept. 2007) (R.2680-2684) and Ferguson v. Riverside Sch. Dist. Number 416, No. CS-00-0097-FVS (E.D. Wash., Feb. 5, 2002) (R. 2595-2616) do appear to include specific challenges to Dr. Johanning’s failure to provide any evidence of exposure levels. However, in B.T.N. the Fourth Department relied solely on this Court’s general finding in Parker that it will not always be necessary to “precisely quantify exposure levels” (R. 2684, B.T.N., supra 34 at 1339). To the extent the Fourth Department relied solely on the Parker decision as an automatic sanction of plaintiff’s failure to provide a scientific expression of exposure, it was error. Additionally, in Ferguson the United States District Court for the Eastern District of Washington noted that the defendants challenging the admissibility of Dr. Johanning’s expert testimony failed to introduce “any evidence of their own that [his] methodology [was] not scientifically valid” (R. 2607, Ferguson, supra at 19). Thus, it does not appear the defendants properly challenged the sufficiency of Dr. Johanning’s specific causation finding. While Respondent’s reliance on the above case law does little to shed light on the issue of specific causation, Appellant respectfully requests that the Court compare same to Jazairi v. Royal Oaks Apt. Assocs., L.P., 2005 U.S. Dist. LEXIS 47915 (S.D. Ga., 2005) aff’d at 217 Fed. Appx. 895 (11th Cir., 2007); Roche v. Lincoln Prop. Co., 278 F. Supp. 2d 744 (E.D. Va., 2003) aff’d at 2006 U.S. App. LEXIS 8588 (4th Cir., 2006) and Cavallo v. Star Enterprise, 892 F.Supp. 756 (E.D. Va., 1995) rev’d in part on other grounds at 100 F.3d 1150 (4th Cir. 1996), which are instructive and persuasive regarding whether the use of differential diagnosis alone in lieu of any scientific expression of exposure produces a reliable specific 35 causation finding, and appear to parallel this Court’s reasoning in Parker, supra. In Jazairi, supra, Dr. Johanning’s use of differential diagnosis in a mold based personal injury case was rejected by The United States District Court for the Southern District of Georgia, Savannah Division. The District Court held that “other objective evidence must be produced to demonstrate causation” when Dr. Johanning relied solely on differential diagnosis and failed to provide any exposure levels. Jazairi, supra at 36-37. As in this action, Dr. Johanning’s finding of specific causation in Jazairi failed because he provided no scientific expression of exposure that would allow him to “adequately rule in the specific molds contained in Jazairi’s apartment in order to support his differential diagnosis.” Id. at 37. Indeed, Dr. Johanning failed to identify “what species, or what percentage of the species, associated with those mold genera are capable of causing” the alleged injuries. Id. Similarly, in Roche, supra the District Court for the Eastern District of Virginia, Alexandria Division, rejected the use of differential diagnosis because it was not properly utilized. The District Court held that the expert’s use of differential diagnosis was flawed because he failed to rule in 36 the molds alleged to have caused the injuries. Roche, supra at 751. The expert failed to properly rule in the molds, in part, because he had no “knowledge of the levels required for these various molds to become toxic or of the levels required for the molds to affect the [plaintiffs].” Id. at 752. The use of differential diagnosis without establishing “a link between a particular level of exposure” and the alleged injuries constitutes “a leap of faith” and results in the conclusion “that because general causation exists, then specific causation must also exist, without regard to the levels of exposure.” Id. at 761. Finally, the United States District Court for the Eastern District of Virginia, Alexandria Division in Cavallo, supra rejected the use of differential diagnosis when the only evidence regarding exposure was expert testimony that plaintiff sustained a “massive exposure.” Cavallo, supra at 772. As in this case, the expert was unable to cite to any study that set forth a level of exposure at which an adverse health effect would occur. Id. The District Court noted that the plaintiff’s experts’ opinions may one day “be validated through scientific research and experiment…but the published scientific literature and test results simply do not support that conclusion at this time.” Id. at 773. 37 C. Conclusion In Parker, this Court reiterates the well known function of the judiciary as gatekeeper in order to prevent a jury from hearing testimony improperly weighted by a “credentialed expert.” Parker, supra at 447. This function includes performing a Frye analysis in order to determine if there is sufficient evidence to demonstrate general acceptance within the scientific community of a proffered theory of general causation. It also involves determining if the methodologies utilized to arrive at a finding of specific causation are reliable. It is understandable that this Court does not want “to set an insurmountable standard that would effectively deprive toxic tort plaintiffs of their day in court.” Id. However, when there is no evidence in the record that Respondent’s expert’s theory of general causation meets the Frye standard or that his specific causation finding is reliable, the Court must act as gatekeeper and exclude the expert’s testimony. Furthermore, this Court must be cognizant of the idea that science may not have evolved to a point whereby it provides evidence to support Respondent’s claims. In such a situation, the goal should not be to lower well set standards of admissibility in order to make up for what is lacking in 38 science just so a plaintiff can have her day in court. Indeed, that would negate the function of the judiciary as gatekeeper. In light of the above, Respondent has failed to rebut Appellant’s arguments that the Appellate Division improperly: 1) modified the Frye standard; 2) determined that an association equals causation and 3) relied on this Court’s general finding in Parker v. Mobil Oil Corporation, 7 N.Y.3d 434, 824 N.Y.S.2d 584 (2006) in order to admit Dr. Johanning’s theory of general causation and finding of specific causation. Accordingly, the motion Court’s decision granting summary judgment and dismissing Respondent’s personal injury action on these grounds should be reinstated. IV. RESPONDENT’S SECOND THROUGH FIFTH CAUSES OF ACTION WERE IMPROPERLY REINSTATED In its Brief, Appellant fully addressed the reasons why Respondent’s second through fifth causes of action were improperly or inadvertently reinstated by the Appellate Division when it reversed the motion Court’s decision in its entirety. It does not appear from Respondent’s Brief that she contests dismissal of her duplicative second and fourth causes of action for general constructive eviction and breach of the covenant of quiet enjoyment; or her third cause of action for attorneys fees as she does not, in her Brief, claim that they are valid. 39 However, Respondent argues that her fifth cause of action for intentional or reckless infliction of emotional distress (for which she seeks punitive damages) was properly reinstated since Appellant apparently knew there was mold in the basement. Regardless of the fact that Respondent’s injuries were not caused by any mold existing in the basement, the argument is illogical because it ignores the requirements needed to establish such claim. Indeed, Respondent offers no evidence that 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 because there is no such evidence. 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). Even assuming that Appellant did not discover or eradicate all the mold existing in the basement, Respondent fails to explain how that translates to the outrageous conduct, wanton and/or reckless acts, demonstrated dishonesty or criminal indifference needed to withstand summary judgment on this claim. As set forth in Appellant’s Brief, alleging a claim without more is insufficient to defeat summary judgment. Accordingly, the motion Court's decision granting summary judgment and dismissing the second through fifth causes of action against Appellant must be reinstated. CONCLUSION Based on the foregoing, Appellant respectfully requests that this Court reinstate the motion Court's decision granting Appellant summary judgment and dismissing Respondent's complaint in its entirety. Dated: New York, New York August 12, 2013 BONNER KIERNAN TREBACH & CROCIAT A, LLP By: 40 A The Appellate Experts 460 WEST 34TH STREET, NEW YORK, NEW YORK 10001 (212) 685-9800; (716) 852-9800; (800) 4-APPEAL www.counselpress.com (247585)