Toxic Mold Litigation and Mold Exposure Lawsuits in New Jersey and New York
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Proof Issues in Mold Exposure Litigation in New Jersey and New York

Exposure to mold and the physical effects resulting from such exposure has always been an extraordinarily difficult condition to assess for many medical professions.  A large reason for this issue stems from the fact that mold is ubiquitous, and exposure to differing types and quantities of mold spores affects each person differently with possible injuries varying widely.  One person’s exposure to certain quantities of the stachybotrys mycotoxins spore, for instance, may render nothing more than a runny nose, whereas another person’s identical exposure may render them bedridden with major or even potentially fatal respiratory conditions if not timely treated.  One explanation for the disparity is whether or not the affected person possesses a genetic hypersensitivity to microbes typically found in wet and damp environments.

In New York, persons exposed to toxic mold had increased difficulty bringing successful cases due to the lack of scientific consensus regarding causation.  New York courts require that a theory regarding causation of a personal injury, such as mold exposure causing certain physical symptoms, be generally recognized by the scientific or medical community.  See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).  In New Jersey, on the other hand, a causation theory “may be found to be scientifically reliable if it is based on a sound, adequately founded scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field.”  Rubanick v. Witco Chem. Corp., 125 N.J. 421 (1991); Landrigan v. Celotex Corp., 127 N.J. 404 (1992).

New Jersey’s standards for admissibility, widely believed to be less demanding, has provided injured parties in New Jersey with greater leeway in presenting expert testimony regarding toxic mold causation than may be the case in other states.  As such, New Jersey courts have been more permissive in admitting expert testimony concerning toxic mold exposure, even when where such testimony lacks details regarding the level of dampness or mold.  See e.g., Smith v. Northridge at Edison, No. A-2482-07T1 (N.J. App. Div. Oct. 6, 2009). New York’s high threshold for admissibility, meanwhile, has excluded such expert testimony due to the uncertainty of the effects of mold exposure.  Thus, New York courts have required evidence of specific causation exactly detailing the level of dampness or mold sufficient to cause the alleged injuries.  See Fraser v. 301-52 Townhouse Corp., 870 N.Y.S.2d 266 (N.Y. App. Div. 2008).

In recent years, there has been increasing recognition by the scientific community concerning the nature and extent of the harm caused by toxic mold exposure.  As such, courts in many jurisdictions have begun according more weight to expert testimony regarding causation of alleged injuries in toxic mold lawsuits.  In March 2012, the New York Appellate Division found that it was undisputed that exposure to damp buildings with excessive and atypical mold contamination was a recognized cause of respiratory health complaints and conditions such as asthma, rhinosinutis, bronchitis, allergies, infections and skin and mucous membrane irritation.  See Cornell v. 360 West 51st Street Realty, LLC, 939 N.Y.S.2d 434 (N.Y. App. Div. 2012). Specifically, the Court clarified prior, contrary New York decisions by indicating that an expert’s use of a differential diagnosis–a methodology used by physicians in assessing causation and diagnosing illness–was now a sufficient and scientifically sound method for establishing the requisite causation. The decision was further recognition of the fact that injured parties do not need to precisely quantify exposure levels, but must use a methodology establishing causation that is generally accepted in the scientific community. See B.T.N. v. Auburn Enlarged City School District, 845 N.Y.S.2d 614 (N.Y. App. Div. 2007).

New York and New Jersey’s growing acceptance of mold related expert testimony mirrors the growing recognition of the fact that mold exposure is harmful and needs to be taken seriously as a highly injurious toxin. In the event that there is an unabated water source in your home or workplace that consistently feeds the damp environment necessary for mold growth, specific remedial steps may need to be taken by you, your landlord, your homeowners/condominium association or employer to adequately prevent the growth and/or re-occurrence of toxic mold.  It may be the case that bleaching or treating certain mold growths with over-the-counter chemicals is insufficient, and that trained remediation professionals must be employed to ensure the source of the moisture is adequately addressed without further harm.

In light of the recent tragedies wrought by Hurricane Sandy, many communities in New York and New Jersey may begin experiencing growth of mold in homes and workplaces due to the heavy damage caused to buildings. Causes of mold can be overlooked by the general public as seemingly benign.  Also, these causes are often hidden, such as condensation or leaks from plumbing, air conditioning, windows, or roofs.  If you are concerned about your exposure to mold, you should contact a mold remediation specialist and discuss any health issues or symptoms with your physician or allergist immediately.

Lieberman & Blecher is an environmental law firm with offices in New Jersey and New York and has an abundance of experience in handling toxic mold exposure claims.  If you have experienced injury from toxic mold exposure and have questions or concerns about your legal rights, please do not hesitate to contact our office to speak with one of our attorneys.  We will gladly assist you in any way we can.

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Toxic Mold Litigation and Mold Exposure Lawsuits in New Jersey and New York