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The Rogak Report: 31 Oct 2008 (Part III) ** Multiple Chemical Sensitivity **

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  • insurancelawyer
    Message 1 of 1 , Oct 31, 2008


      O'Brien v. Citizens Ins. Co. of Am.
      2008 NY Slip Op 52160(U)
      Decided on October 27, 2008
      Supreme Court, Suffolk County
      Mayer, J.
      Edited by Lawrence N. Rogak

      This court decision follows a "Frye hearing" to determine whether the plaintiffs would be permitted to put an expert witness on the stand to testify as to their claims that the negligence of the defendants caused them to develop "Multiple Chemical Sensitivity" syndrome (MCS).   The Court found a lack of scientific basis for MCS and thus precluded the expert testimony.

      "This is an action for personal injury and property damage based on alleged faulty remediation work following a clothes dryer fire in plaintiffs' home on August 10, 2002. In its decision dated August 6, 2007, the Court granted a Frye hearing, in accordance with Frye v United States, 54 App DC 46, 293 F 1013 [1923], to determine the admissibility of expert testimony for purposes of plaintiff's attempt to show that the plaintiffs suffer from a condition known as Multiple Chemical Sensitivity."

      "In New York, evidence based on novel scientific theories or techniques is considered admissible only upon a showing of general acceptance within the relevant scientific community (People v Carrieri, 49 AD3d 660, 854 NYS2d 427 [2d Dept 2008]; Parker v Mobil Oil Corp., 7 NY3d 434, 824 NYS2d 584 [2006]; Del Maestro v Grecco, 16 AD3d 364, 791 NYS2d 139 [2d Dept 2005]). To prove causation under New York law, a plaintiff may refer to court opinions, texts, laboratory standards or scholarly articles in an effort to determine whether a particular concept has been generally accepted by the relevant scientific community and, absent such materials, the court may take testimony of expert witnesses (People v Wesley, 83 NY2d 417, 611 NYS2d 97 [1994]; see also, Demeyer v Advantage Auto, 9 Misc 3d 306, 797 NYS2d 743 [Sup Ct, Wayne County 2005])."

      "Once a party has made a prima facie showing that the proposed expert opinion is not reliable or not generally accepted, the burden shifts to the proponent to demonstrate the general reliability and acceptance in the relevant scientific community (Zaslowsky v J.M. Dennis Constr. Co. Corp., 26 AD3d 372, 810 NYS2d 484 [2d Dept 2006]; Lewin v County of Suffolk, 18 AD3d 621, 795 NYS2d 659 [2d Dept 2005])."

      "Under the Frye standard, the burden of proving general acceptance rests upon the party offering disputed expert testimony (Cumberbatch v Blanchette, 35 AD3d 341, 825 NYS2d 744 [2d Dept 2006]; Zito v Zabarsky, 28 AD3d 42, 812 NYS2d 535 [2d Dept 2006]). Absent proof in the form of controlled studies, clinical data, medical literature, or peer review indicating the expert's conclusions are generally accepted in the relevant scientific community, the opinions/conclusions must be omitted (see, Cumberpatch v Blanchette, supra ). Accordingly, courts are charged with the responsibility to ensure that testimony meets minimum standards of reliability (see, e.g., Zito v Zabarsky, supra ; Pauling v Orenreich Medical Group, 14 AD3d 357, 787 NYS2d 311 [1st Dept 1995])."

      "In this matter, the plaintiffs allege a small dryer fire occurred within the residence on August 10, 2002. The plaintiffs notified Citizen's Insurance, their homeowner's liability carrier, who in turn retained the defendant Wall to do the remediation. They began on August 13, 2002 by cleaning the walls, ceilings, and other items that might retain smoke odor. This process lasted two to three days utilizing various degreasers, furniture polish and window cleaners. Immediately following the clean-up, Mr. and Mrs. O'Brien walked through the home and noticed an irritating smell. The defendant A. Wall, through their representative Jim Cavo and defendant Citizens' Insurance through their representative John Conlon brought in two ozone generators that ran for approximately four days to alleviate the odor."

      "The plaintiffs were not present during these four days. Mrs. O'Brien again entered after the four day period and noticed the smell was 'different and worse.' She described feeling dizzy and she complained 'knives were shooting up my nose.' Mr. O'Brien felt the same 'knives' and was nauseous. After a third time through, both Mr. and Mrs. O'Brien felt the 'knives in the nose again, headaches, nausea, difficulty breathing.' Mr. O'Brien allegedly came to the front lawn and threw up."

      "Mrs. O'Brien testified she sought the services of Dr. Hertz concerning this incident as she was experiencing headaches, fatigue and nausea. Dr. Hertz, according to Mrs. O'Brien, prescribed xanax and zoloft as he diagnosed her as suffering from depression. Notably, the plaintiff submits no medical records of any of the treatment rendered to Mrs. O'Brien or any other plaintiff by Dr. Hertz. The record establishes that he was the first medical professional from whom she sought treatment closest in time to the alleged triggering incident of the fire remediation. She continued treatment with Dr. Hertz for approximately 8 months until meeting and seeking treatment from Dr. Boris, the expert and treating physician relied on by the plaintiff herein. At the time of her Examination Before Trial, she had seen Dr. Boris approximately 20 times, having first seen him in June of 2003. She complained of fatigue, headaches, dry and running eyes, chest pains, nausea, brain fogginess, memory loss and insomnia. Although she testified that Dr. Boris did many tests, including blood tests, none of those are before the Court concerning Mrs. O'Brien, her husband or children."

      "The proof tendered also reveals that Delora O'Brien was admitted to Good Samaritan Hospital from December 7th to December 13th, 2002 based on her complaints of abdominal pain. During this period, a series of tests were performed which, according to Delora O'Brien, were 'negative.' She was also hospitalized in the Fall of 2002 for 'chest pains' and 'nausea.' On both occasions, according to plaintiff's EBT testimony, the diagnosis was stress. The hospital records have not been submitted. The plaintiff has not, in the pleadings or during the Frye Hearing, proffered any of the medical records dealing with diagnosis, prognosis, and treatment concerning either Delora O'Brien, her husband, Dennis O'Brien or their children, Jenna, Elissa, or Dennis Jr."

      "Dr. Boris, in his affidavit states that he has treated Delora O'Brien, Dennis O'Brien and "their children" since June 2003 and that their condition consists of MCS as the O'Briens present with the necessary criteria for such diagnosis. There is no opinion offered as to causation of this diagnosis. Delora O'Brien testified that her daughter Elissa was never treated by Dr. Boris. There is no reference by Dr. Boris in his affidavit or in his testimony of any medical records, lab tests or physical exams that he conducted or reviewed that aided in his diagnosis and treatment."

      "The record for purposes of determining this question consists of an affidavit from Marvin Boris, M.D., an expert and treating physician employed by plaintiffs, an affidavit from William Head, M.D., an expert employed by the defendants. Dr. Boris also testified at a court ordered Frye Hearing that took place on January 11, 2008. Howard Sandler, M.D. an expert employed by the defendant, also testified at the Frye Hearing. There was documentary evidence submitted by both sides during the Frye Hearing. The plaintiff has submitted the Curriculum Vitae of Dr. Marvin Boris, a U.S. Department of Heath and Human Services Book entitled MCS - a Scientific Overview. The Directory (membership) of the American Academy of Environmental Medicine, a case entitled Creamer v Callahan, 981 F Supp 703 [D Mass 1997], ATSDR reports of February 2003, ATSDR Reports of 1994, National Institute of Environmental Health Sciences Report on Multiple Chemical Sensitivities dated July 24, 2006, Archives of Environmental Health 1999, and Merck Manual article on Multiple Chemical Sensitivity dated September 10, 2007."

      "The defendants have submitted a study on Idiopathic Environmental Intolerance taken from edition of Toxicology Review in 2003, a pre-decisional draft of a study done by the inter-agency work group on MCS, a reference list, and a case entitled Beals v Sicpa Securink Corp., an Order from the US District Court of the District of Columbia. The Court has also considered the proof contained in the motions seeking summary judgment, and the opposition thereto."

      "In the affidavit and during the Frye Hearing plaintiffs' expert placed before the Court, the National Institute of Environmental Health Sciences, a Division of the National Institute of Health, July 2006 article on MCS. From this publication we learn that the proper name for MCS is Idiopathic Environmental Intolerance (hereinafter IEI) which is defined as a 'chronic, recurring disease caused by a person's inability to tolerate an environmental chemical or class of foreign chemicals. IEI thus represents a complex gene-environment interaction, the true cause of which is unknown.'"

      "The publication discloses that research conducted through the Human Genome Project has discovered that humans have a "superfamily of approximately 1000 odorant receptor (OR) genes and that each OR gene is expressed in approximately 1 per 1000 olfactory epithelial neurons (hereinafter OE) and that polymorphisms in many of these genes have been reported. In lay terms, different people have different abilities to sense smells. This implies "'interindividual variation in olfactory responses and perhaps to diseases triggered by olfactory stimuli.'"

      "Vasomotor Rhinitis (hereinafter VMR), known to us as a runny nose, is one of the symptoms associated with environmental disease. Non-allergic rhinitis is an organ specific disorder of unknown etiology aggravated by strange chemical smells and weather changes. The conclusion of the publication opines as to whether non-allergic VMR might be a sufficient end point such that it could be examined in a phenotype-genotype associated study to determine whether polymorphisms in particular functional OR genes are responsible for non-allergic VMR, and thus might be used in attempting to dissect IEI, sick-building syndrome (hereinafter SBS), food intolerance syndrome (hereinafter FIS) and Gulf War Illness (GWI)."

      "The publication relied on by plaintiff, while reciting six criteria to show a patient has IEI, clearly states that its general causation is unknown and that further specific studies such as those outlined above would aid in considering this question. The Court has no evidence as to the conclusions of these studies, or, indeed, if they were ever conducted. The publication also suggests that discovery of the etiology is made more difficult 'because the syndrome is similar to certain allergic conditions and to certain organ-system responses caused by emotional disturbances' and that 'disagreement among physicians and medical researchers as to what IEI really is has made research funding difficult.' Differing scientists pose the question as to whether this is really a syndrome, a mental problem, or a simple allergy."

      "Complicating this matter is the allegation by plaintiff that they were effectively precluded from conducting relevant tests on the plaintiffs because of the wilful and persistent discovery violations by the defendant Wall who never revealed, despite the demand for same, the chemical constituents of the cleaning materials they used. Moreover, the plaintiffs alleged that the defendant Wall never disclosed that they had subcontracted their work at the plaintiffs' home until they commenced a third-party action in April of 2006."

      "The above complaints notwithstanding, the plaintiffs have had certain information at their disposal. It is known that ozone generators were used for approximately four days. The plaintiffs' kitchen was equipped with a gas stove fed from self-contained propane tanks stored outside. The material safety data sheet (hereinafter MSDS) contained in the pleadings on ozone reflects that over-exposure can cause 'coughing, headaches, loss of appetite, drowsiness, inflammation of the upper respiratory tract.' There is evidence in the pleadings that ozone generation is incompatible with propane and could contribute to the presence of formaldehyde, a known respiratory irritant. The first report from H2M dated September 3, 2002 showed the presence of volatile organic compounds (hereinafter VOC) including but not limited to toluene and benzene. Deposition testimony of Gary Alexander and Jim Cavo of the defendant Wall establishes that certain degreasers were used which are contraindicated in the presence of ozone generators."

      "The plaintiffs' expert offers no proof that connects any of the substances that were known to be present as having the chemical properties that could generally cause MCS or IEI. And although not necessarily required, the plaintiffs have provided no information regarding the amount of any of the above substances required to cause the O'Briens' illness and have failed to quantify the exposures of any of the plaintiffs."

      "In further support, the plaintiffs offer a book entitled 'Multiple Chemical Sensitivity, a Scientific Overview,' published by the U.S. Department of Health and Human Services, copyright 1995. This evidence is a compilation of studies resulting from three meetings of the agency for toxic substances and disease registry (hereinafter ATSDR). These meetings were held in March and September 1991 and in April of 1994. The introduction of the U.S. Department of Health publication states 'the diagnostic label of MCS is being applied increasingly, although definition of the phenomenon is elusive and its pathogenesis as a distinct entity is not confirmed. MCS has become more widely known and increasingly controversial as more patients have received the label.'"

      "Thus, the introducing statement is not supportive of the principle that there is a general consensus within the relevant scientific community of MCS or IEI as of the date of this publication."

      "The plaintiff also tendered an ATSDR report that contains minutes of their annual meeting dated January 3, 2008. The entry concerning MCS noted that ATSDR was reporting that MCS was being used increasingly as a diagnosis of patients with a variety of symptoms. There is no data contained in the document supporting this conclusion. There is no information contained in the document as to what the reported symptoms were. There is no listing of the sources of the information. This is an opinion based on non-identified sources and, therefore, is entitled to little or no weight."

      "[Also offered as] evidence is a press release from the Archives of Environmental Health entitled 'MCS: a 1999 Consensus.' The article lists six criteria to be used in diagnosing MCS. They are:"

      "1)symptoms are reproducible with repeated exposure;

      "2)condition is chronic;

      "3)low levels of exposure result in manifestation of the syndrome;

      "4)symptoms improve or resolve when the incidants are removed;

      "5)responses occur to multiple chemical unrelated substances;

      "6)symptoms involve multiple organ symptoms."

      "This 'consensus' was signed by 34 medical researchers and clinicians in the United States and Canada. The studies referred to in the press release to determine prevalence of the symptoms were conducted by telephone or questionnaire and no studies or commentary are contained in the release dealing with etiology. There is no reference to any controlled lab studies confirming their conclusions."

      "Defendant's exhibit 'A' is a study from Toxicological Review entitled 'Idiopathic Environmental Intolerance' (IEI) dated 2003. The publication concerns causation analysis applying Bradford Hill's (after Sir Bradford Hill who authored Causation Analysis Criteria for Studying the Correlation of the Environment to Disease) criteria and concludes that the toxicogenic theory of MCS (IEI) fails to meet any of Hill's nine criteria for determining causation."

      "The evidence further demonstrates that the theory proffered by the plaintiff on the subject of MCS (IEI) has not been accepted by the American Academy of Allergy, Asthma and Immunology, the American College of Occupational and Environmental Medicine, the American Medical Association, the American College of Physicians, the Royal College of Physicians, the International Society of Regulatory, Toxicology and Pharmacology. The American Academy of Clinical Toxicology has endorsed the position statement of the American College of Occupational and Environmental Medicine. During Dr. Boris' cross-examination, he was asked as to whether he was aware of the American Medical Association's rejection of MCS (IEI) as an organic disease. His answer was 'earlier.' This question was followed up by a series of questions asking whether MCS (IEI) had been rejected as an established organic disease by the California Medical Association, the American College of Physicians and the American Medical Association's Council on Scientific Affairs. His response to each of these questions was that these organizations rejected MCS (IEI) as an organic disease earlier in time. Upon inquiry from the Court, Dr. Boris was unaware if the AMA issued any study that recognized MCS (IEI) as a diagnosis. The plaintiff never proved that any of these organizations presently recognize MCS (IEI). Therefore, the state of the record is that none of these organizations recognize MCS (IEI) as an organic disease."

      "There is nothing in the record that identifies a diagnostic test for MCS (IEI), nor are there any studies submitted which identify a mechanism or cause for MCS (IEI). Dr. Boris acknowledged in his testimony that there is indeed general disagreement among researchers and physicians about the etiology of MCS (IEI). There is no evidence submitted to establish a causal relationship between any of the chemicals that are known to have been utilized during the remediation process at the O'Brien home and MCS (IEI). The Court concludes therefore that there is insufficient evidence to show general causation."

      "Federal and State Courts have consistently determined that the cause or causes of MCS (IEI) cannot be reliably established by scientific proof (see, e.g., Oppenheimer v United Charities of NY, 266 AD2d 116, 698 NYS2d 144 [1st Dept 1999]; Frank v State of New York, 972 F Supp 130 [ND NY 1997]). The Court finds the defendants have made a prima facie showing that the proposed expert opinion is not reliable. This finding is based on the documentary and testimonial evidence. The Court further finds that the plaintiffs have not met their burden as the proponent of evidence to demonstrate the general reliability and acceptance of the proposed testimony (Cumberbatch v Blanchette, 35 AD3d 341, 825 NYS2d 744 [2d Dept 2006])."

      "There is also no proof beyond the conclusion in the affidavit of the expert as to specific causation. Based on the foregoing, the plaintiffs are precluded from offering expert testimony at trial in support of the theory of MCS."

      Larry Rogak

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