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A win for plaintiffs in a mold case (NY Supreme Court)

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  • Andrew Cutz
    JUST for your information and reference... Andrew Cutz Andrew Cutz, CIH, AIHA Fellow ... List | http://health.groups.yahoo.com/group/globalocchyg-list/ (on
    Message 1 of 1 , May 14, 2014
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      JUST for your information and reference...

      Andrew Cutz

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      FOR YOUR INFORMATION.
      ..

      From: Cheryl Wisecup <cw7790@...>
      To: Cheryl Wiscup <cw7790@...>
      Subject: A win for plaintiffs in a mold case (NY Supreme Court)
      Date: Tue, 13 May 2014 15:39:38 -0700


      The New York Supreme Court ruled in favor of plaintiffs in a mold case.  The Court does an excellent job of discussing the facts and the literature in a mold case. 

      Here are a few excerpts, but be sure to read the entire ruling.

      As a preliminary matter, the article An Approach to the Diagnosis of Acute Transverse Myelitis, submitted by plaintiffs, expressly identifies Aspergillus as a fungal "infectious agent" that causes acute myelopathies such as Keiko's transverse myelitis. Plaintiffs' Ex. 16, at 112-13 and Table 6. Virtually all of the evidence submitted by the parties, including The Bakery's medical and scientific literature, supports the conclusion that indoor mold is a common cause of life-threatening infections in immunosuppressed patients, and Drs. Grant and Kerr opine that Maya was immunosuppressed and predisposed due to her age and immature immune system. In any event, while much of the medical and scientific articles and position papers submitted by plaintiffs may not "exactly parallel" the facts of plaintiffs' case, "a synthesis" of this literature "reasonably permits the conclusion" that Keiko and Maya were exposed to high levels of mold that is known to produce harmful mycotoxins, and that mycotoxins damage immune and neurological systems, both of which are implicated by Keiko and Maya's illnesses. LaRose, 105 AD3d at 1009. Specifically, the mold sampling test results from plaintiffs' apartment, and the accompanying affidavit of plaintiffs' mold expert, show that the concentration of Aspergillus/Penicillium in the nursery and office of plaintiffs' apartment were more than three times higher than the exterior. This evidence also showed that the interior of the apartment contained medium to high levels of Stachybotrys, another toxic mold, while the outdoor samples did not show Stachybotrys. According to plaintiffs' experts' affidavits and the medical and scientific literature that they rely upon, these levels could cause significant health problems, including neurological and immune system dysfunction that lead to Keiko and Maya's illnesses.

      Plaintiffs' evidence provides a "`scientific expression' of plaintiffs' exposure levels" to several species of toxigenic fungi — that is, fungi that produce mycotoxins — in quantities evidencing high levels of contamination. Nonnon, 88 AD3d at 396. Thus, plaintiffs "have laid an adequate foundation for their opinions on specific causation." Id. The literature upon which plaintiffs' experts rely reasonably permits the conclusion that there is a significant relationship between the mold found in plaintiffs' apartment and immune and nervous system injury and dysfunction, thereby increasing Keiko and Maya's susceptibility to their illnesses.

      Accordingly, The Bakery's motion for summary judgment is denied. As plaintiffs have substantiated their causation theory by showing general and specific causation, The Bakery's motion to preclude plaintiffs' expert witnesses from providing opinion evidence is denied. Moreover, a Frye hearing is unwarranted, as plaintiffs' causation theory is substantiated and supported by "relevant examples and data accompanying the experts' opinions."

      http://scholar.google.com/scholar_case?case=7703332973356943954&hl=en&lr=lang_en&as_sdt=2006&as_vis=1&oi=scholaralrt

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      END   Forwarded by Andrew Cutz, CIH, AIHA Fellow  |  Moderator, GlobalOccHyg List  |   http://health.groups.yahoo.com/group/globalocchyg-list/ (on Yahoo Groups)  |   RSS Feed http://rss.groups.yahoo.com/group/globalocchyg-list/rss   | http://tinyurl.com/GlobalOccHyg-List (on LinkedIn)   NEW!








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