FEDERAL COURT, NY, NY --- Mold Case; Plaintiff's Experts All Admissible

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_LexisNexis_ (http://www.lexisnexis.com/mealeys/) ® Mealey's

Daubert Report

Volume 9, Issue #6 · June 2005

Mistrial Declared In Mold Case; Plaintiff's Experts All Admissible

NEW YORK - A federal judge last month found admissible environmental and

causation experts who linked high levels of toxic mold in a Columbia University

student's apartment to her severe illness; the ruling followed a Daubert

hearing at which the court repeatedly suggested that the only issue to be tried

was damages (Amy Frederick v. Columbia University v. r Corp., No.

01-Civ. 4632 JES, S.D. N.Y.).

(Transcript available. _Document #30-050627-017T._

(https://www3.lexis.com/LENS/EndUser?Action=PDF_AUTH & pdfId=30050627017T) )

After a four-day trial, U.S. Judge E. Sprizzo of the Southern District

of New York on June 1 granted a mistrial at the request of both parties for

reasons unrelated to the experts. A new trial has been set for June 2006.

Summary judgment motions are due in August.

Defendant r Corp. settled with plaintiff Amy Frederick mid-trial.

Health Decline

Frederick was a Ph.D. candidate at Columbia and said she was training for a

triathlon when she moved into her university-owned apartment. During her two

years in the 1960s-era building, Frederick developed severe fatigue,

shortness of breath, tremors and neuropsychological defects. Testimony at the

Daubert hearing showed that her IQ dropped 30 points.

Sothern, an industrial hygienist, testified that he assessed

conditions at the apartment in 2000 and found mold on the air conditioning

unit, the

floor below it and on the cooling coils. His tests showed that indoor air

was 4,700 times worse than the outdoor air sample.

Schwartz, an indoor environmental air consultant, testified that he

found mold spores in the air and that air quality in the apartment was

significantly compromised.

Lipsey

Dr. Lipsey, a forensic toxicologist, testified that in 2002, two

years after Frederick moved out, he found 29 million colony-forming units per

square inch on the apartment's ceiling fan and 120 million - the highest he's

ever seen - on the refrigerator. Lipsey conceded that these colonies were

fungi but said the conditions were ripe for mold.

Lipsey said the significance of the ceiling fan was that mycotoxins built up

on the fan while Frederick was living there. If the fan was not turned on

after she moved, the sample from the fan showed exactly what Frederick had

been breathing. Lipsey said he normally works for defendants. When he sees a

case like this, he urges them to settle.

Lipsey also testified about how mold grows, survives and produces

mycotoxins. He described what mycotoxins were found in Frederick's blood and

how they

were connected to her symptoms.

His conclusion was that Frederick's apartment contained harmful mycotoxins,

that she was exposed, that there is a known association between exposure and

risk for disease and that there was a temporal relationship. Frederick had

documented brain damage, documented lung damage and documented mycotoxins, he

said. Lipsey testified that he had no doubt that she was poisoned by her

apartment.

Wasserberger

Dr. Wasserberger, MD testified that he used differential diagnosis

to determine that the Penicillium janthinellum, Aspergillis, Altunaria and

Fusariumfound in Frederick's apartment produced her symptoms. He also applied

peer-reviewed scientific literature and studies and his own experience

working with more than 100 mold patients in rendering his opinion.

Wasserberger said Frederick was in good health before she moved into the

apartment. All other causes had been ruled out. There was no carbon dioxide;

she did not suffer from any other diseases.

Frederick's fiance, who also spent a great deal of time in the apartment,

showed blood mycotoxin levels that were " off the chart, " Wasserberger said.

Frederick's levels were lower and her symptoms more severe because she had a

compromised immune system, he testified. The fact that two residents of the

same apartment had mycotoxins in their blood made the link to mold in the

apartment strong, Wasserberger testified.

" There has to be an exposure to toxic mold for those tests to be positive, "

he said.

Experts Admissible

The court found the scientific testing to be quite persuasive - it was

scientific, peer-reviewed and meets all Daubert requirements, the court said.

The court noted that Columbia was arguing insufficient evidence, but that

does not relate to Daubert. The issue is admissibility, and the court said

the testimony was not intrinsically junk science.

" I think the more I see of this case, the more I am convinced that what this

case is really about is damages, " the court said.

Although the court said the defense was free to disagree, it said that if

Frederick proved at trial what she proved at the Daubert hearing, Columbia

would not get a directed verdict.

The defendants called no witnesses at the Dauberthearing.

Counsel to Frederick is F. McCallion of New York. J. Graham

II and Strober of Rivkin Radler in Uniondale, N.Y., represent Columbia.

J. and Kendric of Ahmuty, Demers & McManus in New York

represent r.

Dr. L. Lipsey ( 904 ) 398-2168

Forensic Toxicologist and Instructor

University of North Florida, HazMat/OSHA

Univ. Fla. Medical Center Jax, Poison Control Board

Fla. Comm. College Jax, Institute of Occ. Safety & Health

www.richardlipsey.com