Re: How Can a Judge Rule This Way before a Trial? What Options are Available?

[Guest guest]

This illustrates an important point in this whole mold mess, among

other issues: What type of proof is required for different types of

claims?

Personal claim: When I'm inside a building and don't feel well but I

feel better when I leave, my personal opinion is to leave the

building. If the impact is severe, I may never return. That's all I

need to know. I don't have to wait for a doctor or mold test or my

mother to tell me what to do. If it's my own property, I fix the

problem because I have the authority to do so and I have made a

decision based on whatever evidence I find convincing. It may be

scientific, from my own testing, from what my family and friends tell

me, something I saw on TV, or just WAG (wild-ass guessing). If I

can't find convincing evidence or the impact on my health isn't

sufficient, I don't act. Even if the rest of my family or my doctor

or whomever disagrees. I only have to convince myself, not a skeptic.

Medical claim: We defer our personal opinion to that of a medical

professional. If he/she disagrees we may find we have to convince a

skeptic. The doctor takes a history and maybe runs diagnostic tests,

rendering a professional medical opinion for treatment based on their

experience of similar cases as to impact and believability. IF they

are familiar with effects of exposures, he/she may offer advise to

indentify and stop the exposure. Otherwise, if they can't help they

may refer you to another doctor. After many complaints, many doctors,

many diagnoses and many treatment failures you will probably be

referred to a psychiatrist who gives more weight to the

psychological information than to the medical. They will begin

focusing on why you are so angry or depressed about a chronical

illness you can do nothing about.

Tenant claim: I accuse the landlord of causing conditions that

resulted in my harm, in this case, moisture that created mold that

made me sick. I can't fix the problem because it is outside of my

apartment or townhouse; or only the landlord has the authority.

He/she is skeptical and disputes my claim, or maybe just ignores me

for whatever reason, including they don't want to pay and accept

liability. He/she might fix the leak but leave the mold because they

don't believe it can make anybody sick. Or maybe remove the mold but

disagree with my claim that they are responsible for my continuing

illness because it would cost them money, perhaps irreparable harm of

bankruptcy. If I can't get the results I need, I may make a legal

claim to force him to act.

Legal claim: The defense by definition is skeptical. In their due

diligence to protect their client, they will insist on the most

rigorous proof possible. That usually means double-blind controlled

studies that have resulted in a mature body of peer-reviewed science.

Unlikely in a new arena such as mold, specifically, or the indoor

environment, in general. Furthermore, the courts have requirements to

prevent " junk science " through the Daubert and Frye criteria (some

states such as Colorado have their own seperate case law criteria).

Experts, if the defense asks, must meet this criteria before they are

allowed to testify about anything. Much is left to the judge's

opinion on whether or not the criteria has been met.

What is acceptable evidence for a personal decision may not be for a

medical decision or a landlord decision or a legal decision. They all

have different levels and types of criteria. Some are more rigorous

and some are just different. For better or for worse and whether you

agree or disagree; whether it is ultimately or morally right or

wrong; that is the way it is.

I realize this doesn't help us in our effort for justice (and I'm not

a doctor, lawyer, or other expert), but perhaps it will help to

understand what we are up against so we can improve our chances to

prevail. Keep up the good fight but know what you are fighting!

Carl Grimes

Healthy Habitats LLC

-----

> Headline Legal News from lexisONE

>

> Georgia Federal Judge Rejects Plaintiffs' Expert Testimony In Mold

> Case

>

> Jazairi v. Royal Oaks Apartment Associates L.P., et al.

> Mealey Publications

> Aug. 17, 2005

>

> SAVANNAH, Ga. -- Although a Georgia federal judge on June 23 ruled

> that plaintiff expert testimony failed to prove that mold contained

> within an apartment actually caused the alleged injuries, the judge

> allowed claims regarding porous personal property allegedly damaged by

> mold to stand (Jazairi v. Royal Oaks Apartment Associates L.P.,

> et al., No. 404cv091, S.D. Ga.).

>

> In this premises liability and mold exposure suit, Jazairi sued

> Royal Oaks Apartments Associations L.P. and L.

> Management Inc. (collectively, Royal Oaks) for damages arising from

> her exposure to mold in an apartment. Personal injuries alleged

> include memory loss, fatigue, malaise and interstitial thickening

> bilaterally in her lungs.

>

> Before the U.S. District Court for the Southern District of Georgia,

> Royal Oaks moved to exclude the causation testimony of Dr. Eckardt

> Johanning. Royal Oaks also moved for summary judgment. Jazairi opposed

> the motions and moved to exclude certain defense experts.

>

> Judge B. Avant Edenfield addressed Royal Oaks' argument that

> Johanning is not a treating physician, but an expert employed only to

> create causation testimony for Jazairi's case.

>

> " He [Johanning] is unable to establish through scientifically

> acceptable methodology that Jazairi was injured by the molds

> contained within her Royal Oaks apartment because he fails to

> properly rule in the specific molds contained in her apartment and

> rule out several potential causes, " the judge said.

>

> The judge continued that there is no scientific evidence suggesting

> that Royal Oaks is responsible for Jazairi's injuries resulting from

> exposure to mold.

>

> Copyright 2005, LexisNexis, Division of Elsevier Inc. All

> Rights Reserved.

>

>

>

>

>

>

>

>

>

>

>

>

[Guest guest]

That's a fairly amazing finding. And a little confusing. It looks like the judge

was prepared to accept Johanning's testimony IF he had been a treating

physician, but not otherwise. Because, short of that, the judge would have to

had proclaimed his own expertise in medicine, mycology, toxicology, biology, and

heaven only knows how many other " ologies " in order to know what all was, or was

not, worthy of ruling in or out in the first place.

Is that how you read this?

" Carl E. Grimes " <grimes@...> wrote:

This illustrates an important point in this whole mold mess, among

other issues: What type of proof is required for different types of

claims?

Personal claim: When I'm inside a building and don't feel well but I

feel better when I leave, my personal opinion is to leave the

building. If the impact is severe, I may never return. That's all I

need to know. I don't have to wait for a doctor or mold test or my

mother to tell me what to do. If it's my own property, I fix the

problem because I have the authority to do so and I have made a

decision based on whatever evidence I find convincing. It may be

scientific, from my own testing, from what my family and friends tell

me, something I saw on TV, or just WAG (wild-ass guessing). If I

can't find convincing evidence or the impact on my health isn't

sufficient, I don't act. Even if the rest of my family or my doctor

or whomever disagrees. I only have to convince myself, not a skeptic.

Medical claim: We defer our personal opinion to that of a medical

professional. If he/she disagrees we may find we have to convince a

skeptic. The doctor takes a history and maybe runs diagnostic tests,

rendering a professional medical opinion for treatment based on their

experience of similar cases as to impact and believability. IF they

are familiar with effects of exposures, he/she may offer advise to

indentify and stop the exposure. Otherwise, if they can't help they

may refer you to another doctor. After many complaints, many doctors,

many diagnoses and many treatment failures you will probably be

referred to a psychiatrist who gives more weight to the

psychological information than to the medical. They will begin

focusing on why you are so angry or depressed about a chronical

illness you can do nothing about.

Tenant claim: I accuse the landlord of causing conditions that

resulted in my harm, in this case, moisture that created mold that

made me sick. I can't fix the problem because it is outside of my

apartment or townhouse; or only the landlord has the authority.

He/she is skeptical and disputes my claim, or maybe just ignores me

for whatever reason, including they don't want to pay and accept

liability. He/she might fix the leak but leave the mold because they

don't believe it can make anybody sick. Or maybe remove the mold but

disagree with my claim that they are responsible for my continuing

illness because it would cost them money, perhaps irreparable harm of

bankruptcy. If I can't get the results I need, I may make a legal

claim to force him to act.

Legal claim: The defense by definition is skeptical. In their due

diligence to protect their client, they will insist on the most

rigorous proof possible. That usually means double-blind controlled

studies that have resulted in a mature body of peer-reviewed science.

Unlikely in a new arena such as mold, specifically, or the indoor

environment, in general. Furthermore, the courts have requirements to

prevent " junk science " through the Daubert and Frye criteria (some

states such as Colorado have their own seperate case law criteria).

Experts, if the defense asks, must meet this criteria before they are

allowed to testify about anything. Much is left to the judge's

opinion on whether or not the criteria has been met.

What is acceptable evidence for a personal decision may not be for a

medical decision or a landlord decision or a legal decision. They all

have different levels and types of criteria. Some are more rigorous

and some are just different. For better or for worse and whether you

agree or disagree; whether it is ultimately or morally right or

wrong; that is the way it is.

I realize this doesn't help us in our effort for justice (and I'm not

a doctor, lawyer, or other expert), but perhaps it will help to

understand what we are up against so we can improve our chances to

prevail. Keep up the good fight but know what you are fighting!

Carl Grimes

Healthy Habitats LLC

-----

> Headline Legal News from lexisONE

>

> Georgia Federal Judge Rejects Plaintiffs' Expert Testimony In Mold

> Case

>

> Jazairi v. Royal Oaks Apartment Associates L.P., et al.

> Mealey Publications

> Aug. 17, 2005

>

> SAVANNAH, Ga. -- Although a Georgia federal judge on June 23 ruled

> that plaintiff expert testimony failed to prove that mold contained

> within an apartment actually caused the alleged injuries, the judge

> allowed claims regarding porous personal property allegedly damaged by

> mold to stand (Jazairi v. Royal Oaks Apartment Associates L.P.,

> et al., No. 404cv091, S.D. Ga.).

>

> In this premises liability and mold exposure suit, Jazairi sued

> Royal Oaks Apartments Associations L.P. and L.

> Management Inc. (collectively, Royal Oaks) for damages arising from

> her exposure to mold in an apartment. Personal injuries alleged

> include memory loss, fatigue, malaise and interstitial thickening

> bilaterally in her lungs.

>

> Before the U.S. District Court for the Southern District of Georgia,

> Royal Oaks moved to exclude the causation testimony of Dr. Eckardt

> Johanning. Royal Oaks also moved for summary judgment. Jazairi opposed

> the motions and moved to exclude certain defense experts.

>

> Judge B. Avant Edenfield addressed Royal Oaks' argument that

> Johanning is not a treating physician, but an expert employed only to

> create causation testimony for Jazairi's case.

>

> " He [Johanning] is unable to establish through scientifically

> acceptable methodology that Jazairi was injured by the molds

> contained within her Royal Oaks apartment because he fails to

> properly rule in the specific molds contained in her apartment and

> rule out several potential causes, " the judge said.

>

> The judge continued that there is no scientific evidence suggesting

> that Royal Oaks is responsible for Jazairi's injuries resulting from

> exposure to mold.

>

> Copyright 2005, LexisNexis, Division of Elsevier Inc. All

> Rights Reserved.

>

>

>

>

>

>

>

>

>

>

>

>

[Guest guest]

Yes and no, Serena. Again, I'm not an attorney, but my understanding

is that a treating physician can make certain claims that a non-

treating expert can't - and visa versa. Each has an area of expertise

that they should stay within and each has a different set of

qualifications for testifying.

Testifying as a treating physician allows clinical findings of that

individual but not necessarily scientific findings on causation.

Testifying as a non-treating physician allows scientific causation

but doesn't necessarily address that specific patient. If Johanning

had been treating the patient and was also an expert on causation

then he might have been allowed to testify to both.

To further complicate, neither addresses the issue of whether or not

the patient was actually exposed as claimed. That, ideally, is where

the environmental expert can close the loop by testifying whether or

not the claimed exposure source was actually present and the patient

was exposed to it. Or if something else caused the problem - one of

the other points the judge made.

Carl Grimes

Healthy Habitats LLC

-----

> That's a fairly amazing finding. And a little confusing. It looks like

> the judge was prepared to accept Johanning's testimony IF he had been

> a treating physician, but not otherwise. Because, short of that, the

> judge would have to had proclaimed his own expertise in medicine,

> mycology, toxicology, biology, and heaven only knows how many other

> " ologies " in order to know what all was, or was not, worthy of ruling

> in or out in the first place.

>

> Is that how you read this?

>

[Guest guest]

I don't see a problem with that approach. It makes sense. What I don't get, is

why Johanning could not have reviewed the clinician's records and have his

opinion be entirely admissible as a consulting physician. It's done every day of

the week, and admissible in every (other) court in country. The judge might have

chosen to bar and testimony on research Johanning didn't perform himself or

within his area of specialty, but to bar him altogether seems ludicrous and

prejudicial - especially if the trial HADN'T EVEN BEGUN and Johanning's claimed

credentials weren't in question.

Something is wrong with this - either the motivating facts or the reporting of

them are offbase somewhere.

" Carl E. Grimes " <grimes@...> wrote:

Yes and no, Serena. Again, I'm not an attorney, but my understanding

is that a treating physician can make certain claims that a non-

treating expert can't - and visa versa. Each has an area of expertise

that they should stay within and each has a different set of

qualifications for testifying.

Testifying as a treating physician allows clinical findings of that

individual but not necessarily scientific findings on causation.

Testifying as a non-treating physician allows scientific causation

but doesn't necessarily address that specific patient. If Johanning

had been treating the patient and was also an expert on causation

then he might have been allowed to testify to both.

To further complicate, neither addresses the issue of whether or not

the patient was actually exposed as claimed. That, ideally, is where

the environmental expert can close the loop by testifying whether or

not the claimed exposure source was actually present and the patient

was exposed to it. Or if something else caused the problem - one of

the other points the judge made.

Carl Grimes

Healthy Habitats LLC

Serena

(Drywall Casserole with Gummint Cheese. It's what's for dinner!)

---------------------------------

FareChase - Search multiple travel sites in one click.

[Guest guest]

I have thought about it alot of times why can't we get justice some

way. One time I called Angelos office, he owns the Baltimore

Orials but is also a big time lawyer. It was around the steroid

hearings with congress. I asked his office why we can't make the

government regulate our products. I don't understand why you can't

legally make them make our products safer since there are millions

suffering from this mcs illness. Of course I didn't get much of a

response from them. I can't believe we have to just sit here and wait

to die.

[Guest guest]

I guess I was one of the last to see Dr. Johanning while he was

treating mold victims. Unfortunately he resigned before he treated

me. He told me I has systematic fungal disease after he resigned, and

I was left to fend for myself. After that visit my local doctors were

afraid to treat me. I am still waiting for help. That was in 2000.

Unfortunately the insurance is gone now when my husband starting having

seizures at work. Where is the justice.

[Guest guest]

OK Carl,

Granted an environmental expert can close a loop and show a

condition exists which possibly might cause the claimed illness.

But how can the expert's testimony be evidence the environmental

condition actually caused that particular illness.

You make it sound like all that is needed is an expert

environmentalist.

While I agree such is needed I'd say far more is also needed. Again

I say, these environmental cases are lost because the plaintiff

lacks adequate evidence to prove who is responsible.

I truly believe more worthy cases are lost because of inadequate

evidence.

Ken

=====================

--- In , " Carl E. Grimes " <grimes@h...>

wrote:

>

> Yes and no, Serena. Again, I'm not an attorney, but my

understanding

> is that a treating physician can make certain claims that a non-

> treating expert can't - and visa versa. Each has an area of

expertise

> that they should stay within and each has a different set of

> qualifications for testifying.

>

> Testifying as a treating physician allows clinical findings of

that

> individual but not necessarily scientific findings on causation.

> Testifying as a non-treating physician allows scientific causation

> but doesn't necessarily address that specific patient. If

Johanning

> had been treating the patient and was also an expert on causation

> then he might have been allowed to testify to both.

>

> To further complicate, neither addresses the issue of whether or

not

> the patient was actually exposed as claimed. That, ideally, is

where

> the environmental expert can close the loop by testifying whether

or

> not the claimed exposure source was actually present and the

patient

> was exposed to it. Or if something else caused the problem - one

of

> the other points the judge made.

>

> Carl Grimes

> Healthy Habitats LLC

>

> -----

> > That's a fairly amazing finding. And a little confusing. It

looks like

> > the judge was prepared to accept Johanning's testimony IF he had

been

> > a treating physician, but not otherwise. Because, short of that,

the

> > judge would have to had proclaimed his own expertise in medicine,

> > mycology, toxicology, biology, and heaven only knows how many

other

> > " ologies " in order to know what all was, or was not, worthy of

ruling

> > in or out in the first place.

> >

> > Is that how you read this?

> >

>

[Guest guest]

Same here, . I didn't feel that he was very competent. He made ME

send out a request to my company for air quality tests, which I did do

by certified mail. They never replied and he never followed up. His

rates were pretty high for testing, etc. So he left me in the lurch

too. He wanted me to go to Mt. Sinai for lung biopsy and testing, but

I could not afford the out of pocket expense to do so. He was also

very condescending in his manner towards me to the point of mockery

because I'm a bird breeder. No big loss to either of us. The main

thing was that he didn't make my company comply with his request for

air quality tests. I felt that that was very negligible. The next time

I go into WC hearing (which they never even gave me even though they

paid another guy with the same lung ailment who worked at the same

company), I'm going armed with a wheelbarrow of papers and a very loud

voice. I'm so tired of the political crookedness and disparities in

this world.

Barth

TOXIC MOLD SURVEY: www.presenting.net/sbs/sbssurvey.html

---

l> I guess I was one of the last to see Dr. Johanning while he was

l> treating mold victims. Unfortunately he resigned before he treated

l> me. He told me I has systematic fungal disease after he resigned, and

l> I was left to fend for myself. After that visit my local doctors were

l> afraid to treat me. I am still waiting for help. That was in 2000.

l> Unfortunately the insurance is gone now when my husband starting having

l> seizures at work. Where is the justice.

l> FAIR USE NOTICE:

l>

[Guest guest]

By the might and power of Almighty God, we need to do all that we can

to rid this country of its lousy political bought off wimps. My energy

is such that I can't do it alone, but I can by not voting for any of

these creeps. This year was probably only the 2nd time in my life I

haven't voted because I couldn't bring myself to do it. It's all such

a farce. We need to start a Mold Party!

Barth

TOXIC MOLD SURVEY: www.presenting.net/sbs/sbssurvey.html

---

l> I have thought about it alot of times why can't we get justice some

l> way. One time I called Angelos office, he owns the Baltimore

l> Orials but is also a big time lawyer. It was around the steroid

l> hearings with congress. I asked his office why we can't make the

l> government regulate our products. I don't understand why you can't

l> legally make them make our products safer since there are millions

l> suffering from this mcs illness. Of course I didn't get much of a

l> response from them. I can't believe we have to just sit here and wait

l> to die.

l> FAIR USE NOTICE:

l>