Re: Re: New York Times Correction regarding Frye Hearing in ...

[Guest guest]

Will put the whole thing on the board. Thanks to everyone who took the time

to send an email to the NY Times, we are able to counter the misinformation.

SIGN SUE " S PETITION AND GET OTHERS TO DO SO, TOO. I promise you, we will

put it to good use.

FROM THE NEW YORK TIMES:

Your Home

Court Rebuffs a Suit Linking Mold to Illness

*

By _JAY ROMANO_ (http://query.nytimes.com/search/query?ppds=bylL & v1=JAY

ROMANO & fdq=19960101 & td=sysdate & sort=newest & ac=JAY ROMANO & inline=nyt-per)

Published: October 15, 2006

Correction Appended

Illustration by Tom Bloom

A DECISION issued last month by a State Supreme Court justice in _Manhattan_

(http://topics.nytimes.com/top/classifieds/realestate/locations/newyork/newyork

city/manhattan/?inline=nyt-geo) should allow building owners, including

co-op and condominium boards, to rest a little easier about potential claims

that

indoor mold has injured an occupant of their buildings.

After a review of more than 1,000 pages of testimony and more than 70

scientific articles and books, Justice Shirley Werner Kornreich concluded that

there was insufficient evidence to support the contention that mold or a damp

indoor environment causes illness.

“This throws a lot of cold water on the notion that mold is the cause of

personal injury,†said Eva Talel, a Manhattan real estate lawyer. “And while

this isn’t going to be the last word on the subject, the decision is so

comprehensive and well thought out that other judges are not going to be anxious

to

rule differently.â€

The case was brought by Colin and Pamela Fraser on behalf of themselves and

their daughter, andra, against the 301-52 Townhouse Corporation, which

owned their co-op building. The Frasers contended that mold near windows and

doors in their apartment caused respiratory problems, a rash and fatigue. The

Frasers said that after moving into an apartment at 301 East 52nd Street in

August 1996, Mr. Fraser developed a leg rash, lethargy and congestion and

hearing, nasal and throat problems and Mrs. Fraser and their infant daughter

developed respiratory problems.

The couple said their conditions improved when the family moved out of the

apartment in 2002.

Before allowing the case to proceed to trial, Justice Kornreich ordered what

is known as a Frye hearing to determine whether the Frasers’ contention that

mold caused their health problems is “generally accepted†by scientists.

A Frye hearing, which is named after a 1923 federal case, is used to

determine whether scientific evidence supports a litigant’s theory of

liability.

After 10 days and the testimony of four experts, Justice Kornreich concluded

that while one expert testified mold or damp indoor space caused health

problems, “the scientific literature did not support his assertions.†As a

result,

Justice Kornreich dismissed the claim for personal injuries.

Three calls to Eilender, the Frasers’ lawyer, seeking comment and

information about a possible appeal, were not returned.

Brucker, the lawyer who represented the co-op in the case, said that

the “whole mold issue has been blown out of proportion.

“We think this is going to have a major impact on lawyers who are thinking

about bringing cases alleging injuries caused by mold,†he said. “And we

think

that insurance companies are now going to be more inclined to fight these

cases instead of settle them.â€

Dennis Greenstein, a Manhattan co-op lawyer, said that while the decision was

good news for property owners concerned that they could be held liable for

injuries said to be caused by mold, they and their property managers should

still take mold problems seriously.

“People still have to do the best they can when dealing with mold and the

leaks that may cause it,†Mr. Greenstein said. He pointed out that failure to

address mold or leak problems could still leave owners exposed to lawsuits for

property damage.

Dr. ph Q. Jarvis, an expert in public health who is affiliated with the

_University of Nevada_

(http://topics.nytimes.com/top/reference/timestopics/organizations/u/university_\

of_nevada/index.html?inline=nyt-org) School of

Medicine in Reno, said he was surprised that a comprehensive review of the

medical

literature led the judge to conclude there was no consensus that mold can

cause illness. While it may not be possible to specify the level of exposure

needed to cause a problem, he said, it is well documented that exposure to

indoor mold can cause respiratory allergies in some people.

Correction: Oct. 22, 2006

The Your Home column last Sunday, about the dismissal of a claim that sought

to hold a co-op corporation in Manhattan liable for injuries to residents

caused by mold, referred incorrectly to a " Frye hearing, " which was held to

examine scientific links between mold and health problems. Contrary to what a

lawyer in the case stated, this was not the first Frye hearing in New York; at

least one other such hearing was held in Manhattan in 2001.

They got many letters of complaint to the Editor. Below is mine:

Subject: Another NY Frye hearing over mold.... Just last month You got

punk'd. Date: 10/16/2006 9:31:56 A.M. Pacific Standard Time From:

_SNK 1955_ (mailto:SNK 1955)

Mr. Romano,

Sorry to bother you again, but it is looking more and more like you got

punk'd by the defense into writing a story based on a false premise (that this

Frye ruling was significant news because it was the first over the mold issue in

the state of NY).

In reality, what is significant about this Frye ruling is that is it novel

in it's conclusions from all other NY Frye rulings over the mold issue.

It is quite understandable why the defense would want to use the real estate

section of the NY Times to market the concept that, “This throws a lot of

cold water on the notion that mold is the cause of personal injury,†said Eva

Talel, a Manhattan real estate lawyer. “And while this isn’t going to be

the

last word on the subject, the decision is so comprehensive and well thought

out that other judges are not going to be anxious to rule differently.â€

As I understand it, ALL other NY Frye rulings have allowed in testimony of

allergy and irritant effects from mold exposure within an indoor environment.

This judge is the only one who has not. There is your true story!

Beside the one I already sent to you from 2001, here is another one from

just last month.

Trust me, as a marketing person, I track this kind of stufff over the mold

issue. You would not be the first writer to get punk'd into writing a false

article over the mold issue.

Although, I sincerely hope that now that you know this, you will make every

effort to set the record straight. The defense attorney you quoted misspoke

regarding Frye and the state of New York.

" Brucker, the lawyer who represented the co-op in the case, said this

was the first time a Frye hearing on mold had been held in New York "

This is not the first Frye hearing regarding mold within the state of New

York by a long shot.

Frye Hr’g Proceeding at 14-15, v. Henry Phipps Plaza South, Assocs.

(N.Y. Sup. Ct. (Oct. 11, 2001)

What can I do to help you?

WR,

Sharon

(http://www.nytimes.com/pages/realestate/index.html)