Wall Street Journal: Court of Opinion Amid Suits Over Mold, Experts Wear Two Hat

[Guest guest]

Court of Opinion

Amid Suits Over Mold,

Experts Wear Two Hats

Authors of Science Paper

Often Cited by Defense

Also Help in Litigation

By DAVID ARMSTRONG

January 9, 2007; Page A1

Soon after moving into a New York City apartment, Colin and Pamela

Fraser say, they began to suffer headaches, rashes, respiratory

infections and fatigue. They attributed it to mold.

But their lawsuit against the cooperative that owns the building hit

a roadblock when the court wouldn't let their medical expert testify

that mold caused their problems. This is " unsupported by the

scientific literature, " the state trial judge said.

She relied in part on a position paper from the American College of

Occupational and Environmental Medicine, or ACOEM. Citing a

substance some molds produce called mycotoxins, the paper

said " scientific evidence does not support the proposition that

human health has been adversely affected by inhaled mycotoxins in

the home, school, or office environment. "

The paper has become a key defense tool wielded by builders,

landlords and insurers in litigation. It has also been used to

assuage fears of parents following discovery of mold in schools. One

point that rarely emerges in these cases: The paper was written by

people who regularly are paid experts for the defense side in mold

litigation.

The ACOEM doesn't disclose this, nor did its paper. The professional

society's president, Tee Guidotti, says no disclosure is needed

because the paper represents the consensus of its membership and is

a statement from the society, not the individual authors.

The dual roles show how conflicts of interest can color debate on

emerging health issues and influence litigation related to it. Mold

has been a contentious matter since a Texas jury in 2001 awarded

$32.1 million to a family whose home was mold-infested. That award,

later reduced, and a couple of mold suits filed by famous people

like Ed McMahon and Brockovich helped trigger a surge in mold

litigation. Insurers and builders worried it would become a

liability disaster for them on the scale of asbestos.

The number of suits hasn't been as big as anticipated. One reason

appears to be the insurers' success in getting many states to

exclude mold coverage from homeowner's-insurance policies. But also

helping turn the tide, lawyers and doctors say, is the ACOEM report.

Building groups and the U.S. Chamber of Commerce have cited it to

rebut the notion that mold in the home can be toxic.

Craner, a Nevada doctor who has testified for scores of people

who claimed ill effects from mold, says the paper " has been used in

every single mold case. The lawyer asks, 'Isn't it true the American

College of Occupational and Environmental Medicine concluded that

there is no scientific evidence that mold causes any serious health

effects?' "

The result, Dr. Craner maintains, is that " a lot people with

legitimate environmental health problems are losing their homes and

their jobs because of legal decisions based on this so-

called 'evidence-based' statement. "

Dr. Craner says a majority of his work is on the plaintiff side and

he is paid when he testifies, but he says he currently is an expert

for the defense in a case where he concluded the plaintiffs' health

issues weren't related to mold.

Two other medical societies have also published statements on mold

written, in part, by legal-defense experts. The societies didn't

disclose this when they released the papers, although one later

published a correction saying two authors served as expert witnesses

in mold litigation.

READ MORE

• Read the full text of Dr. Borak's September 2002 email to the

leaders of the American College of Occupational and Environmental

Medicine about his struggles in drafting their position paper on

mold.

• Read the official position statements of the American College of

Occupational and Environmental Medicine and of the American Academy

of Allergy, Asthma and Immunology, as posted on their Web sites.

Mold reproduces through tiny spores. These can float into homes

through windows and vent systems or be carried in on clothes or

shoes. Indoors, mold grows when moisture is present.

There's debate about how much this matters. Plaintiffs attribute

ills ranging from asthma to cognitive problems to inhalation of

mold. The Institute of Medicine, a largely federally funded

nonprofit, reviewed the research in 2004 and said " studies have

demonstrated adverse effects -- including immunotoxic, neurologic,

respiratory and dermal responses -- after exposure to specific

toxins, bacteria, molds or their products. " But it added that the

dose required to cause adverse health effects hasn't been

determined. The U.S. Centers for Disease Control and Prevention, for

its part, says on its Web site that mold can cause wheezing and eye

or skin irritation, but a link to more serious conditions " has not

been proven. "

'Highly Unlikely'

The ACOEM paper goes further. It says not only is there no evidence

indoor mold causes serious health effects, but even if mold produced

toxic substances, it's " highly unlikely at best " that anyone could

inhale enough to cause a problem. The paper reaches this conclusion

by extrapolating from animal studies in which rodents' throats were

injected with molds.

The paper's authors say their conclusions are validated by the

Institute of Medicine's paper. But the author of the Institute

paper's mold toxicity chapter, Harriett Ammann, disagrees, and

criticizes the ACOEM paper's methodology: " They took hypothetical

exposure and hypothetical toxicity and jumped to the conclusion

there is nothing there. "

Dr. Ammann, a recently retired toxicologist for Washington state's

health department, recently helped the plaintiff side in a mold

case. She says this was the only time she has done so for pay. In

the Fraser lawsuit in New York, after the judge barred testimony

that mold caused health problems, Dr. Ammann, on her own and without

pay, provided an affidavit filed with the appellate court saying the

judge misinterpreted the research.

The ACOEM, a society of more than 5,000 specialists who investigate

indoor health hazards and treat patients with related illnesses,

first moved to develop a position paper on mold in early 2002. Dean

Grove, then the medical society's president, asked the head of its

council on scientific affairs, Yale medical professor

Borak, to set the process in motion.

He turned to a retired deputy director of the National Institute for

Occupational Safety and Health -- part of the CDC -- to spearhead

the project. Dr. Borak says he wanted someone with " no established

background record of litigation related to mold. "

For the Defense

The person he chose, Hardin, says he hadn't worked on any mold

lawsuit at that point, though he was a consultant on other matters

for GlobalTox Inc., a firm that regularly worked for the defense in

mold cases. And Dr. Hardin says he consulted for the defense in a

mold case while he was helping write the ACOEM paper.

In a Feb. 27, 2002, email, Dr. Borak told Dr. Hardin: " That position

paper would be prepared by you and your GlobalTox colleagues. " Dr.

Borak says he believes he didn't know at the time that GlobalTox did

mold defense work.

A GlobalTox colleague who aided Dr. Hardin was Bruce Kelman, now

president of the firm, which recently changed its name to Veritox

Inc. Drs. Kelman and Hardin, now principals at the firm and entitled

to a share of its profits, were two of the ACOEM paper's three

authors. They are paid $375 to $500 an hour for work on mold cases,

court records say.

EXPERT WITNESSES

• The Situation: Mold defendants rely on medical-society position

papers that reject a link to serious ills, but papers were written

by scientists who often work for defense side in mold cases.

• The Debate: Whether courts get accurate or skewed view of possible

health effects of indoor mold.

• What's at Stake: Outcome of widespread litigation over mold.

The paper's third author was Saxon, then chief of clinical

immunology and allergy at the medical school of the University of

California, Los Angeles. He, too, has served as a defense expert in

numerous mold suits. Dr. Saxon says he is paid $510 an hour for his

help. If called to testify in court, his rate rises to $720 an hour,

according to a deposition he gave.

Until he retired from UCLA in September, money he earned as a legal-

defense expert was paid to the university, and he says UCLA then

gave him a little less than half of it. Dr. Saxon estimates he

generates $250,000 to $500,000 a year from expert defense work,

which includes non-mold cases.

The ACOEM knew about mold defense work by the authors of its paper.

Dr. Hardin informed the society in a Sept. 23, 2002, document under

his letterhead. Labeled " confidential " and " share only with the

ACOEM board of directors, " it told of his work as a defense expert

on one mold case.

The letter said the other two authors, Drs. Saxon and Kelman, " have

been retained by both the defense and plaintiff bar in litigation

relating to indoor mold. " Both say they work mostly for the defense

in mold cases.

Internal ACOEM documents indicate that as the paper was being

written in August 2002, there was concern within the society that

the paper was too friendly to defense interests. Its authors were

asked to modify the first draft's tone " because of the concern about

possible misinterpretation of 'buzz words' and phrases such

as 'belief system,' 'adherents may claim,' 'supposed

hypersensitivity,' and 'alleged disorder,' " according to a June 2002

email to Dr. Hardin from the society's communications director. (The

email was obtained by a plaintiff's attorney in a mold case,

Kahn.)

Dr. Borak, the head of the society's council on scientific affairs,

suggested sending a draft for review to one particular mold

authority, Hodgson, director of the occupational safety and

health program at the U.S. Veterans Health Administration. Dr.

Hardin objected. He said it would be " inappropriate to add ad hoc

reviewers who are highly visible advocates for a point of view the

draft position paper analyzes and finds lacking. " The draft

ultimately wasn't sent.

'A Defense Argument'

In September 2002, Dr. Borak emailed colleagues that " I am having

quite a challenge in finding an acceptable path for the proposed

position paper on mold. " He said several reviewers " find the current

version, much revised, to still be a defense argument. "

The society released a paper two months later, and its authors, as

well as ACOEM officials, say it accurately reflects the science on

indoor mold exposure. The authors' " views, if prejudicial, were

removed, " Dr. Borak says. " It went through a dramatic change of top-

heavy peer reviews. " He says objections come mainly from " activist

litigants " who find it " annoying. "

Drs. Hardin and Kelman say the paper has been controversial because

it challenged " a belief system " that mold can be toxic indoors. " A

belief system is built up and there is anger when the science

doesn't support that belief system, " Dr. Kelman says.

The Manhattan Institute, a conservative think tank, paid Veritox

$40,000 to prepare a lay version of the paper. That version

said " the notion that 'toxic mold' is an insidious, secret 'killer,'

as so many media reports and trial lawyers would claim, is 'junk

science' unsupported by actual scientific study. " Its authors were

the three writers of the longer paper plus a fourth, who also is a

principal at Veritox.

Lawyers defending mold suits also cite a position paper from the

American Academy of Allergy, Asthma and Immunology. This paper says

it concurs with the ACOEM that it is highly unlikely enough

mycotoxins could be inhaled to lead to toxic health effects.

Among the academy paper's five authors is Dr. Saxon. Another, Abba

Terr, a San Francisco immunologist, has worked as a defense expert

in mold cases. The academy published the paper in its Journal of

Allergy and Clinical Immunology last February, not citing the mold-

defense work of either man. The publication later ran a correction

disclosing their litigation work.

The academy's president says officials were aware Dr. Saxon was an

expert witness. " We should have published their [disclosure]

statements with the paper, " says the official, Platts-Mills.

He says the lapse resulted from a variety of factors, including

confusion about whose responsibility the disclosure was.

Unhappy Author

A third author of the academy's paper, Jay Portnoy, chief of

allergy, asthma and immunology at the Children's Mercy Hospital in

Kansas City, Mo., says he " felt that there was an agenda " -- the

effort " seemed very biased toward denying the possibility of there

being harmful effects from mold on human health. " He says he

considered removing his name from the paper, but it was published

before he could decide.

Dr. Portnoy says a section he contributed was rewritten by Dr. Saxon

to be " a lot more negative. " He says the paper wrongly says mold

isn't proven to cause allergic rhinitis, with symptoms like

wheezing, sore throat and sneezing. Dr. Saxon denies the authors had

a bias but says they applied a high standard for proving mold causes

a particular effect. He says he didn't skew the content of Dr.

Portnoy's section but rewrote it because it was " too diffuse. " Dr.

Terr in San Francisco didn't return a call seeking comment.

In New York, the Frasers are appealing the refusal of the trial

judge, state Supreme Court Justice Shirley Werner Kornreich, to let

their expert testify that indoor mold caused their health

complaints. The Frasers had moved into the East Side Manhattan

apartment in 1996. Their 2002 suit said they repeatedly complained

to the co-op's board of dampness and leaks as their health

deteriorated.

Their appeal attacks the credibility of mold position papers drafted

by scientists who work for defendants. " What you have here is

defense experts authoring papers under an official guise, " says

their attorney, Eilender. Justice Kornreich declined to

comment.

Write to Armstrong at david.armstrong@...

[Guest guest]

WOW AND WOW AGAIN, MAYBE THERE IS STILL SOME JUSTICE IN THIS WORLD

AFTER ALL. THANKS TO ALL THOSE OUT THERE THAT REALLY CARE.

>

> Court of Opinion

> Amid Suits Over Mold,

> Experts Wear Two Hats

>

> Authors of Science Paper

> Often Cited by Defense

> Also Help in Litigation

>

> By DAVID ARMSTRONG

> January 9, 2007; Page A1

>

> Soon after moving into a New York City apartment, Colin and Pamela

> Fraser say, they began to suffer headaches, rashes, respiratory

> infections and fatigue. They attributed it to mold.

>

> But their lawsuit against the cooperative that owns the building

hit

> a roadblock when the court wouldn't let their medical expert

testify

> that mold caused their problems. This is " unsupported by the

> scientific literature, " the state trial judge said.

>

> She relied in part on a position paper from the American College of

> Occupational and Environmental Medicine, or ACOEM. Citing a

> substance some molds produce called mycotoxins, the paper

> said " scientific evidence does not support the proposition that

> human health has been adversely affected by inhaled mycotoxins in

> the home, school, or office environment. "

>

>

> The paper has become a key defense tool wielded by builders,

> landlords and insurers in litigation. It has also been used to

> assuage fears of parents following discovery of mold in schools.

One

> point that rarely emerges in these cases: The paper was written by

> people who regularly are paid experts for the defense side in mold

> litigation.

>

> The ACOEM doesn't disclose this, nor did its paper. The

professional

> society's president, Tee Guidotti, says no disclosure is needed

> because the paper represents the consensus of its membership and is

> a statement from the society, not the individual authors.

>

> The dual roles show how conflicts of interest can color debate on

> emerging health issues and influence litigation related to it. Mold

> has been a contentious matter since a Texas jury in 2001 awarded

> $32.1 million to a family whose home was mold-infested. That award,

> later reduced, and a couple of mold suits filed by famous people

> like Ed McMahon and Brockovich helped trigger a surge in mold

> litigation. Insurers and builders worried it would become a

> liability disaster for them on the scale of asbestos.

>

> The number of suits hasn't been as big as anticipated. One reason

> appears to be the insurers' success in getting many states to

> exclude mold coverage from homeowner's-insurance policies. But also

> helping turn the tide, lawyers and doctors say, is the ACOEM

report.

> Building groups and the U.S. Chamber of Commerce have cited it to

> rebut the notion that mold in the home can be toxic.

>

> Craner, a Nevada doctor who has testified for scores of

people

> who claimed ill effects from mold, says the paper " has been used in

> every single mold case. The lawyer asks, 'Isn't it true the

American

> College of Occupational and Environmental Medicine concluded that

> there is no scientific evidence that mold causes any serious health

> effects?' "

>

> The result, Dr. Craner maintains, is that " a lot people with

> legitimate environmental health problems are losing their homes and

> their jobs because of legal decisions based on this so-

> called 'evidence-based' statement. "

>

> Dr. Craner says a majority of his work is on the plaintiff side and

> he is paid when he testifies, but he says he currently is an expert

> for the defense in a case where he concluded the plaintiffs' health

> issues weren't related to mold.

>

> Two other medical societies have also published statements on mold

> written, in part, by legal-defense experts. The societies didn't

> disclose this when they released the papers, although one later

> published a correction saying two authors served as expert

witnesses

> in mold litigation.

>

> READ MORE

>

>

> • Read the full text of Dr. Borak's September 2002 email to the

> leaders of the American College of Occupational and Environmental

> Medicine about his struggles in drafting their position paper on

> mold.

>

> • Read the official position statements of the American College of

> Occupational and Environmental Medicine and of the American Academy

> of Allergy, Asthma and Immunology, as posted on their Web sites.

>

> Mold reproduces through tiny spores. These can float into homes

> through windows and vent systems or be carried in on clothes or

> shoes. Indoors, mold grows when moisture is present.

>

> There's debate about how much this matters. Plaintiffs attribute

> ills ranging from asthma to cognitive problems to inhalation of

> mold. The Institute of Medicine, a largely federally funded

> nonprofit, reviewed the research in 2004 and said " studies have

> demonstrated adverse effects -- including immunotoxic, neurologic,

> respiratory and dermal responses -- after exposure to specific

> toxins, bacteria, molds or their products. " But it added that the

> dose required to cause adverse health effects hasn't been

> determined. The U.S. Centers for Disease Control and Prevention,

for

> its part, says on its Web site that mold can cause wheezing and eye

> or skin irritation, but a link to more serious conditions " has not

> been proven. "

>

> 'Highly Unlikely'

>

> The ACOEM paper goes further. It says not only is there no evidence

> indoor mold causes serious health effects, but even if mold

produced

> toxic substances, it's " highly unlikely at best " that anyone could

> inhale enough to cause a problem. The paper reaches this conclusion

> by extrapolating from animal studies in which rodents' throats were

> injected with molds.

>

> The paper's authors say their conclusions are validated by the

> Institute of Medicine's paper. But the author of the Institute

> paper's mold toxicity chapter, Harriett Ammann, disagrees, and

> criticizes the ACOEM paper's methodology: " They took hypothetical

> exposure and hypothetical toxicity and jumped to the conclusion

> there is nothing there. "

>

> Dr. Ammann, a recently retired toxicologist for Washington state's

> health department, recently helped the plaintiff side in a mold

> case. She says this was the only time she has done so for pay. In

> the Fraser lawsuit in New York, after the judge barred testimony

> that mold caused health problems, Dr. Ammann, on her own and

without

> pay, provided an affidavit filed with the appellate court saying

the

> judge misinterpreted the research.

>

> The ACOEM, a society of more than 5,000 specialists who investigate

> indoor health hazards and treat patients with related illnesses,

> first moved to develop a position paper on mold in early 2002. Dean

> Grove, then the medical society's president, asked the head of its

> council on scientific affairs, Yale medical professor

> Borak, to set the process in motion.

>

> He turned to a retired deputy director of the National Institute

for

> Occupational Safety and Health -- part of the CDC -- to spearhead

> the project. Dr. Borak says he wanted someone with " no established

> background record of litigation related to mold. "

>

> For the Defense

>

> The person he chose, Hardin, says he hadn't worked on any

mold

> lawsuit at that point, though he was a consultant on other matters

> for GlobalTox Inc., a firm that regularly worked for the defense in

> mold cases. And Dr. Hardin says he consulted for the defense in a

> mold case while he was helping write the ACOEM paper.

>

> In a Feb. 27, 2002, email, Dr. Borak told Dr. Hardin: " That

position

> paper would be prepared by you and your GlobalTox colleagues. " Dr.

> Borak says he believes he didn't know at the time that GlobalTox

did

> mold defense work.

>

> A GlobalTox colleague who aided Dr. Hardin was Bruce Kelman, now

> president of the firm, which recently changed its name to Veritox

> Inc. Drs. Kelman and Hardin, now principals at the firm and

entitled

> to a share of its profits, were two of the ACOEM paper's three

> authors. They are paid $375 to $500 an hour for work on mold cases,

> court records say.

>

> EXPERT WITNESSES

>

>

> • The Situation: Mold defendants rely on medical-society position

> papers that reject a link to serious ills, but papers were written

> by scientists who often work for defense side in mold cases.

>

> • The Debate: Whether courts get accurate or skewed view of

possible

> health effects of indoor mold.

>

> • What's at Stake: Outcome of widespread litigation over mold.

>

> The paper's third author was Saxon, then chief of clinical

> immunology and allergy at the medical school of the University of

> California, Los Angeles. He, too, has served as a defense expert in

> numerous mold suits. Dr. Saxon says he is paid $510 an hour for his

> help. If called to testify in court, his rate rises to $720 an

hour,

> according to a deposition he gave.

>

> Until he retired from UCLA in September, money he earned as a legal-

> defense expert was paid to the university, and he says UCLA then

> gave him a little less than half of it. Dr. Saxon estimates he

> generates $250,000 to $500,000 a year from expert defense work,

> which includes non-mold cases.

>

> The ACOEM knew about mold defense work by the authors of its paper.

> Dr. Hardin informed the society in a Sept. 23, 2002, document under

> his letterhead. Labeled " confidential " and " share only with the

> ACOEM board of directors, " it told of his work as a defense expert

> on one mold case.

>

> The letter said the other two authors, Drs. Saxon and Kelman, " have

> been retained by both the defense and plaintiff bar in litigation

> relating to indoor mold. " Both say they work mostly for the defense

> in mold cases.

>

> Internal ACOEM documents indicate that as the paper was being

> written in August 2002, there was concern within the society that

> the paper was too friendly to defense interests. Its authors were

> asked to modify the first draft's tone " because of the concern

about

> possible misinterpretation of 'buzz words' and phrases such

> as 'belief system,' 'adherents may claim,' 'supposed

> hypersensitivity,' and 'alleged disorder,' " according to a June

2002

> email to Dr. Hardin from the society's communications director.

(The

> email was obtained by a plaintiff's attorney in a mold case,

> Kahn.)

>

> Dr. Borak, the head of the society's council on scientific affairs,

> suggested sending a draft for review to one particular mold

> authority, Hodgson, director of the occupational safety and

> health program at the U.S. Veterans Health Administration. Dr.

> Hardin objected. He said it would be " inappropriate to add ad hoc

> reviewers who are highly visible advocates for a point of view the

> draft position paper analyzes and finds lacking. " The draft

> ultimately wasn't sent.

>

> 'A Defense Argument'

>

> In September 2002, Dr. Borak emailed colleagues that " I am having

> quite a challenge in finding an acceptable path for the proposed

> position paper on mold. " He said several reviewers " find the

current

> version, much revised, to still be a defense argument. "

>

> The society released a paper two months later, and its authors, as

> well as ACOEM officials, say it accurately reflects the science on

> indoor mold exposure. The authors' " views, if prejudicial, were

> removed, " Dr. Borak says. " It went through a dramatic change of top-

> heavy peer reviews. " He says objections come mainly from " activist

> litigants " who find it " annoying. "

>

> Drs. Hardin and Kelman say the paper has been controversial because

> it challenged " a belief system " that mold can be toxic indoors. " A

> belief system is built up and there is anger when the science

> doesn't support that belief system, " Dr. Kelman says.

>

> The Manhattan Institute, a conservative think tank, paid Veritox

> $40,000 to prepare a lay version of the paper. That version

> said " the notion that 'toxic mold' is an insidious,

secret 'killer,'

> as so many media reports and trial lawyers would claim, is 'junk

> science' unsupported by actual scientific study. " Its authors were

> the three writers of the longer paper plus a fourth, who also is a

> principal at Veritox.

>

> Lawyers defending mold suits also cite a position paper from the

> American Academy of Allergy, Asthma and Immunology. This paper says

> it concurs with the ACOEM that it is highly unlikely enough

> mycotoxins could be inhaled to lead to toxic health effects.

>

> Among the academy paper's five authors is Dr. Saxon. Another, Abba

> Terr, a San Francisco immunologist, has worked as a defense expert

> in mold cases. The academy published the paper in its Journal of

> Allergy and Clinical Immunology last February, not citing the mold-

> defense work of either man. The publication later ran a correction

> disclosing their litigation work.

>

> The academy's president says officials were aware Dr. Saxon was an

> expert witness. " We should have published their [disclosure]

> statements with the paper, " says the official, Platts-Mills.

> He says the lapse resulted from a variety of factors, including

> confusion about whose responsibility the disclosure was.

>

> Unhappy Author

>

> A third author of the academy's paper, Jay Portnoy, chief of

> allergy, asthma and immunology at the Children's Mercy Hospital in

> Kansas City, Mo., says he " felt that there was an agenda " -- the

> effort " seemed very biased toward denying the possibility of there

> being harmful effects from mold on human health. " He says he

> considered removing his name from the paper, but it was published

> before he could decide.

>

> Dr. Portnoy says a section he contributed was rewritten by Dr.

Saxon

> to be " a lot more negative. " He says the paper wrongly says mold

> isn't proven to cause allergic rhinitis, with symptoms like

> wheezing, sore throat and sneezing. Dr. Saxon denies the authors

had

> a bias but says they applied a high standard for proving mold

causes

> a particular effect. He says he didn't skew the content of Dr.

> Portnoy's section but rewrote it because it was " too diffuse. " Dr.

> Terr in San Francisco didn't return a call seeking comment.

>

> In New York, the Frasers are appealing the refusal of the trial

> judge, state Supreme Court Justice Shirley Werner Kornreich, to let

> their expert testify that indoor mold caused their health

> complaints. The Frasers had moved into the East Side Manhattan

> apartment in 1996. Their 2002 suit said they repeatedly complained

> to the co-op's board of dampness and leaks as their health

> deteriorated.

>

> Their appeal attacks the credibility of mold position papers

drafted

> by scientists who work for defendants. " What you have here is

> defense experts authoring papers under an official guise, " says

> their attorney, Eilender. Justice Kornreich declined to

> comment.

>

> Write to Armstrong at david.armstrong@...

>

[Guest guest]

Way to go!! This is excellent news!!

> >

> > Court of Opinion

> > Amid Suits Over Mold,

> > Experts Wear Two Hats

> >

> > Authors of Science Paper

> > Often Cited by Defense

> > Also Help in Litigation

> >

> > By DAVID ARMSTRONG

> > January 9, 2007; Page A1

> >

> > Soon after moving into a New York City apartment, Colin and

Pamela

> > Fraser say, they began to suffer headaches, rashes, respiratory

> > infections and fatigue. They attributed it to mold.

> >

> > But their lawsuit against the cooperative that owns the building

> hit

> > a roadblock when the court wouldn't let their medical expert

> testify

> > that mold caused their problems. This is " unsupported by the

> > scientific literature, " the state trial judge said.

> >

> > She relied in part on a position paper from the American College

of

> > Occupational and Environmental Medicine, or ACOEM. Citing a

> > substance some molds produce called mycotoxins, the paper

> > said " scientific evidence does not support the proposition that

> > human health has been adversely affected by inhaled mycotoxins in

> > the home, school, or office environment. "

> >

> >

> > The paper has become a key defense tool wielded by builders,

> > landlords and insurers in litigation. It has also been used to

> > assuage fears of parents following discovery of mold in schools.

> One

> > point that rarely emerges in these cases: The paper was written

by

> > people who regularly are paid experts for the defense side in

mold

> > litigation.

> >

> > The ACOEM doesn't disclose this, nor did its paper. The

> professional

> > society's president, Tee Guidotti, says no disclosure is needed

> > because the paper represents the consensus of its membership and

is

> > a statement from the society, not the individual authors.

> >

> > The dual roles show how conflicts of interest can color debate on

> > emerging health issues and influence litigation related to it.

Mold

> > has been a contentious matter since a Texas jury in 2001 awarded

> > $32.1 million to a family whose home was mold-infested. That

award,

> > later reduced, and a couple of mold suits filed by famous people

> > like Ed McMahon and Brockovich helped trigger a surge in

mold

> > litigation. Insurers and builders worried it would become a

> > liability disaster for them on the scale of asbestos.

> >

> > The number of suits hasn't been as big as anticipated. One reason

> > appears to be the insurers' success in getting many states to

> > exclude mold coverage from homeowner's-insurance policies. But

also

> > helping turn the tide, lawyers and doctors say, is the ACOEM

> report.

> > Building groups and the U.S. Chamber of Commerce have cited it to

> > rebut the notion that mold in the home can be toxic.

> >

> > Craner, a Nevada doctor who has testified for scores of

> people

> > who claimed ill effects from mold, says the paper " has been used

in

> > every single mold case. The lawyer asks, 'Isn't it true the

> American

> > College of Occupational and Environmental Medicine concluded that

> > there is no scientific evidence that mold causes any serious

health

> > effects?' "

> >

> > The result, Dr. Craner maintains, is that " a lot people with

> > legitimate environmental health problems are losing their homes

and

> > their jobs because of legal decisions based on this so-

> > called 'evidence-based' statement. "

> >

> > Dr. Craner says a majority of his work is on the plaintiff side

and

> > he is paid when he testifies, but he says he currently is an

expert

> > for the defense in a case where he concluded the plaintiffs'

health

> > issues weren't related to mold.

> >

> > Two other medical societies have also published statements on

mold

> > written, in part, by legal-defense experts. The societies didn't

> > disclose this when they released the papers, although one later

> > published a correction saying two authors served as expert

> witnesses

> > in mold litigation.

> >

> > READ MORE

> >

> >

> > • Read the full text of Dr. Borak's September 2002 email to the

> > leaders of the American College of Occupational and Environmental

> > Medicine about his struggles in drafting their position paper on

> > mold.

> >

> > • Read the official position statements of the American College

of

> > Occupational and Environmental Medicine and of the American

Academy

> > of Allergy, Asthma and Immunology, as posted on their Web sites.

> >

> > Mold reproduces through tiny spores. These can float into homes

> > through windows and vent systems or be carried in on clothes or

> > shoes. Indoors, mold grows when moisture is present.

> >

> > There's debate about how much this matters. Plaintiffs attribute

> > ills ranging from asthma to cognitive problems to inhalation of

> > mold. The Institute of Medicine, a largely federally funded

> > nonprofit, reviewed the research in 2004 and said " studies have

> > demonstrated adverse effects -- including immunotoxic,

neurologic,

> > respiratory and dermal responses -- after exposure to specific

> > toxins, bacteria, molds or their products. " But it added that the

> > dose required to cause adverse health effects hasn't been

> > determined. The U.S. Centers for Disease Control and Prevention,

> for

> > its part, says on its Web site that mold can cause wheezing and

eye

> > or skin irritation, but a link to more serious conditions " has

not

> > been proven. "

> >

> > 'Highly Unlikely'

> >

> > The ACOEM paper goes further. It says not only is there no

evidence

> > indoor mold causes serious health effects, but even if mold

> produced

> > toxic substances, it's " highly unlikely at best " that anyone

could

> > inhale enough to cause a problem. The paper reaches this

conclusion

> > by extrapolating from animal studies in which rodents' throats

were

> > injected with molds.

> >

> > The paper's authors say their conclusions are validated by the

> > Institute of Medicine's paper. But the author of the Institute

> > paper's mold toxicity chapter, Harriett Ammann, disagrees, and

> > criticizes the ACOEM paper's methodology: " They took hypothetical

> > exposure and hypothetical toxicity and jumped to the conclusion

> > there is nothing there. "

> >

> > Dr. Ammann, a recently retired toxicologist for Washington

state's

> > health department, recently helped the plaintiff side in a mold

> > case. She says this was the only time she has done so for pay. In

> > the Fraser lawsuit in New York, after the judge barred testimony

> > that mold caused health problems, Dr. Ammann, on her own and

> without

> > pay, provided an affidavit filed with the appellate court saying

> the

> > judge misinterpreted the research.

> >

> > The ACOEM, a society of more than 5,000 specialists who

investigate

> > indoor health hazards and treat patients with related illnesses,

> > first moved to develop a position paper on mold in early 2002.

Dean

> > Grove, then the medical society's president, asked the head of

its

> > council on scientific affairs, Yale medical professor

> > Borak, to set the process in motion.

> >

> > He turned to a retired deputy director of the National Institute

> for

> > Occupational Safety and Health -- part of the CDC -- to spearhead

> > the project. Dr. Borak says he wanted someone with " no

established

> > background record of litigation related to mold. "

> >

> > For the Defense

> >

> > The person he chose, Hardin, says he hadn't worked on any

> mold

> > lawsuit at that point, though he was a consultant on other

matters

> > for GlobalTox Inc., a firm that regularly worked for the defense

in

> > mold cases. And Dr. Hardin says he consulted for the defense in a

> > mold case while he was helping write the ACOEM paper.

> >

> > In a Feb. 27, 2002, email, Dr. Borak told Dr. Hardin: " That

> position

> > paper would be prepared by you and your GlobalTox colleagues. "

Dr.

> > Borak says he believes he didn't know at the time that GlobalTox

> did

> > mold defense work.

> >

> > A GlobalTox colleague who aided Dr. Hardin was Bruce Kelman, now

> > president of the firm, which recently changed its name to Veritox

> > Inc. Drs. Kelman and Hardin, now principals at the firm and

> entitled

> > to a share of its profits, were two of the ACOEM paper's three

> > authors. They are paid $375 to $500 an hour for work on mold

cases,

> > court records say.

> >

> > EXPERT WITNESSES

> >

> >

> > • The Situation: Mold defendants rely on medical-society position

> > papers that reject a link to serious ills, but papers were

written

> > by scientists who often work for defense side in mold cases.

> >

> > • The Debate: Whether courts get accurate or skewed view of

> possible

> > health effects of indoor mold.

> >

> > • What's at Stake: Outcome of widespread litigation over mold.

> >

> > The paper's third author was Saxon, then chief of clinical

> > immunology and allergy at the medical school of the University of

> > California, Los Angeles. He, too, has served as a defense expert

in

> > numerous mold suits. Dr. Saxon says he is paid $510 an hour for

his

> > help. If called to testify in court, his rate rises to $720 an

> hour,

> > according to a deposition he gave.

> >

> > Until he retired from UCLA in September, money he earned as a

legal-

> > defense expert was paid to the university, and he says UCLA then

> > gave him a little less than half of it. Dr. Saxon estimates he

> > generates $250,000 to $500,000 a year from expert defense work,

> > which includes non-mold cases.

> >

> > The ACOEM knew about mold defense work by the authors of its

paper.

> > Dr. Hardin informed the society in a Sept. 23, 2002, document

under

> > his letterhead. Labeled " confidential " and " share only with the

> > ACOEM board of directors, " it told of his work as a defense

expert

> > on one mold case.

> >

> > The letter said the other two authors, Drs. Saxon and

Kelman, " have

> > been retained by both the defense and plaintiff bar in litigation

> > relating to indoor mold. " Both say they work mostly for the

defense

> > in mold cases.

> >

> > Internal ACOEM documents indicate that as the paper was being

> > written in August 2002, there was concern within the society that

> > the paper was too friendly to defense interests. Its authors were

> > asked to modify the first draft's tone " because of the concern

> about

> > possible misinterpretation of 'buzz words' and phrases such

> > as 'belief system,' 'adherents may claim,' 'supposed

> > hypersensitivity,' and 'alleged disorder,' " according to a June

> 2002

> > email to Dr. Hardin from the society's communications director.

> (The

> > email was obtained by a plaintiff's attorney in a mold case,

> > Kahn.)

> >

> > Dr. Borak, the head of the society's council on scientific

affairs,

> > suggested sending a draft for review to one particular mold

> > authority, Hodgson, director of the occupational safety

and

> > health program at the U.S. Veterans Health Administration. Dr.

> > Hardin objected. He said it would be " inappropriate to add ad hoc

> > reviewers who are highly visible advocates for a point of view

the

> > draft position paper analyzes and finds lacking. " The draft

> > ultimately wasn't sent.

> >

> > 'A Defense Argument'

> >

> > In September 2002, Dr. Borak emailed colleagues that " I am having

> > quite a challenge in finding an acceptable path for the proposed

> > position paper on mold. " He said several reviewers " find the

> current

> > version, much revised, to still be a defense argument. "

> >

> > The society released a paper two months later, and its authors,

as

> > well as ACOEM officials, say it accurately reflects the science

on

> > indoor mold exposure. The authors' " views, if prejudicial, were

> > removed, " Dr. Borak says. " It went through a dramatic change of

top-

> > heavy peer reviews. " He says objections come mainly

from " activist

> > litigants " who find it " annoying. "

> >

> > Drs. Hardin and Kelman say the paper has been controversial

because

> > it challenged " a belief system " that mold can be toxic

indoors. " A

> > belief system is built up and there is anger when the science

> > doesn't support that belief system, " Dr. Kelman says.

> >

> > The Manhattan Institute, a conservative think tank, paid Veritox

> > $40,000 to prepare a lay version of the paper. That version

> > said " the notion that 'toxic mold' is an insidious,

> secret 'killer,'

> > as so many media reports and trial lawyers would claim, is 'junk

> > science' unsupported by actual scientific study. " Its authors

were

> > the three writers of the longer paper plus a fourth, who also is

a

> > principal at Veritox.

> >

> > Lawyers defending mold suits also cite a position paper from the

> > American Academy of Allergy, Asthma and Immunology. This paper

says

> > it concurs with the ACOEM that it is highly unlikely enough

> > mycotoxins could be inhaled to lead to toxic health effects.

> >

> > Among the academy paper's five authors is Dr. Saxon. Another,

Abba

> > Terr, a San Francisco immunologist, has worked as a defense

expert

> > in mold cases. The academy published the paper in its Journal of

> > Allergy and Clinical Immunology last February, not citing the

mold-

> > defense work of either man. The publication later ran a

correction

> > disclosing their litigation work.

> >

> > The academy's president says officials were aware Dr. Saxon was

an

> > expert witness. " We should have published their [disclosure]

> > statements with the paper, " says the official, Platts-

Mills.

> > He says the lapse resulted from a variety of factors, including

> > confusion about whose responsibility the disclosure was.

> >

> > Unhappy Author

> >

> > A third author of the academy's paper, Jay Portnoy, chief of

> > allergy, asthma and immunology at the Children's Mercy Hospital

in

> > Kansas City, Mo., says he " felt that there was an agenda " -- the

> > effort " seemed very biased toward denying the possibility of

there

> > being harmful effects from mold on human health. " He says he

> > considered removing his name from the paper, but it was published

> > before he could decide.

> >

> > Dr. Portnoy says a section he contributed was rewritten by Dr.

> Saxon

> > to be " a lot more negative. " He says the paper wrongly says mold

> > isn't proven to cause allergic rhinitis, with symptoms like

> > wheezing, sore throat and sneezing. Dr. Saxon denies the authors

> had

> > a bias but says they applied a high standard for proving mold

> causes

> > a particular effect. He says he didn't skew the content of Dr.

> > Portnoy's section but rewrote it because it was " too diffuse. "

Dr.

> > Terr in San Francisco didn't return a call seeking comment.

> >

> > In New York, the Frasers are appealing the refusal of the trial

> > judge, state Supreme Court Justice Shirley Werner Kornreich, to

let

> > their expert testify that indoor mold caused their health

> > complaints. The Frasers had moved into the East Side Manhattan

> > apartment in 1996. Their 2002 suit said they repeatedly

complained

> > to the co-op's board of dampness and leaks as their health

> > deteriorated.

> >

> > Their appeal attacks the credibility of mold position papers

> drafted

> > by scientists who work for defendants. " What you have here is

> > defense experts authoring papers under an official guise, " says

> > their attorney, Eilender. Justice Kornreich declined to

> > comment.

> >

> > Write to Armstrong at david.armstrong@

> >

>

[Guest guest]

FOR THOSE OF YOU WHO MISSED THIS POST THIS MORNING......

--- In , " tigerpaw2c " <tigerpaw2c@...>

wrote:

>

> Court of Opinion

> Amid Suits Over Mold,

> Experts Wear Two Hats

>

> Authors of Science Paper

> Often Cited by Defense

> Also Help in Litigation

>

> By DAVID ARMSTRONG

> January 9, 2007; Page A1

>

> Soon after moving into a New York City apartment, Colin and Pamela

> Fraser say, they began to suffer headaches, rashes, respiratory

> infections and fatigue. They attributed it to mold.

>

> But their lawsuit against the cooperative that owns the building

hit

> a roadblock when the court wouldn't let their medical expert

testify

> that mold caused their problems. This is " unsupported by the

> scientific literature, " the state trial judge said.

>

> She relied in part on a position paper from the American College

of

> Occupational and Environmental Medicine, or ACOEM. Citing a

> substance some molds produce called mycotoxins, the paper

> said " scientific evidence does not support the proposition that

> human health has been adversely affected by inhaled mycotoxins in

> the home, school, or office environment. "

>

>

> The paper has become a key defense tool wielded by builders,

> landlords and insurers in litigation. It has also been used to

> assuage fears of parents following discovery of mold in schools.

One

> point that rarely emerges in these cases: The paper was written by

> people who regularly are paid experts for the defense side in mold

> litigation.

>

> The ACOEM doesn't disclose this, nor did its paper. The

professional

> society's president, Tee Guidotti, says no disclosure is needed

> because the paper represents the consensus of its membership and

is

> a statement from the society, not the individual authors.

>

> The dual roles show how conflicts of interest can color debate on

> emerging health issues and influence litigation related to it.

Mold

> has been a contentious matter since a Texas jury in 2001 awarded

> $32.1 million to a family whose home was mold-infested. That

award,

> later reduced, and a couple of mold suits filed by famous people

> like Ed McMahon and Brockovich helped trigger a surge in mold

> litigation. Insurers and builders worried it would become a

> liability disaster for them on the scale of asbestos.

>

> The number of suits hasn't been as big as anticipated. One reason

> appears to be the insurers' success in getting many states to

> exclude mold coverage from homeowner's-insurance policies. But

also

> helping turn the tide, lawyers and doctors say, is the ACOEM

report.

> Building groups and the U.S. Chamber of Commerce have cited it to

> rebut the notion that mold in the home can be toxic.

>

> Craner, a Nevada doctor who has testified for scores of

people

> who claimed ill effects from mold, says the paper " has been used

in

> every single mold case. The lawyer asks, 'Isn't it true the

American

> College of Occupational and Environmental Medicine concluded that

> there is no scientific evidence that mold causes any serious

health

> effects?' "

>

> The result, Dr. Craner maintains, is that " a lot people with

> legitimate environmental health problems are losing their homes

and

> their jobs because of legal decisions based on this so-

> called 'evidence-based' statement. "

>

> Dr. Craner says a majority of his work is on the plaintiff side

and

> he is paid when he testifies, but he says he currently is an

expert

> for the defense in a case where he concluded the plaintiffs'

health

> issues weren't related to mold.

>

> Two other medical societies have also published statements on mold

> written, in part, by legal-defense experts. The societies didn't

> disclose this when they released the papers, although one later

> published a correction saying two authors served as expert

witnesses

> in mold litigation.

>

> READ MORE

>

>

> • Read the full text of Dr. Borak's September 2002 email to the

> leaders of the American College of Occupational and Environmental

> Medicine about his struggles in drafting their position paper on

> mold.

>

> • Read the official position statements of the American College of

> Occupational and Environmental Medicine and of the American

Academy

> of Allergy, Asthma and Immunology, as posted on their Web sites.

>

> Mold reproduces through tiny spores. These can float into homes

> through windows and vent systems or be carried in on clothes or

> shoes. Indoors, mold grows when moisture is present.

>

> There's debate about how much this matters. Plaintiffs attribute

> ills ranging from asthma to cognitive problems to inhalation of

> mold. The Institute of Medicine, a largely federally funded

> nonprofit, reviewed the research in 2004 and said " studies have

> demonstrated adverse effects -- including immunotoxic, neurologic,

> respiratory and dermal responses -- after exposure to specific

> toxins, bacteria, molds or their products. " But it added that the

> dose required to cause adverse health effects hasn't been

> determined. The U.S. Centers for Disease Control and Prevention,

for

> its part, says on its Web site that mold can cause wheezing and

eye

> or skin irritation, but a link to more serious conditions " has not

> been proven. "

>

> 'Highly Unlikely'

>

> The ACOEM paper goes further. It says not only is there no

evidence

> indoor mold causes serious health effects, but even if mold

produced

> toxic substances, it's " highly unlikely at best " that anyone could

> inhale enough to cause a problem. The paper reaches this

conclusion

> by extrapolating from animal studies in which rodents' throats

were

> injected with molds.

>

> The paper's authors say their conclusions are validated by the

> Institute of Medicine's paper. But the author of the Institute

> paper's mold toxicity chapter, Harriett Ammann, disagrees, and

> criticizes the ACOEM paper's methodology: " They took hypothetical

> exposure and hypothetical toxicity and jumped to the conclusion

> there is nothing there. "

>

> Dr. Ammann, a recently retired toxicologist for Washington state's

> health department, recently helped the plaintiff side in a mold

> case. She says this was the only time she has done so for pay. In

> the Fraser lawsuit in New York, after the judge barred testimony

> that mold caused health problems, Dr. Ammann, on her own and

without

> pay, provided an affidavit filed with the appellate court saying

the

> judge misinterpreted the research.

>

> The ACOEM, a society of more than 5,000 specialists who

investigate

> indoor health hazards and treat patients with related illnesses,

> first moved to develop a position paper on mold in early 2002.

Dean

> Grove, then the medical society's president, asked the head of its

> council on scientific affairs, Yale medical professor

> Borak, to set the process in motion.

>

> He turned to a retired deputy director of the National Institute

for

> Occupational Safety and Health -- part of the CDC -- to spearhead

> the project. Dr. Borak says he wanted someone with " no established

> background record of litigation related to mold. "

>

> For the Defense

>

> The person he chose, Hardin, says he hadn't worked on any

mold

> lawsuit at that point, though he was a consultant on other matters

> for GlobalTox Inc., a firm that regularly worked for the defense

in

> mold cases. And Dr. Hardin says he consulted for the defense in a

> mold case while he was helping write the ACOEM paper.

>

> In a Feb. 27, 2002, email, Dr. Borak told Dr. Hardin: " That

position

> paper would be prepared by you and your GlobalTox colleagues. " Dr.

> Borak says he believes he didn't know at the time that GlobalTox

did

> mold defense work.

>

> A GlobalTox colleague who aided Dr. Hardin was Bruce Kelman, now

> president of the firm, which recently changed its name to Veritox

> Inc. Drs. Kelman and Hardin, now principals at the firm and

entitled

> to a share of its profits, were two of the ACOEM paper's three

> authors. They are paid $375 to $500 an hour for work on mold

cases,

> court records say.

>

> EXPERT WITNESSES

>

>

> • The Situation: Mold defendants rely on medical-society position

> papers that reject a link to serious ills, but papers were written

> by scientists who often work for defense side in mold cases.

>

> • The Debate: Whether courts get accurate or skewed view of

possible

> health effects of indoor mold.

>

> • What's at Stake: Outcome of widespread litigation over mold.

>

> The paper's third author was Saxon, then chief of clinical

> immunology and allergy at the medical school of the University of

> California, Los Angeles. He, too, has served as a defense expert

in

> numerous mold suits. Dr. Saxon says he is paid $510 an hour for

his

> help. If called to testify in court, his rate rises to $720 an

hour,

> according to a deposition he gave.

>

> Until he retired from UCLA in September, money he earned as a

legal-

> defense expert was paid to the university, and he says UCLA then

> gave him a little less than half of it. Dr. Saxon estimates he

> generates $250,000 to $500,000 a year from expert defense work,

> which includes non-mold cases.

>

> The ACOEM knew about mold defense work by the authors of its

paper.

> Dr. Hardin informed the society in a Sept. 23, 2002, document

under

> his letterhead. Labeled " confidential " and " share only with the

> ACOEM board of directors, " it told of his work as a defense expert

> on one mold case.

>

> The letter said the other two authors, Drs. Saxon and

Kelman, " have

> been retained by both the defense and plaintiff bar in litigation

> relating to indoor mold. " Both say they work mostly for the

defense

> in mold cases.

>

> Internal ACOEM documents indicate that as the paper was being

> written in August 2002, there was concern within the society that

> the paper was too friendly to defense interests. Its authors were

> asked to modify the first draft's tone " because of the concern

about

> possible misinterpretation of 'buzz words' and phrases such

> as 'belief system,' 'adherents may claim,' 'supposed

> hypersensitivity,' and 'alleged disorder,' " according to a June

2002

> email to Dr. Hardin from the society's communications director.

(The

> email was obtained by a plaintiff's attorney in a mold case,

> Kahn.)

>

> Dr. Borak, the head of the society's council on scientific

affairs,

> suggested sending a draft for review to one particular mold

> authority, Hodgson, director of the occupational safety

and

> health program at the U.S. Veterans Health Administration. Dr.

> Hardin objected. He said it would be " inappropriate to add ad hoc

> reviewers who are highly visible advocates for a point of view the

> draft position paper analyzes and finds lacking. " The draft

> ultimately wasn't sent.

>

> 'A Defense Argument'

>

> In September 2002, Dr. Borak emailed colleagues that " I am having

> quite a challenge in finding an acceptable path for the proposed

> position paper on mold. " He said several reviewers " find the

current

> version, much revised, to still be a defense argument. "

>

> The society released a paper two months later, and its authors, as

> well as ACOEM officials, say it accurately reflects the science on

> indoor mold exposure. The authors' " views, if prejudicial, were

> removed, " Dr. Borak says. " It went through a dramatic change of

top-

> heavy peer reviews. " He says objections come mainly from " activist

> litigants " who find it " annoying. "

>

> Drs. Hardin and Kelman say the paper has been controversial

because

> it challenged " a belief system " that mold can be toxic indoors. " A

> belief system is built up and there is anger when the science

> doesn't support that belief system, " Dr. Kelman says.

>

> The Manhattan Institute, a conservative think tank, paid Veritox

> $40,000 to prepare a lay version of the paper. That version

> said " the notion that 'toxic mold' is an insidious,

secret 'killer,'

> as so many media reports and trial lawyers would claim, is 'junk

> science' unsupported by actual scientific study. " Its authors were

> the three writers of the longer paper plus a fourth, who also is a

> principal at Veritox.

>

> Lawyers defending mold suits also cite a position paper from the

> American Academy of Allergy, Asthma and Immunology. This paper

says

> it concurs with the ACOEM that it is highly unlikely enough

> mycotoxins could be inhaled to lead to toxic health effects.

>

> Among the academy paper's five authors is Dr. Saxon. Another, Abba

> Terr, a San Francisco immunologist, has worked as a defense expert

> in mold cases. The academy published the paper in its Journal of

> Allergy and Clinical Immunology last February, not citing the mold-

> defense work of either man. The publication later ran a correction

> disclosing their litigation work.

>

> The academy's president says officials were aware Dr. Saxon was an

> expert witness. " We should have published their [disclosure]

> statements with the paper, " says the official, Platts-

Mills.

> He says the lapse resulted from a variety of factors, including

> confusion about whose responsibility the disclosure was.

>

> Unhappy Author

>

> A third author of the academy's paper, Jay Portnoy, chief of

> allergy, asthma and immunology at the Children's Mercy Hospital in

> Kansas City, Mo., says he " felt that there was an agenda " -- the

> effort " seemed very biased toward denying the possibility of there

> being harmful effects from mold on human health. " He says he

> considered removing his name from the paper, but it was published

> before he could decide.

>

> Dr. Portnoy says a section he contributed was rewritten by Dr.

Saxon

> to be " a lot more negative. " He says the paper wrongly says mold

> isn't proven to cause allergic rhinitis, with symptoms like

> wheezing, sore throat and sneezing. Dr. Saxon denies the authors

had

> a bias but says they applied a high standard for proving mold

causes

> a particular effect. He says he didn't skew the content of Dr.

> Portnoy's section but rewrote it because it was " too diffuse. " Dr.

> Terr in San Francisco didn't return a call seeking comment.

>

> In New York, the Frasers are appealing the refusal of the trial

> judge, state Supreme Court Justice Shirley Werner Kornreich, to

let

> their expert testify that indoor mold caused their health

> complaints. The Frasers had moved into the East Side Manhattan

> apartment in 1996. Their 2002 suit said they repeatedly complained

> to the co-op's board of dampness and leaks as their health

> deteriorated.

>

> Their appeal attacks the credibility of mold position papers

drafted

> by scientists who work for defendants. " What you have here is

> defense experts authoring papers under an official guise, " says

> their attorney, Eilender. Justice Kornreich declined to

> comment.

>

> Write to Armstrong at david.armstrong@...

>

[Guest guest]

--- In , " tigerpaw2c " <tigerpaw2c@...>

wrote:

>

> Court of Opinion

> Amid Suits Over Mold,

> Experts Wear Two Hats

>

> Authors of Science Paper

> Often Cited by Defense

> Also Help in Litigation

>

> By DAVID ARMSTRONG

> January 9, 2007; Page A1

>

> Soon after moving into a New York City apartment, Colin and Pamela

> Fraser say, they began to suffer headaches, rashes, respiratory

> infections and fatigue. They attributed it to mold.

>

> But their lawsuit against the cooperative that owns the building

hit

> a roadblock when the court wouldn't let their medical expert

testify

> that mold caused their problems. This is " unsupported by the

> scientific literature, " the state trial judge said.

>

> She relied in part on a position paper from the American College

of

> Occupational and Environmental Medicine, or ACOEM. Citing a

> substance some molds produce called mycotoxins, the paper

> said " scientific evidence does not support the proposition that

> human health has been adversely affected by inhaled mycotoxins in

> the home, school, or office environment. "

>

>

> The paper has become a key defense tool wielded by builders,

> landlords and insurers in litigation. It has also been used to

> assuage fears of parents following discovery of mold in schools.

One

> point that rarely emerges in these cases: The paper was written by

> people who regularly are paid experts for the defense side in mold

> litigation.

>

> The ACOEM doesn't disclose this, nor did its paper. The

professional

> society's president, Tee Guidotti, says no disclosure is needed

> because the paper represents the consensus of its membership and

is

> a statement from the society, not the individual authors.

>

> The dual roles show how conflicts of interest can color debate on

> emerging health issues and influence litigation related to it.

Mold

> has been a contentious matter since a Texas jury in 2001 awarded

> $32.1 million to a family whose home was mold-infested. That

award,

> later reduced, and a couple of mold suits filed by famous people

> like Ed McMahon and Brockovich helped trigger a surge in mold

> litigation. Insurers and builders worried it would become a

> liability disaster for them on the scale of asbestos.

>

> The number of suits hasn't been as big as anticipated. One reason

> appears to be the insurers' success in getting many states to

> exclude mold coverage from homeowner's-insurance policies. But

also

> helping turn the tide, lawyers and doctors say, is the ACOEM

report.

> Building groups and the U.S. Chamber of Commerce have cited it to

> rebut the notion that mold in the home can be toxic.

>

> Craner, a Nevada doctor who has testified for scores of

people

> who claimed ill effects from mold, says the paper " has been used

in

> every single mold case. The lawyer asks, 'Isn't it true the

American

> College of Occupational and Environmental Medicine concluded that

> there is no scientific evidence that mold causes any serious

health

> effects?' "

>

> The result, Dr. Craner maintains, is that " a lot people with

> legitimate environmental health problems are losing their homes

and

> their jobs because of legal decisions based on this so-

> called 'evidence-based' statement. "

>

> Dr. Craner says a majority of his work is on the plaintiff side

and

> he is paid when he testifies, but he says he currently is an

expert

> for the defense in a case where he concluded the plaintiffs'

health

> issues weren't related to mold.

>

> Two other medical societies have also published statements on mold

> written, in part, by legal-defense experts. The societies didn't

> disclose this when they released the papers, although one later

> published a correction saying two authors served as expert

witnesses

> in mold litigation.

>

> READ MORE

>

>

> • Read the full text of Dr. Borak's September 2002 email to the

> leaders of the American College of Occupational and Environmental

> Medicine about his struggles in drafting their position paper on

> mold.

>

> • Read the official position statements of the American College of

> Occupational and Environmental Medicine and of the American

Academy

> of Allergy, Asthma and Immunology, as posted on their Web sites.

>

> Mold reproduces through tiny spores. These can float into homes

> through windows and vent systems or be carried in on clothes or

> shoes. Indoors, mold grows when moisture is present.

>

> There's debate about how much this matters. Plaintiffs attribute

> ills ranging from asthma to cognitive problems to inhalation of

> mold. The Institute of Medicine, a largely federally funded

> nonprofit, reviewed the research in 2004 and said " studies have

> demonstrated adverse effects -- including immunotoxic, neurologic,

> respiratory and dermal responses -- after exposure to specific

> toxins, bacteria, molds or their products. " But it added that the

> dose required to cause adverse health effects hasn't been

> determined. The U.S. Centers for Disease Control and Prevention,

for

> its part, says on its Web site that mold can cause wheezing and

eye

> or skin irritation, but a link to more serious conditions " has not

> been proven. "

>

> 'Highly Unlikely'

>

> The ACOEM paper goes further. It says not only is there no

evidence

> indoor mold causes serious health effects, but even if mold

produced

> toxic substances, it's " highly unlikely at best " that anyone could

> inhale enough to cause a problem. The paper reaches this

conclusion

> by extrapolating from animal studies in which rodents' throats

were

> injected with molds.

>

> The paper's authors say their conclusions are validated by the

> Institute of Medicine's paper. But the author of the Institute

> paper's mold toxicity chapter, Harriett Ammann, disagrees, and

> criticizes the ACOEM paper's methodology: " They took hypothetical

> exposure and hypothetical toxicity and jumped to the conclusion

> there is nothing there. "

>

> Dr. Ammann, a recently retired toxicologist for Washington state's

> health department, recently helped the plaintiff side in a mold

> case. She says this was the only time she has done so for pay. In

> the Fraser lawsuit in New York, after the judge barred testimony

> that mold caused health problems, Dr. Ammann, on her own and

without

> pay, provided an affidavit filed with the appellate court saying

the

> judge misinterpreted the research.

>

> The ACOEM, a society of more than 5,000 specialists who

investigate

> indoor health hazards and treat patients with related illnesses,

> first moved to develop a position paper on mold in early 2002.

Dean

> Grove, then the medical society's president, asked the head of its

> council on scientific affairs, Yale medical professor

> Borak, to set the process in motion.

>

> He turned to a retired deputy director of the National Institute

for

> Occupational Safety and Health -- part of the CDC -- to spearhead

> the project. Dr. Borak says he wanted someone with " no established

> background record of litigation related to mold. "

>

> For the Defense

>

> The person he chose, Hardin, says he hadn't worked on any

mold

> lawsuit at that point, though he was a consultant on other matters

> for GlobalTox Inc., a firm that regularly worked for the defense

in

> mold cases. And Dr. Hardin says he consulted for the defense in a

> mold case while he was helping write the ACOEM paper.

>

> In a Feb. 27, 2002, email, Dr. Borak told Dr. Hardin: " That

position

> paper would be prepared by you and your GlobalTox colleagues. " Dr.

> Borak says he believes he didn't know at the time that GlobalTox

did

> mold defense work.

>

> A GlobalTox colleague who aided Dr. Hardin was Bruce Kelman, now

> president of the firm, which recently changed its name to Veritox

> Inc. Drs. Kelman and Hardin, now principals at the firm and

entitled

> to a share of its profits, were two of the ACOEM paper's three

> authors. They are paid $375 to $500 an hour for work on mold

cases,

> court records say.

>

> EXPERT WITNESSES

>

>

> • The Situation: Mold defendants rely on medical-society position

> papers that reject a link to serious ills, but papers were written

> by scientists who often work for defense side in mold cases.

>

> • The Debate: Whether courts get accurate or skewed view of

possible

> health effects of indoor mold.

>

> • What's at Stake: Outcome of widespread litigation over mold.

>

> The paper's third author was Saxon, then chief of clinical

> immunology and allergy at the medical school of the University of

> California, Los Angeles. He, too, has served as a defense expert

in

> numerous mold suits. Dr. Saxon says he is paid $510 an hour for

his

> help. If called to testify in court, his rate rises to $720 an

hour,

> according to a deposition he gave.

>

> Until he retired from UCLA in September, money he earned as a

legal-

> defense expert was paid to the university, and he says UCLA then

> gave him a little less than half of it. Dr. Saxon estimates he

> generates $250,000 to $500,000 a year from expert defense work,

> which includes non-mold cases.

>

> The ACOEM knew about mold defense work by the authors of its

paper.

> Dr. Hardin informed the society in a Sept. 23, 2002, document

under

> his letterhead. Labeled " confidential " and " share only with the

> ACOEM board of directors, " it told of his work as a defense expert

> on one mold case.

>

> The letter said the other two authors, Drs. Saxon and

Kelman, " have

> been retained by both the defense and plaintiff bar in litigation

> relating to indoor mold. " Both say they work mostly for the

defense

> in mold cases.

>

> Internal ACOEM documents indicate that as the paper was being

> written in August 2002, there was concern within the society that

> the paper was too friendly to defense interests. Its authors were

> asked to modify the first draft's tone " because of the concern

about

> possible misinterpretation of 'buzz words' and phrases such

> as 'belief system,' 'adherents may claim,' 'supposed

> hypersensitivity,' and 'alleged disorder,' " according to a June

2002

> email to Dr. Hardin from the society's communications director.

(The

> email was obtained by a plaintiff's attorney in a mold case,

> Kahn.)

>

> Dr. Borak, the head of the society's council on scientific

affairs,

> suggested sending a draft for review to one particular mold

> authority, Hodgson, director of the occupational safety

and

> health program at the U.S. Veterans Health Administration. Dr.

> Hardin objected. He said it would be " inappropriate to add ad hoc

> reviewers who are highly visible advocates for a point of view the

> draft position paper analyzes and finds lacking. " The draft

> ultimately wasn't sent.

>

> 'A Defense Argument'

>

> In September 2002, Dr. Borak emailed colleagues that " I am having

> quite a challenge in finding an acceptable path for the proposed

> position paper on mold. " He said several reviewers " find the

current

> version, much revised, to still be a defense argument. "

>

> The society released a paper two months later, and its authors, as

> well as ACOEM officials, say it accurately reflects the science on

> indoor mold exposure. The authors' " views, if prejudicial, were

> removed, " Dr. Borak says. " It went through a dramatic change of

top-

> heavy peer reviews. " He says objections come mainly from " activist

> litigants " who find it " annoying. "

>

> Drs. Hardin and Kelman say the paper has been controversial

because

> it challenged " a belief system " that mold can be toxic indoors. " A

> belief system is built up and there is anger when the science

> doesn't support that belief system, " Dr. Kelman says.

>

> The Manhattan Institute, a conservative think tank, paid Veritox

> $40,000 to prepare a lay version of the paper. That version

> said " the notion that 'toxic mold' is an insidious,

secret 'killer,'

> as so many media reports and trial lawyers would claim, is 'junk

> science' unsupported by actual scientific study. " Its authors were

> the three writers of the longer paper plus a fourth, who also is a

> principal at Veritox.

>

> Lawyers defending mold suits also cite a position paper from the

> American Academy of Allergy, Asthma and Immunology. This paper

says

> it concurs with the ACOEM that it is highly unlikely enough

> mycotoxins could be inhaled to lead to toxic health effects.

>

> Among the academy paper's five authors is Dr. Saxon. Another, Abba

> Terr, a San Francisco immunologist, has worked as a defense expert

> in mold cases. The academy published the paper in its Journal of

> Allergy and Clinical Immunology last February, not citing the mold-

> defense work of either man. The publication later ran a correction

> disclosing their litigation work.

>

> The academy's president says officials were aware Dr. Saxon was an

> expert witness. " We should have published their [disclosure]

> statements with the paper, " says the official, Platts-

Mills.

> He says the lapse resulted from a variety of factors, including

> confusion about whose responsibility the disclosure was.

>

> Unhappy Author

>

> A third author of the academy's paper, Jay Portnoy, chief of

> allergy, asthma and immunology at the Children's Mercy Hospital in

> Kansas City, Mo., says he " felt that there was an agenda " -- the

> effort " seemed very biased toward denying the possibility of there

> being harmful effects from mold on human health. " He says he

> considered removing his name from the paper, but it was published

> before he could decide.

>

> Dr. Portnoy says a section he contributed was rewritten by Dr.

Saxon

> to be " a lot more negative. " He says the paper wrongly says mold

> isn't proven to cause allergic rhinitis, with symptoms like

> wheezing, sore throat and sneezing. Dr. Saxon denies the authors

had

> a bias but says they applied a high standard for proving mold

causes

> a particular effect. He says he didn't skew the content of Dr.

> Portnoy's section but rewrote it because it was " too diffuse. " Dr.

> Terr in San Francisco didn't return a call seeking comment.

>

> In New York, the Frasers are appealing the refusal of the trial

> judge, state Supreme Court Justice Shirley Werner Kornreich, to

let

> their expert testify that indoor mold caused their health

> complaints. The Frasers had moved into the East Side Manhattan

> apartment in 1996. Their 2002 suit said they repeatedly complained

> to the co-op's board of dampness and leaks as their health

> deteriorated.

>

> Their appeal attacks the credibility of mold position papers

drafted

> by scientists who work for defendants. " What you have here is

> defense experts authoring papers under an official guise, " says

> their attorney, Eilender. Justice Kornreich declined to

> comment.

>

> Write to Armstrong at david.armstrong@...

>