In The Face of Challenge, ACOEM Pres Threatens To Take His Ball And Go Home

[Guest guest]

" We stand behind the conclusions of the statement. ACOEM

statements are reviewed on a five-year cycle. The 2002 mold

statement was scheduled for this year but given the

contentious climate, ACOEM is now considering postponing

the scheduled review for another year " Tee Guidotti, ACOEM President

Can One Position Paper Stop Mold Litigation? Not If Plaintiffs' Attorneys

Can Help It

By Correy E. son Staff writer

February 12, 2007

_www.lawyersusaonline.com_

(http://www.lawyersusaonline.com)

When mold litigation burst on the scene, experts predicted

the flurry of property damage and personal injury suits

would be the next big litigation trend.

But over the last few years, mold victories have been few

and far between.

One reason, according to plaintiffs' lawyers, is a certain

position paper from the American College of Occupational

and Environmental Medicine that states there is no evidence

that indoor mold causes serious health effects.

ACOEM represents more than 5,000 physicians and other

health care professionals specializing in the field of

occupational and environmental medicine, and issues reports

and papers on behalf of the group.

Now, the group is facing allegations of conflict of

interest, as media reports revealed that the authors of the

paper - without disclosure - were paid defense experts.

In a statement, ACOEM president Dr. Tee L. Guidotti said

that the organization's paper has attracted so much

attention because it was issued relatively early and put to

use by litigants.

" The reality is that there are rather few scientists who

embrace the theory of 'toxic mold.' The mainstream of

medical opinion does not. We stand behind the conclusions

of the statement while remaining open to new evidence in

the future. "

Meanwhile, plaintiffs' attorneys continue to battle the

paper and its impact in the courtroom.

" This paper is mentioned in every mold case, " said

Eilender, a New York plaintiffs' attorney who

recently had a case dismissed when a judge relied, in part,

upon the paper.

" That document has been the nemesis for many of us who are

practicing as plaintiffs' attorneys in this difficult

field, " said D. Witzer, an attorney in West

Hollywood, Calif. " For lesser experienced, lesser funded

practices, this document is a killer. "

But Boston toxic tort defense attorney Governo

defended the paper, citing other medical groups that have

reached similar conclusions, like the American Academy of

Pediatrics and the American Academy of Asthma, Allergy and

Immunology.

" It really is an unfair criticism to single out this paper,

especially when other organizations have come to the same

conclusions. "

Chilling effect

Plaintiffs' lawyers maintain that mold litigation should be

decided in a battle of the experts before a jury.

" There is a significant body of literature that comes to

the opposite conclusion the [organization's] paper

reaches, " Eilender, a partner at Jaroslawicz & Jaros,

said. " And a judge should let the issue go before a jury so

that they can evaluate the conflicting information. "

In Eilender's case, Colin and Pamela Fraser and their

infant daughter andra sued the board of directors of

their New York City co-op after suffering from respiratory

problems, rash and fatigue.

But after a 10-day Frye hearing, Judge Shirley Werner

Kornreich ruled that their expert's testimony was

inadmissible, relying in part upon the organization's

paper, " Adverse Human Health Effects Associated with Molds

in the Indoor Environment, " which was released in October

2002.

Judge Kornreich quoted the paper's conclusion

that " scientific evidence does not support the proposition

that human health has been adversely affected by inhaled

mycotoxins in the home, school, or office environment. "

Eilender has submitted a motion to renew and reargue, and

has also filed a notice to appeal, but her experience is

not an isolated event.

Part of the difficulty combating the paper is that " coming

under the aegis of such a respected organization, it takes

on a lot of weight, " explained Witzer.

His firm recently lost an admissibility hearing in

Manhattan Beach, Calif., when a judge refused to allow the

plaintiff's neurological experts testify.

Instead, the judge limited testimony to the plaintiff's

cough and skin rash, when she also suffered from

neurological and immunological problems, he said.

While his firm is appealing the ruling, Witzer expressed

concern about the cumulative effects of the paper.

" The chilling effect of this paper on thousands of

plaintiffs who aren't going to be able to find

representation or afford to appeal a dismissal or a ruling

excluding their experts is horrific, " he said.

Getting over it

The first hurdle for mold plaintiffs is getting their

expert testimony in.

The battle varies from state to state, given the varying

standards expert witnesses must meet, according to

Duffy, who has represented plaintiffs in individual and

class action mold cases across the country.

For example, " there is Frye and Daubert, but other states

have their own spin on things, like the modified Frye, or

the standard in Texas, " said Duffy, a partner at

Childress Duffy Goldblatt in Chicago. He said lawyers must

be mindful of the varying standards as they have subtle

differences - Daubert's " evidentiary reliability " standard

versus Frye's " generally accepted by the relevant

scientific community " formulation.

If plaintiffs can clear the admissibility hurdle, it sets

up the battle-of-the-experts their attorneys long for at

trial - and, as Witzer pointed out, it creates the

potential for settlement.

" When a judge makes the admissibility hearing prior to

trial and rules that the evidence and my doctors are coming

in, the defense gets worried, " he said.

Witzer, who has been developing mold cases since 2000,

negotiated a landmark $22.6 million settlement in a 2005

toxic mold case on behalf of a California couple who

claimed that moldy lumber severely injured their son.

If a case does proceed to trial, plaintiffs' attorneys can

attack the organization's paper on several levels, Duffy

said.

First, " you have to go after motivation on cross-

examination, " he said. " What is the motivation of the

individuals who wrote this paper? What are their

credentials, or lack thereof? "

Jury instructions always require jurors to give weight to

expert testimony, and the goal is to lighten the defense

load, so to speak, he said.

" Create a weight issue so that the jury accords their

experts little to no weight in their deliberations because

of bias, " he said.

The next step is to challenge the defense experts on the

paper's content by questioning their conclusions and also

offering your own expert testimony.

Of course, the credibility question can come back to haunt

you, Duffy noted, so try to ensure that your witnesses

exhibit less bias or prejudice in their own work.

One way to attack the content of the paper is to question

why it didn't include the results of other studies that

reached alternative conclusions, Witzer suggested.

" We are prepared on both fronts: to demonstrate the bias of

the authors and also that the study itself is impeachable, "

he said. " [We can attack it on the grounds that] it didn't

make reference to or acknowledge the peer-reviewed studies

which indicate the connection between mold and upper and

lower respiratory illness, as well as neurological and

pulmonary problems. "

You can obtain a copy of the report from the " Important

Documents " section of Lawyers USA's website:

www.lawyersusaonline.com

Questions or comments can be directed to the writer at:

_correy.stephenson@..._

(mailto:correy.stephenson@...)

MESSAGE ISSUED BY TEE GUIDOTTI, 2007 ACOEM PRESIDENT,

2/12/07 on the Occ-env-list-L/Flood Relief

" Mr. H aney assumes that the WSJ article fairly portrayed

our statement development process. It did not.

The issue at hand is not the pathogenicity of mold but the

unproven theory called “toxic mold,†as the statement makes

perfectly clear. See:

http://www.neutralsource.org/content/blog/list_posts/topic/1

5.

We stand behind the conclusions of the statement. ACOEM

statements are reviewed on a five-year cycle. The 2002 mold

statement was scheduled for this year but given the

contentious climate, ACOEM is now considering postponing

the scheduled review for another year.

Tee L. Guidotti, President

ACOEM "

Comment:

Real smart. When the President of an esteemed medical

association made up of 5000 members (membership must have

decreased for some odd reason, used to be 7000), is shown

that there is a grave and glaring scientific error within the writings of

the association of which he currently holds the helm, his

remedy to address the problem is to threaten to take his ball

and go home til next

year.

Be Afwaid! Be Vewey Afwaid!

" But the boy's remark, which had been heard by the

bystanders, was repeated over and over again until everyone

cried:

'The boy is right! The Emperor is naked! It's true!'

The Emperor realized that the people were right but could

not admit to that. He though it better to continue the

procession under the illusion that anyone who couldn't see

his clothes was either stupid or incompetent. And he stood

stiffly on his carriage, while behind him a page held his

imaginary mantle. "

Sharon Kramer