State High Court Rejects Mold Expert Opinion

Here's an interesting expert analysis that arises in the less common Frye context.  In Chesson v. Montgomery Mut. Ins. Co., No. 97 (Md., 9/24/13), the Maryland high court affirmed the exclusion of an expert's methodology for linking alleged mold exposure and the plaintiffs' illness; among other things, the approach failed to take into account the level of mold exposure plaintiffs experienced.

The case at hand originated in workers’ compensation claims filed by six employees of the Baltimore Washington Conference of the United Methodist Church. The employees claimed that they had sustained physical injury, specifically neurocognitive and musculoskeletal symptoms, as a result of exposure to mold in the Baltimore Washington Conference’s office. To prove causation, the employees proffered Dr. Ritchie Shoemaker as their expert. Montgomery Mutual, however,
sought to exclude Dr. Shoemaker under Frye (called Reed in this state), arguing that his methodology to determine causation was not generally accepted in the relevant scientific community.

After some procedural events, the lower court eventually held a Frye-Reed hearing, in which the judge considered whether the relevant scientific community generally accepted as reliable and
valid Dr. Shoemaker’s methodologies and theory that identified mold exposure as the cause
for the neurocognitive and musculoskeletal symptoms allegedly suffered by the employees.  At the hearing, Dr. Shoemaker testified that the indoor air of a water-damaged building known to contain mold caused neurocognitive and muscuoloskeletal symptoms. He based his opinion on something he called his “Repetitive Exposure Protocol,” in which he would identify the presence of mold in the building, through visual identification of mold, detecting a musty smell, or lab testing of a sample, such as a piece of drywall. The individual at issue would then be removed from the subject building and, for two weeks, receive a treatment to relieve the symptoms allegedly related to mold exposure, and then be returned to the subject building for three days, during which, he
opined, the individual would report that the symptoms had redeveloped.

The trial court allowed the testimony but the Court of Appeals held that Dr. Shoemaker’s testimony was not admissible under Frye-Reed, reasoning that his methodology was flawed and not generally accepted because it failed to account for the levels of mold exposure. The Court, moreover, concluded that based on an examination of relevant scientific journal articles that the scientific community remained uncertain as to Dr. Shoemaker’s techniques and conclusions.  The plaintiffs appealed.

The high court noted that in Maryland when an expert opinion is offered to support the existence of new or novel scientific theory or methodology, “the basis of that opinion must be shown to be generally accepted as reliable within the expert’s particular scientific field.” Reed v. State, 283 Md. 374, 381, 391 A.2d 364, 368 (1978), citing Frye v. United States, 293 F. 1013, 1014 (1923). The general acceptance test imposes a significant gate-keeping role on the judge to determine whether a scientific theory or methodology should be admitted for consideration by jury.  Moreover, validity and reliability are the linchpins of  the scientific method: validity, having been defined as the extent to which something measures what it purports to measure, and reliability, characterized as the ability of a measure to produce the same result each time it is applied to the same thing.

The court stressed that on cross-examination, Dr. Shoemaker admitted that he did not test any of the buildings, either the Baltimore Washington Conference’s office or any others in which an
individual resided or worked who underwent his “Repetitive Exposure Protocol,” to determine the level of mold exposure that an individual working or residing therein would have experienced. According to Dr. Shoemaker, the mere "identification" of mold in a building, even by the presence of a musty smell alone, was sufficient to conclude that an individual residing or working in that building inhaled mold that caused neurocognitive and musculoskeletal symptoms, without any further assessment of not only the level of mold, but also what other chemicals the plaintiff may have been exposed to.

Defendants called a Dr. Cheung who testified that Dr. Shoemaker’s “Repetitive Exposure Protocol”
was not generally accepted as valid in the relevant scientific community, not only because it was experimental as well as controversial in its “second tier” of biological markers approach and use of treatment drugs in an off-label fashion, as well as in its failure to account for stress levels in individuals, but also primarily because it failed to measure the levels of mold exposures by individuals in the water-damaged buildings. Mold exposure can be low to medium to high, he testified, and should include consideration of the pathways that mold must travel to reach an individual, such as the building’s ventilation system, walls, or ceiling, as well as the pressure or air flow of the building.  Dr. Cheung also testified to a survey that he had commissioned relative to whether Dr. Shoemaker’s diagnosis was generally accepted and found it was not.  Most importantly, Dr. Cheung testified regarding the absence of any study utilizing the scientific method that confirmed the relationship of mold exposure to neurocognitive and musculoskeletal symptoms.

The court also noted that other jurisdictions have determined that Dr. Shoemaker’s theory, based on his “Repetitive Exposure Protocol,” is neither generally accepted nor reliable. See Young v. Burton, 567 F. Supp. 2d 121, 130-31 (D.D.C. 2008) (also listing Virginia, Florida, and Alabama as jurisdictions rejecting Dr. Shoemaker’s theory).

The Court of Appeals agreed with the intermediate appeals court, finding that the expert's failure to account for the level of mold exposure was a fundamental flaw in his methodology .Without an expert's admissible opinion on causation, plaintiffs were unable to prove that mold in the walls of their office building was the cause of their neurocognitive and musculoskeletal symptoms.

 

Mold Economic Injury Claim Rejected

The issue of mold-related litigation remains of interest to our readers, perhaps even more so in the aftermath of the widespread damage from Sandy.  Recently a federal judge rejected claims alleging that Welk Resort San Diego allowed mold to grow in its rooms causing plaintiffs' "Platinum Points" time share currency to lose value as a result.  See Martinez v. The Welk Group Inc. et al., No. 3:09-cv-02883 (S.D. Cal.).

Plaintiff alleged economic damages stemming from defendants alleged failure to abate and disclose the presence of mold at the Welk Resort San Diego. (Younger readers may not recall, but born in a German speaking town in North Dakota in 1903, Mr. Lawrence Welk didn’t learn to speak English until he was 21. This gave him the accent that marked his signature line: “Wunnerful, wunnerful.”  His Lawrence Welk Show was cheerful and wholesome with bubbles, the music that Welk called “champagne music,” and a parade of smiling dancers, singers and musicians that older audiences loved.)

 Plaintiff purchased "Platinum Points" from Welk Resort Group, Inc. in 2007, which provided him with the opportunity to stay at Welk resorts around the world or at any other time-share resort that accepts such Platinum Points for vacation stays. At some point during the sales process, plaintiff allegedly asked, and the sales agent assured him the Resort was clean, safe, and well maintained. Plaintiff said he purchased his Platinum Points solely for the purpose of staying at the Welk Resort San Diego, which is located in Escondido, California, and has more than 650 units in three subdivisions: the Lawrence Welk Resort Villas, the Villas on the Green, and the Mountain Villas. During a visit to the Resort in 2009, plaintiff notified the front desk that his room smelled musty. Later in a utility closet, he found something that may have been mold, but he could not be certain. A neighbor later told him him that there was mold at the Resort.

Subsequent to his 2009 stay at the Resort, Plaintiff decided he would never use his points again—either at Welk or any other timeshare resort. Additionally, Plaintiff did not attempt, nor was he willing to attempt, to sell his Platinum Points to another individual, as he did not believe it would be "ethical" given his knowledge of the alleged "mold issues" at the Resort. Consequently, plaintiff claimed his Platinum Points have diminished in value.

Plaintiff sued for breach of contract, breach of fiduciary duty, negligence, nuisance, breach of the implied warranty of habitability, and for violations of California’s Unfair Competition Law (“UCL”).  (Earlier plaintiff's motion for class certification was rejected as the court determined that the claims were too individualized; Martinez’s reluctance to use his points was not typical of the  proposed class.)  Defendants then moved for summary judgment, contending that plaintiff could not prove he was injured as a result of defendants’ conduct.

Specifically, defendants contended that plaintiff offered no proof to support his contention that his
Platinum Points had diminished in value. In fact, plaintiff admits that when his Platinum Points “lost
value,” he meant they lost value to him because he was not using them.  In actuality, Welk Resort San Diego has maintained its premier rating since 2006, evidencing that Platinum Point Owners have maintained the same trading power since that time. Under this system, owners of Welk Platinum Points can exchange points for stays at non-Welk properties through a timeshare exchange company.  Therefore, defendants asserted that plaintiff’s damages were either “self-inflicted,”as he was unwilling to use his Platinum Points; or speculative, as he failed to present evidence of diminution of value.  In response, plaintiff alleged that his damages were not self-inflicted because he purchased the points specifically for the purpose of staying at Welk Resorts San Diego, and purchased the points specifically because he wanted to stay at a place that was clean, safe and well maintained.

To satisfy the damages element of a claim, a plaintiff must show appreciable and actual damages, that are clearly ascertainable in both their nature and origin. Here, however, plaintiff offered no evidence to rebut defendants’ proof that his Platinum Points currently have the same value on the exchange market as they did when he first purchased his points.  Additionally, plaintiff failed to address the depositions of other Resort guests, which stated that they enjoy the Resort facilities and believe that the Resort is well maintained.  Indeed, although more than 130,000 guests stay at the Resort each year, defendants were aware of fewer then 15 complaints regarding mold in the last 8 years.  Thus, the only evidence plaintiff produced in support of his claim that his points decreased in value was his own self-serving testimony as to his personal reasons for refusing to stay at the Resort, even though defendants did nothing to prevent plaintiff from using his points.
 

Plaintiff’s negligence claim alleged defendants breached their duty by selling time-share ownership points for dwellings that suffered from dangerous leaks, water intrusion, mold, mildew and/or fungus, and for failing to maintain and repair those units. The negligence claim  sought solely economic damages, so plaintiff was precluded because he sought recovery in tort for purely economic loss, and was thus barred by California’s economic loss doctrine. See KB Home  v. Super. Ct., 112 Cal.App.4th 1076, 1079, 5 Cal.Rptr.3d 587 (2004).  Under California law, the economic loss doctrine bars tort claims based on the same facts and damages as breach of contract  claims. The doctrine precludes recovery for purely economic loss due to disappointed expectations, unless the plaintiff can demonstrate harm above and beyond a broken contractual promise. The rule seeks to prevent the law of contract and the law of tort from dissolving one into the other.  Thus, conduct amounting to a breach of contract becomes tortious only when it also violates a duty independent of the contract arising from principles of tort law and exposes a plaintiff to liability for personal damages independent of the plaintiff's economic loss.

Under the UCL claim, defendants argued plaintiff lacked standing to sue because plaintiff (1) had not suffered “injury in fact” because he had not experienced any physical injuries and the value of his Platinum Points had not diminished in value; (2) had not suffered a legally cognizable injury because he was still able to use his Points; and (3) even if plaintiff had evidence that his Platinum Points had diminished in value, there was no casual connection between the alleged wrongdoing and plaintiff’s speculation as to the value of his Platinum Points.

The court noted that to have standing under the UCL, a plaintiff must establish that he has (1) suffered an injury in fact; and (2) lost money or property as a result of the unfair competition. Walker v. Geico Gen. Ins. Co., 558 F.3d 1025, 1027 (9th Cir.2009). The “as a result of”  language requires the plaintiff to show a causal connection between the defendant’s alleged UCL violation and  plaintiff’s injury. Thus, to plead a UCL claim, a plaintiff must show he has suffered distinct and palpable injury as a result of the alleged unlawful or unfair conduct.  Here, the court found plaintiff’s claim failed as a matter of law because he failed to meet the standing requirement under the  UCL. Although plaintiff alleged that an employee of Welk stated that the Resort was “clean, safe, and well-maintained,” he offered no credible evidence to support the assertion that these statements were in fact false, other than his own self-serving declaration. Plaintiff’s own evidence supported the argument that when Welk was made aware of mold issues at the Resort,
it dealt with such issues in a timely fashion. As plaintiff was not barred from using his Platinum Points at the Resort or any other non-Welk facility, he had not shown that he has “lost money or profits” within the meaning of the statute.

The other claims had the same basic defect.  Motion granted.

 

Class Action Complaint Dismissed In Alleged Moldy Bed Litigation

A federal court has dismissed the class action claim made against a number of manufacturers and sellers of the “Sleep Number” bed products. Molly Stearns, et al.,  v. Select Comfort Retail Corporation, No. 08-2746 JF, (N.D. Calif. June 5, 2009).

Plaintiff filed a complaint alleging that she had found mold on her Sleep Number® bed purchased in 2000. The complaint alleged various causes of action, including for strict product liability, intentional misrepresentation, negligent misrepresentation, concealment, breach of express warranty, and breach of implied warranty. Stearns also sought to bring a class action on behalf of other  purchasers and users of Sleep Number® beds. An amended complaint added claims for alleged violation of the Magnusson-Moss Warranty Act, the California Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq.; the Racketeering Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962c; the  Consumer Product Safety Act;  in total, plaintiffs presently assert seventeen claims for relief.

Plaintiffs defined the purported class as all original purchasers of a Select Comfort® bed between January 1, 1987 and the present date, whose beds contained mold. At oral argument, and in response to defendants’ valid contention that a nationwide class would be overly ambitious in light of the differences in applicable state laws and the individualized circumstances of each bed purchaser, plaintiffs' counsel represented that they would be willing to limit the class to California residents. This concession, however, would have eliminated several of the putative class representatives. The court found that this alone would require denial of class certification based on the present state of the pleadings.

More importantly, the elements of proof with respect to the property damage alleged in the complaint likely will vary significantly among class members, depending on when the bed was purchased; whether any anti-fungal measures were included in the product; and the
surrounding environmental conditions. The amount of damage incurred also will vary among class members. Some class members might only require a new bed or a refund, while others conceivably might have suffered additional property damage from the spread of mold in their homes. Plaintiffs failed to show how these potentially diverging interests would be addressed in the single broadly defined class.

In addition, the court noted that Article III requires that the representative or named plaintiff must share the same injury or threat of injury.  DuPree v. U.S., 559 F.2d 1151, 1153 (9th Cir. 1977). See also Sosna v. Iowa, 419 U.S. 393, 403 (1975) (“A litigant must be a member of the class which he or she seeks to represent at the time the class action is certified”).  In the instant case, it was not yet clear whether any of the named plaintiffs had or could set forth a cognizable claim under any of their numerous legal theories. The court had done a claim by claim analysis leading to a dismissal with prejudice of several of the claims, including breach of implied warranty of fitness, breach of implied warranty of merchantability, fraud, intentional misrepresentation, racketeering, conspiracy, and violations of the Sherman Act and California's Cartwright Act. 

While the named plaintiffs, all of whom claim their Sleep Number beds are defective products, were given leave to amend their claims for negligence, strict product liability, breach of express warranty, and violations of the Magnusson-Moss Warranty Act, the current complaint failed to state a claim. For example, the generalized allegations of harm were insufficient for the court to know whether tort claims were barred by the economic loss doctrine. Accordingly the motion to strike was granted, without prejudice to plaintiffs filing an amended pleading consistent with the ruling.
 

Daubert Decision in Mold Case

A legal malpractice case is the somewhat surprising setting for an interesting Daubert toxic tort opinion, but we found one. Young, et al. v. Burton, et al, 2008 WL 2810237 (D.D.C. 7/22/08).

Plaintiffs sued a law firm for allegedly failing to file a timely personal injury lawsuit for their alleged mold-induced injuries. The lawsuit would have sought recovery from a landlord for damages suffered by plaintiffs allegedly as a result of exposure to toxic mold while residing in a DC apartment building. In order to succeed on their legal malpractice claim, plaintiffs needed to show their underlying claim was meritorious. Thus, plaintiffs needed admissible expert testimony as to the cause, nature, and extent of their injuries.

Defendants moved to exclude the expert’s testimony, arguing that his opinions were not based on a reliable methodology.

Following a Daubert hearing, the Court concluded that the diagnosis of plaintiffs, as well as the proffered opinions relating to general and specific causation, were not sufficiently grounded in scientifically valid principles and methods to satisfy Daubert.

Exposure Claim

Plaintiffs resided in the apartment for approximately thirty-four days, during which time plaintiffs contend they could smell noxious fumes from raw sewage. They testified they noticed extensive visible mold growth in an adjacent vacant apartment, although they estimated they were in that apartment for no longer than one or two minutes. There was no documentation of any visible mold growth in plaintiffs', and plaintiffs did not believe the two apartments shared a common air source.

Both plaintiffs submitted extensive medical records to document the health problems that they attribute to their mold exposure, but medical records also indicated significant medical problems prior to moving into the apartment

Plaintiffs’ expert, Dr. Shoemaker, used his own differential diagnostic procedure for mold illness. That procedure involves a two-tiered analysis. To satisfy the first tier, all three of the following factors must be met: (1) the potential for exposure; (2) the presence of a distinctive group of symptoms; and (3) the absence of confounding diagnoses and exposures. The second tier looks at levels of certain hormones and enzymes in the blood which the expert believes are altered by exposure to a biotoxin and thus serve as “biomarkers.”

Defense Argument

Defendants requested a Daubert hearing, arguing that there was no evidence as to the exact substance plaintiffs were exposed to or the level at which they were exposed, and thus formal toxicological causation analysis could not be performed. In addition, the tests Dr. Shoemaker used to reach his diagnosis are experimental and “not generally accepted in the toxicology community.” The traditional causation analysis, relying on the nine “Hill Criteria” that are necessary to establish a causal relationship, does not support a causal association between the dark material on the adjacent apartment walls and the plaintiffs' health complaints. (In a nutshell, the Hill Criteria are: 1) strength; 2) consistency; 3) specificity; 4) temporality; 5) biological gradient; 6) plausibility; 7) coherence; 8) experiment; and 9) analogy).

Mold Disease Causation
Courts throughout the country have varied widely with respect to the level of certainty they require with respect to the issue of causation in mold cases. See Jeffrey J. Hayward, The Same Mold Story?: What Toxic Mold is Teaching us about Causation in Toxic Tort Litigation, 83 N.C. L.Rev. 518, 536-38 (2005). One common method of plaintiffs attempting to demonstrate causation is showing a temporal relationship between exposure to a toxin and subsequent adverse health effects. However, while necessary, temporal association between exposure and illness, without more, is generally insufficient to establish causation. Under the traditional approach, in the absence of an established scientific connection between exposure and illness, the temporal connection between exposure to chemicals and an onset of symptoms, standing alone, is entitled to little weight in determining causation.

The most widely-used method of demonstrating causation in toxic tort cases is to present scientifically accepted information about the dose-response curve for the toxin which confirms that the toxin can cause the health effects experienced by the plaintiff at the dosage plaintiff was exposed to. Indeed, scientific knowledge of the harmful level of exposure to a chemical, plus knowledge that the plaintiff was exposed to such quantities, are minimal facts necessary to sustain the plaintiff's burden in a toxic tort case.

Diagnosis Flawed
Dr. Shoemaker could not show that plaintiffs met his own case definition. In the first tier of Dr. Shoemaker's case definition, the patient must have had exposure; clearly, a person cannot be made ill by mold toxins to which she has not actually been exposed. No environmental tests were conducted in plaintiffs' apartment to provide actual proof that plaintiffs did, in fact, inhale toxic substances when they resided there.

Shoemaker attempted to show that plaintiffs had the requisite exposure in two ways, neither of which was convincing to the court. First, Dr. Shoemaker believed that his case definition allowed him to use the diagnosis of the disease as evidence of actual exposure. In short, the symptoms fundamentally become the basis for explaining themselves. Such circular reasoning is not scientifically or medically acceptable. And factually, plaintiffs' complex of symptoms did not begin immediately after exposure. Also, the symptoms did not remain consistent over time. Finally, Dr. Shoemaker was unable to determine which symptoms are actually attributable to the mold. Rather, he testified that roughly 75% of plaintiffs' symptoms were probably attributable to this mold exposure, although he could not say which ones.

The third element of the first tier of Dr. Shoemaker's diagnostic protocol is that there be an absence of confounding diagnoses and exposures. This requirement is critical to a differential diagnosis, which is to conclude that only the chosen diagnosis could be responsible for the symptoms presented. Nevertheless, Dr. Shoemaker glossed over the explanation of how he ruled out all potential confounding explanations for plaintiffs' symptoms. At points, Dr. Shoemaker brushed off discussion of confounding diagnoses as almost irrelevant.

The most fundamental flaw in Dr. Shoemaker's Tier 2 analysis was that not one of his biomarker tests is generally accepted or clinically validated for the purpose of diagnosing “mold illness.” Additionally, the idea that levels of these biomarkers five years after an exposure is in any way related to that exposure is unsupported by generally accepted science.


General Causation

Shoemaker arrived at his opinions on general and specific causation based on novel and unaccepted theories and methodologies. Plaintiffs’ general causation evidence confronted the problem that there was no way of knowing what substance the plaintiffs were in fact exposed to, as Dr. Shoemaker freely admitted he did not know what molds or bacteria were present in plaintiffs' apartment. Second, his own peer-reviewed publication on “mold illness” was far too limited to stand alone as proof of general causation; only twenty-six subjects participated in the study, and the double-blinded, placebo-controlled clinical trial involved only thirteen of those subjects.

Specific Causation

On specific causation, in short, Shoemaker did not perform his five-step protocol on plaintiffs, and indeed could not possibly have done so, as he first met them long after they left the suspected mold environment. Nor was he able to base his causation opinion on the plaintiffs' response to treatment, for both plaintiffs chose not to take the medication that he had prescribed for them. 
 

Defendants did an outstanding job of holding plaintiff's expert to the standards he himself created, but could not attain.