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PLAINTIFF’S EXPERT DID NOT ESTABLISH EITHER THE “GENERAL CAUSATION” OR “SPECIFIC CAUSATION” FRYE CRITERIA IN THIS MOLD-INJURY CASE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s expert did not offer sufficient proof plaintiff’s injuries were caused by exposure to mold. Neither the “general causation” nor “specific causation” criteria established by Frye v United States, 293 F 101, were met:

General causation cannot be established through studies showing only a “risk” or “association” between mold exposure and the development of certain medical conditions … . The defendants’ expert relied on a position paper of the American Academy of Allergy, Asthma and Immunology published in 2006 … , that controverts the plaintiff’s expert’s theory of causation … . The scientific literature and testimony proffered by the plaintiff’s expert was insufficient to demonstrate that the plaintiff’s expert’s theory of general causation has gained general acceptance in the scientific community … . …

… [T]he method used by [plaintiff’s] expert to establish specific causation did not satisfy Frye. … [I]t is not enough for a plaintiff’s expert to testify that “exposure to a toxin is ‘excessive’ or ‘far more’ than others,” or to offer testimony “that merely links a toxin to a disease or ‘work[s] backwards from reported symptoms to divine an otherwise unknown concentration’ of a toxin” … . “… [W]e have never dispensed with a plaintiff’s burden to establish sufficient exposure to a substance to cause the claimed adverse health effect” … . “At a minimum, . . . there must be evidence from which the factfinder can conclude that the plaintiff was exposed to levels of th[e] agent that are known to cause the kind of harm that the plaintiff claims to have suffered” … . Buist v Bromley Co., LLC, 2024 NY Slip Op 01904, Second Dept 4–10-24

Practice Point: Here the expert evidence purporting to demonstrate plaintiff’s injuries were caused by exposure to mold did not satisfy the “general causation” or “specific causation” criteria established by Frye v United States, 293 F 101, criteria explained.

 

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