On January 13, 2014, the New York State Court of Appeals
heard oral argument in the appeal of Cornell
v. 360 W. 51st Realty, which is the latest First Department
word on whether and when a claim alleging bodily injury due to mold can survive
for presentment to a jury.
Cornell was
decided by the First Department on March 6, 2012, and is generally regarded to
have made it easier for a plaintiff’s mold claim to survive summary judgment
under a Frye analysis. (Frye
requires that for a plaintiff’s claim to survive, it must be generally accepted
in the relevant scientific community that the offending agent (mold, asbestos,
etc.) causes the claimed injury.)
A decision is likely months away but if the questions from
the Court of Appeals bench during oral argument are any indication, Cornell stands an excellent
chance of reversal or modification.
The Justices focused primarily on the difference between the
word “causation”, and the term “association”.
While science recognizes many associations, it recognizes far fewer
causations -- and that is the entire point of Frye. If the relevant scientific community does not
generally accept that A (e.g., mold) causes B (e.g., asthma), then plaintiff
cannot prove causation and must be turned away. The Cornell plaintiff showed “association” between mold and
illness; will that be enough for plaintiff’s case to survive for presentment to
a jury?
About two years ago, this firm handled a Frye hearing
in Supreme Court, Kings County in which the sitting Justice presciently asked
the same question the Court of Appeals just did -- what is the difference
between causation and association? In
other words, do scientists (doctors) use “association” to mean the same thing
that a layperson means by “causation”?
This question gets at the very root of the confusion in some of the case
law on whether to allow expert testimony under Frye.
Hypotheticals, some absurd, highlight the issue. There may be a strong association between men
with grey hair, and mortality; or between membership in a sailing club, and
sunburn; or between those who make appointments with Dr. Smith, and
sickness. But it would never be argued
seriously that the former causes the latter.
That, in a nutshell, is why New York requires proof that causation is generally
accepted in the relevant scientific community.
So Cornell
will likely turn on whether the Court of Appeals views causation and
association as starkly different as these examples illustrate, or whether it
accepts the more highbrow argument that causation and association are the same
thing, differing only in the degree of experimental proof available for each.
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APX 1/16/14
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