By Michael Hoenig - New York Law
Journal - April 14, 2014
Products Liability columns often elaborated well-established New
York law on judicial screening or "gatekeeping" of expert
testimony.1 The Court of Appeals made it clear in
Parker v. Mobil Oil Corp.2 that questions
regarding reliability of experts' testimony required diligent
policing by courts. And, now, a new ruling, the Cornell
decision, makes the point emphatically. The basic rules seem
simple enough. If "novel" scientific evidence is involved, the
court applies the Frye "general acceptance" test to determine
"whether the accepted techniques, when properly performed,
generate results accepted as reliable within the scientific
community generally." If the answer is "no," the testimony has
flunked and must be precluded or excluded. If the answer is
"yes," the proponent of the novel scientific testimony has
survived the threshold test but still has to get past the
admissibility "gate." The evidence must meet a second,
"foundational reliability" inquiry.
This second admissibility
standard applies to all expert testimony, not just "novel"
scientific evidence. In Parker, the court said the Frye
inquiry is "separate and distinct from the admissibility
question applied to all evidence—whether there is a proper
foundation—to determine whether the accepted methods were
appropriately employed in a particular case." Parker
declared that the focus moves "from the general reliability
concerns of Frye to the specific reliability of the
procedures followed to generate the evidence proffered and
whether they establish a foundation for the reception of
evidence at trial."
In fact, Parker itself
was a claim that a gas station attendant's leukemia was caused
by exposure to benzene in gasoline. The court said that no
particular "novel" methodology was at issue for which "general
acceptance" of the scientific community needed to be determined.
Instead, the issue was foundational reliability—"an inquiry…more
akin to whether there is an appropriate foundation for the
expert's opinions." In other words, do the methodologies "lead
to a reliable result?" In Parker the court's
reliability-policing led to the conclusion that, although the
experts were highly qualified in their respective fields, they
"failed to demonstrate that exposure to benzene as a component
of gasoline caused [Mr.] Parker's AML."
Although the foregoing seems
clear, we nevertheless see occasional bursts of departure from
these mature principles of reliability. Perhaps, this merely
reflects lawyers (and some judges) pushing the envelope. More
likely, perhaps, the trend toward "trial by literature" may be a
culprit. Prior columns have addressed problems with this
phenomenon3 and, for space reasons, we do not revisit
it here. Another contribution to uncertainty may be the
increasing tendency toward proffering "conduit hearsay." Thus,
an expert may refer to or quote from out-of-court hearsay, for
example a technical or scientific article, and this then becomes
outright the only or major basis for the expert's opinion. In
effect, the expert becomes a parrot or mouthpiece for what
others have said or written, hence a mere "conduit" for the
Effectively, the out-of-court
article is "testifying" but the article's author is not
available for cross-examination. The actual testifier can then
deflect pointed questions by saying, in effect, "I don't know
but the author, university or institution named in the article
is in my opinion reliable." Such "conduit hearsay" also can be
used unfairly to bolster the testifier's vulnerable position by
suggesting that the renowned creators of the hearsay "agree"
with him. The shortcomings of this approach were discussed years
ago in my article, "'Conduit Hearsay': A Minefield for Lawyers."4
Just two weeks ago, however, the
New York Court of Appeals issued its key decision in Cornell
v. 360 W. 51st St. Realty, LLC,5 yet again
offering detailed guidance to bench and bar on a variety of
expert reliability issues. Although the court's approach
generally tracks Parker, there are additional lessons of
note. Further, the court describes the rulings of the courts
below in some detail (and with textual emphasis) so the reader
can understand in what way the Appellate Division may have gone
astray. Ditto for identifying flaws in the rejected expert's
Plaintiff Brenda Cornell was a
resident of a Manhattan building which developed mold as a
result of demolition and construction work in the basement.
Plaintiff became physically ill attributing a variety of
ailments to exposure to mold and other harmful substances. She
vacated the apartment, surrendered her lease and sued the
landlord and other parties seeking $11.8 million in damages plus
an additional $10 million in punitive damages. The defendants,
in turn, sued the contractor in a third-party action.
The defendant moved for summary
judgment specifically seeking dismissal of the complaint to the
extent plaintiff alleged mold-induced personal injuries.
Defendant urged that Cornell could not prove that mold can cause
the type of injuries she alleged (general causation), or that
apartment mold caused her specific injuries (specific
causation). Defendant also sought preclusion of plaintiff's
experts from testifying on causation. In the alternative,
defendant sought a Frye hearing on whether plaintiff's theory of
causation enjoyed "general scientific acceptance." The defense
motion was supported by an affidavit of S. Michael Phillips, a
clinical immunologist with more than 30 years of clinical and
basic science experience in the fields of internal medicine,
allergy and immunology. Dr. Phillips is a Senior Scholar in
Clinical Epidemiology at the University of Pennsylvania.
Defendant's expert opined with
reasonable medical certainty that there was "no relationship
between the medical problems experienced by Ms. Cornell and
exposure to molds." On "general causation," Dr. Phillips relied
on the position paper of the American Academy of Allergy, Asthma
and Immunology (AAAAI) which he referred to as "the current
'state of the art' and widely accepted as authoritative."6
Dr. Phillips said that "[l]ess than 1% of the [Academy's members
… questioned the report." Further, even assuming general
causation, Cornell could not demonstrate "specific causation"
for some seven itemized reasons quoted by the court in its
opinion.7 One of these was that plaintiff's
complained-of medical problems "are common in the human
population regardless of indoor exposure to molds." Further,
molds "have never been shown to cause other physical and
psychological problems that Cornell ascribes to indoor mold
exposure (e.g., cognitive problems, seizures, depression)."
Plaintiff opposed the motion
with an affidavit by Eckhardt Johanning, a doctor of
environmental and occupational medicine who specializes in
mold-related illness. The expert criticized Dr. Phillips as
having "no formal training or professional experience in the
pertinent field" as well as the "out of date" or "discredited"
publications upon which the latter relied. He, on the other
hand, had examined Cornell many times, having been brought in to
consult at a very early stage of her condition. According to Dr.
Johanning, the illness was "undeniably caused by exposure to
an unusual mixture of atypical microbial contaminants."8
Further, he cited a number of
studies saying that various mold byproducts "may" have adverse
effects to humans; the "risk" of certain conditions was higher
in damp homes; there is "sufficient evidence of associations" of
building dampness with the presence of mold and certain
conditions; there is "suggestive evidence of associations" with
shortness of breath and development of asthma; and the existence
of recent studies "support the link" between a damp indoor
environment, mold growth and upper airway irritant symptoms.
Other reports, government papers or guidelines also referred to
"associations," "risks," public health "concerns" and "various
possible adverse health effects."9
The motion court in Cornell
granted summary judgment to defendant, relying heavily on
another mold-illness case (the "Fraser litigation") in which a
10-day Frye hearing in 2006, with more than 1,000 pages of
testimony and introduction of more than 70 scientific articles
and books, resulted in preclusion of the plaintiff's expert for
failure to show "general acceptance" by the scientific community
of the mold-causation premise. The trial judge in Fraser
additionally had ruled that dismissal was required for
insufficient foundational reliability of plaintiff's expert
under Parker. In 2008 a divided Appellate Division
affirmed in Fraser. Dr. Johanning was the main
plaintiff's expert in that case as well.10
In Cornell, the Appellate
Division reversed (with one justice dissenting) since plaintiff
had shown "some support" in existing data, studies and
literature and, further, since Dr. Johanning had performed a
"differential diagnosis." The Court of Appeals, however,
disagreed. On this record, the expert's conclusions on general
and specific causation were deemed insufficient. The court
reiterated its established principles regarding Frye and Parker
standards on receiving expert evidence.
Although Frye focuses on
principles and methodologies, these are "not entirely distinct
from one another." Even if an expert is using reliable
principles and methods and is extrapolating from reliable data,
a court may still exclude the expert's opinion if "there is
simply too great an analytical gap between the data and the
opinion proffered." Thus, an opinion connected to existing data
"only by the ipse dixit of the expert" may be excluded. The
expert's conclusion, too, has to be reliable. The court
reiterated that the precept has sometimes been expressed in
terms of the "general foundation inquiry applicable to all
Although Dr. Johanning attacked
Dr. Phillips' qualifications, the latter was "clearly qualified"
on the issue presented. Although plaintiff's expert condemned
the AAAAI report as "out of date" and "discredited," he did not
claim it was withdrawn or indicate where its conclusions were
ever repudiated by the scientific community. Although Dr.
Johanning cited government reports and public health initiatives
regarding mold, these were irrelevant since "standards
promulgated by regulatory agencies as protective measures are
inadequate to demonstrate legal causation."12
Finally, the studies cited by plaintiff's expert merely spoke in
terms of "risk," "linkage" and "association"—"not causation."
Indeed, plaintiff's expert repeatedly equated association with
causation. He thereby departed from the generally accepted
methodology for evaluating epidemiological evidence as reflected
in the Reference Manual on Scientific Evidence.13
Studies that show an
"association" between a damp and moldy indoor environment and
plaintiff's medical conditions do not "establish" that the
relevant scientific community generally accepts that molds
"cause" such adverse health effects. For these reasons, the
Appellate Division erred when it ruled that the Frye standard
was satisfied in this case based on "some support" in the
record. Proof of general causation was thus lacking.
Even "assuming" Cornell's expert
demonstrated general causation, he did not reliably show the
necessary specific causation. As Parker explains, an
opinion on causation should set forth not only a plaintiff's
exposure to a toxin and that the toxin is capable of causing the
particular illness (general causation) but also that plaintiff
was "exposed to sufficient levels" of the toxin to cause the
illness (specific causation).14 Thus, there must be
evidence that plaintiff was exposed to "levels of that agent
that are shown to cause the kind of harm that plaintiff claims
to have suffered."15
Here plaintiff's expert did not
identify the specific disease-causing agent other than to
vaguely describe it as "an unusual mixture of atypical microbial
contaminants." He made no effort to quantify Cornell's level of
exposure to this "unusual mixture." Further, the expert's
"differential diagnosis" was unavailing. Such a "rule in," "rule
out" approach "assumes general causation has been proven."
Scientifically valid methodology must be used in any event. The
Appellate Division was incorrect when it suggested that
performance of a differential diagnosis establishes sufficient
exposure to an agent to prove specific causation. Nor did this
record supply a proper foundation for the expert's differential
diagnosis. First, many of the medical conditions plaintiff
attributes to mold exposure are common in the general
population. Second, many of her symptoms may be ascribed to
non-mold-related diseases. Further, the expert did not "explain
what other possible causes he ruled out or in, much less why he
did so." Although he says he performed diagnostic tests, he did
not give any results.16
In closing, the court did
observe that the Frye record in the Fraser litigation was
completed more than six years ago. Since the scientific
consensus at a given point in time may or may not endure the
Court of Appeals' decision does not stand for the proposition
that a cause-and-effect relationship based on exposure to mold
does not exist. Rather, "Cornell simply did not demonstrate such
a relationship on this record."
Reliability of expert testimony
is a critical element of both the Frye "general acceptance"
test, applicable to "novel" scientific evidence, and the
"foundational reliability" criterion applicable to all
scientific evidence. The Parker precedent has been amplified
aplenty by the new Cornell ruling. Both should be on litigators'
"must read" lists.
is a member of Herzfeld & Rubin.
1. See M. Hoenig, "Experts 'Frye'd'
on Tylenol-Cirrhosis Link," New York Law Journal, Dec. 12, 2011,
p. 3; "Testifying Experts and Scientific Articles: Reliability
Concerns," NYLJ, Sept. 16, 2011, p. 3 (citing prior articles on
experts' use of unreliable hearsay, scientific papers
questioning the reliability of biomedical articles, and
reporting serious shortcomings even in those that were peer
reviewed); "'Parker,' 'Frye' and Gatekeeping of Experts: an
Update," NYLJ, June 17, 2009, p. 3; "Judicial Gatekeeping:
'Frye,' 'Foundational Reliability,'" NYLJ, Feb. 11, 2008, p. 3;
"'Gatekeeping' of Experts and Unreliable Literature," NYLJ,
Sept. 12, 2005, p. 3. The articles are also available on LEXIS.
2. 7 N.Y. 3d 434 (2006).
3. See M. Hoenig, "Testifying
Experts and Scientific Articles: Reliability Concerns," NYLJ,
Sept. 16, 2011, p. 3; "'Gatekeeping' of Experts and Unreliable
Literature," NYLJ, Sept. 12, 2005, p. 3.
4. NYLJ, March 13, 2006, p. 3.
5. 2014 NY Slip Op 02096 (Ct.
App. March 27, 2014).
6. Cornell, Id. Slip Op,
at pp. 4-5.
7. Id. Slip Op, at p. 5.
8. Id. Slip Op, at p. 6
(Emphasis by court).
9. Id. Slip Op, at pp. 6-7.
10. Fraser v. 301-52
Townhouse Corp., 57 A.D. 3d 416 (1st Dept. 2008), appeal
dismissed, 12 N.Y. 3d 847 (2009).
11. Id., Slip Op, at p. 14
(citing Parker and Wesley, 83 N.Y.2d at 422).
12. Id., Slip Op, at pp. 15-16
(quoting from Parker, 7 N.Y.3d at 450).
13. Id., Slip Op, at p. 16
(citing and quoting the federal courts' Reference Manual on
Scientific Evidence, p. 566 (3d ed. 2011) ("an association does
not necessarily mean that there is a cause-effect
14. Id., Slip Op, at p. 17
(quoting from Parker).
15. Ibid. (quoting from
Wright v. Willamette Ind., 91 F.3d 1105, 1107 (8th Cir.
16. Id., Slip Op, at p. 18.
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