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Whether or not one supports recent decisions by state insurance commissioners to allow insurance companies to exclude water and mold damage from their policies, the underlying truth is that false science-the unproven contention that the mold typically found in water-damaged households is “toxic” to human life and health-will now make a very real claim on the pocketbooks of property owners across the country. Insurance companies in some states can now deny coverage of water damage and resulting mold, or make insureds pay more for it. How did we reach the point where an unproven proposition has become accepted as truth, not just in state insurance hearings, but also in courtrooms? Science has not established a causal relationship between the inhalation of mold toxins and human illness. Popular media nonetheless have widely publicized the “toxicity” of molds. The public believes the worst, and takes those beliefs into the courtroom. Crossing state lines The fate of many of these cases ultimately will be determined by the rule controlling expert testimony adopted by the court in which the suits are brought. In essence, Daubert gets it right with respect to the admissibility of expert testimony in mold-related personal injury suits, and Frye gets it wrong. As long as the Frye standard stands, defendants will be exposed to the vulnerabilities that invariably result from raising pseudo-science to the level of scientific fact. In addition to the federal courts, the majority of state appellate courts in the United States have adopted the Daubert standard of admissibility for expert testimony. (Notable exceptions include California, New York, Illinois and Maryland, which still subscribe to Frye.) And, while it may have not been the original intent of the U.S. Supreme Court in its 1993 Daubert decision to restrict the flow of expert testimony reaching juries, the Daubert standard has done exactly that, particularly in mold cases. It might seem that plaintiffs who bring mold-related personal injury claims in Daubert jurisdictions are at an unfair disadvantage because of the standard of admissibility with more stringent rules. But it is actually defendants sued in Frye jurisdictions that are at an unfair disadvantage because courts permit juries to consider unfounded opinions from unqualified experts. Given the total absence of scientific evidence, alleged experts should not be permitted to testify that mold causes “toxic health effects” in personal injury suits, regardless of the jurisdiction. Almost all mold-related personal injury claims that have gone to a jury have been in Frye jurisdictions, which permit any testimony proffered by the purported expert that is “generally accepted” in the relevant scientific community. Adopted to limit the introduction of extreme opinions, the Frye standard generally has had the opposite effect, producing an anything-goes climate. In California and Maryland, both Frye jurisdictions, juries recently have returned large plaintiff verdicts in mold-related personal injury cases. In both cases, the experts’ causation testimony was suspect at best. A Maryland judge allowed an expert to tell a jury his view that a child’s impaired liver function was caused by mold in the family’s apartment. This expert’s testimony ignored the fact that the federal government-including such agencies as the Centers for Disease Control and Prevention, the Environmental Protection Agency and the National Institutes of Health-and the vast majority of the scientific community in the United States concur that a causal relationship between mold and toxic health effects in humans has not been proven. In Daubert jurisdictions, however, many mold-related personal injury claims have been dismissed and/or settled where defendants filed pre-emptive motions to exclude plaintiffs’ experts before trial. Under the Daubert standard of expert admissibility, the court must consider a number of factors in determining if a proposed expert’s testimony is relevant and reliable, including: whether the scientific theory can be tested; whether it has been subjected to peer review and/or publication; whether the potential error rate of the scientific technique is known; and whether the theory has been generally accepted in the relevant scientific community. In light of these factors, courts in Daubert jurisdictions have readily excluded expert causation testimony; the science underlying causation testimony in mold-related personal injury claims simply does not exist. These vague causal connections, based on circumstantial evidence, are not sufficiently reliable to guide a jury’s deliberation. Courts in Daubert jurisdictions have typically recognized this reality, and have done a fine job of excluding the junk science with respect to mold-related personal injury claims. John Parker Sweeney chairs the litigation department and mass torts practice group at Baltimore’s Miles & Stockbridge.

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