360 West 51st Street
360 West 51st Street (NYLJ/Rick Kopstein)

ALBANY – A Manhattan apartment-dweller failed to produce sufficient scientific evidence to prove she suffered serious health problems from toxic mold exposure, a divided state Court of Appeals ruled Thursday.

Wrestling with a question that has gained the attention of other state courts in recent years, the 4-2 court said an Appellate Division, First Department panel erred when it ruled that Brenda Cornell’s expert provided enough evidence to link her maladies to the presence of mold.

Cornell’s attorney, Morell Berkowitz of Gallet, Dreyer & Berkey, said he was “shocked” by the high court’s ruling, which he predicted would create nearly insurmountable barriers for tenants attempting to sue over exposure to toxic substances in their homes.

He said medical tests on Cornell indicated that she was exposed to nearly a dozen toxic substances in addition to mold, including lead and barium.

“They are saying because there was all this bad stuff and you can’t say which of the bad stuff and how much of it caused her problem, then she has no claim. It makes no sense to me,” Berkowitz said in an interview.

Cornell, a music producer and disc jockey, suffered from a body rash, shortness of breath, fatigue, disorientation and headaches due to the mold and was forced to vacate her apartment in 2003, according to her complaint in Cornell v. 360 West 51st St. Realty, 16. Her personal injury suit, which seeks more than $20 million in damages, also contends that she suffered career setbacks due to the toxic exposure.

Her landlord and building owner made a prima facie case that “Cornell could not prove general causation,” Judge Susan Phillips Read (See Profile) wrote for the majority.

Read said Cornell’s chief scientific witness, environmental and occupational medicine expert Dr. Eckhardt Johanning, relied on various studies that showed an “association” between health problems like Cornell’s and exposure to mold.

But the court said Johanning did not show either the “general” or “specific” causation between Cornell’s health problems and the mold in her first-floor unit or in the basement of 360 West 51st St.

“Dr. Johanning repeatedly equated association with causation,” Read wrote. “In so doing, he departed from the generally accepted methodology for evaluating epidemiologic evidence when determining whether exposure to an agent causes a harmful effect or disease.”

The Court of Appeals determined that the First Department incorrectly held that Cornell had satisfied the Frye standard for her claim to proceed to trial (NYLJ, March 7, 2012).

In that ruling, the Appellate Division panel said Manhattan Supreme Court Justice Marcy Friedman (See Profile) had misinterpreted a First Department decision in Fraser v. 301-52 Townhouse Corp., 57 AD3d 416 (2008), as barring all toxic mold exposure suits. The First Department said in its ruling in Cornell that some toxic mold exposure suits have validity, as long as the plaintiffs’ scientific evidence meets the Frye standard of being “sufficiently strong” to be “indicative of a causal relationship” between plaintiffs’ injuries and the substances involved.

Read found the scientific evidence in Cornell’s case fell short of that standard. Judges Victoria Graffeo (See Profile), Robert Smith (See Profile) and Jenny Rivera (See Profile) were also in the majority.

In a dissent, Judge Eugene Pigott Jr. (See Profile) wrote that the Frye standard evolved since the 1920s primarily to discount “junk science” or “novel theories.”

“In this case, there is no dispute among the experts that there are causal links between exposure to mold and respiratory illness,” Pigott said. “The degree of that ‘association’ and whether it is indicative of a ‘causal relationship’ in this particular case, in my view, is a question of fact for the jury.”

Chief Judge Jonathan Lippman (See Profile) joined in the dissent.

Judge Sheila Abdus-Salaam (See Profile) took no part in the ruling.

Cornell blamed the mold on basement flooding in her building in 2002 and a burst pipe in her apartment in 2003. She said the mold-related health problems damaged her music recording business and hampered her part-time work as a D.J.

Berkowitz said the flooding brought by Hurricane Sandy in late 2012 has prompted a series of warnings by government agencies against the presence of mold and the potential for the kinds of serious health problems from it that Cornell complained about in her suit.

“This is not junk science,” Berkowitz said. “It is not novel. Even the defense conceded it is not junk science.”

Mindy Jayne of Bonner Kiernan Trebach & Crociata represented the landlord and building owner.

Bias Claims

In another ruling, the court decided unanimously that both the New York state and New York City Human Rights laws preclude employers from being granted summary judgment of workers’ disability discrimination suits if the employers failed to act in good faith to accommodate employees’ disabilities in the workplace.

In Jacobsen v. New York City Health and Hospitals Corporation, 34, the court reinstated William Jacobsen’s claims, holding that the hospitals agency did not make the effort required of it under state and city laws to keep Jacobsen on the job safely after he showed signs of pneumoconiosis in 2005. The lung disease is caused by inhalation of asbestos and other dust particles.

The Court of Appeals said there is ample evidence at this stage of the case that the city agency failed to provide him with a respirator or to take other steps that could have kept Jacobsen on his job as an inspector of HHC construction projects. He was dismissed in 2007 after the HHC said it could not find another suitable job for him in the agency evaluating construction projects.

Abdus-Salaam wrote for the court that “in all but the most extreme cases, the lack of a good faith interactive process [to accommodate employees' disabilities] forecloses summary judgment in favor of the employer.”

She said the HHC had to have gone further to meet its burden of accommodating Jacobsen than it did, which was to argue that any job it could find for him would entail construction oversight and potential exposure to dust.

“An employer’s failure to reasonably accommodate a worker’s disability as soon as the employer learns of that condition is the very societal ill which the relevant anti-discrimination statutes were designed to combat,” Abdus-Salaam wrote.

The decision reversed a First Department panel’s decision dismissing the Jacobsen suit in Jacobsen v. New York City Health and Hospital Corporation, 97 AD3d 428 (2012) (NYLJ, July 11, 2012).

Kenneth McCallion of McCallion & Associates in Manhattan represented Jacobsen. Elizabeth Natrella, senior counsel in the New York City Corporation Counsel’s office, argued for the HHC.

Recovering Damages

In another ruling Thursday, the court decided 4-3 in Biotronik v. Conor Medsystems Ireland, 8, that the lost profits sought by Biotronik in a breach of contract action represented general damages that its distribution agreement with Conor allows it to try to recover. Conor argued that the losses alleged by Biotronik were consequential damages that were expressly exempted from recovery by the distribution agreement between the two companies.

Their business deal, subject by the parties to being governed by New York law, concerned making Biotronik the exclusive distributor in Europe and other foreign markets for a coronary stent made by Conor. When trials of the stent were not promising, however, Conor withdrew the product and paid off Biotronik to satisfy its recall obligations.

The Court of Appeals ruled Thursday that Biotronik may also seek damages under the agreement that Biotronik contends could total $100 million or more.

“The contract clearly contemplated that plaintiff would resell defendant’s stents,” Rivera wrote for the majority. “That was the very essence of the contract. Any lost profits resulting from a breach would be the ‘natural and probable consequence’ of that breach.”

Lippman, Graffeo and Smith concurred with the majority ruling.

In a dissent, Read wrote that the lost profits fall under a limitation-of-liability provision in the agreement between the two companies. Pigott and Abdus-Salaam agreed with the dissent.

Harold Weinberger of Kramer Levin Naftalis & Frankel represented Conor.

Ronald Rauchberg of Proskauer Rose argued for Biotronik.