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New York High Court Finds Expert Failed to Satisfy Causation Requirement

In a decision that reaffirms the importance of expert testimony, New York’s highest court ruled that a plaintiff’s expert had failed to establish either general or specific causation such that the plaintiff could withstand summary judgment. See Cornell v. 360 W. 51st Street Realty, LLC, 2014 NY Slip Op 02096 (N.Y. March 27, 2014). The case arose out of a woman’s claim that exposure to dampness and mold in her apartment caused her to suffer a variety of physical symptoms, which eventually forced her out of her apartment. She filed suit against her landlord and other related entities, claiming personal injuries, property damage, and constructive eviction, among other causes of action.

Defendants moved for summary judgment to dismiss all of Plaintiff’s claims, arguing that she was unable to prove that mold is capable of causing her kind of injuries (general causation) or caused her injuries (specific causation). The trial court agreed with Defendants but the intermediate appellate court reversed. The Court of Appeals applied the test established in Parker v. Mobil Oil Corp., et al., 7 N.Y.3d 434 (2006), which required an expert’s causation opinion to establish both general causation and specific causation in complex product liability and toxic tort matters.

First, the court held that Plaintiff did not establish that the scientific community generally accepted that mold could cause the kinds of adverse health effects that she suffered. The court further found that Plaintiff’s expert only showed an association, which does not necessarily mean a cause-and-effect relationship. Second, the court held that Plaintiff did not establish specific causation because Plaintiff’s expert had failed to make any effort to quantify Plaintiff’s exposure to mold, or to refute the opinion of Defendants’ expert that the mold was present at concentrations and distribution to be expected in a typical home.  

The author gratefully acknowledges the assistance of Monisola O. Salaam in the preparation of this article.

© 2020 Beveridge & Diamond PC National Law Review, Volume IV, Number 214


About this Author

Daniel M. Krainin Environmental Litigation Attorney Beveridge & Diamond New York, NY

Dan deploys more than two decades of environmental litigation experience to resolve clients’ legal and business challenges.

Primarily focused on environmental and toxic tort litigation, Dan helps clients successfully resolve groundwater contamination, hazardous waste site remediation, natural resource damages, permit defense and product-related matters. He enjoys using his skills as a litigator to help clients solve environmental problems.

Among his many wins, Dan successfully led a team that defeated an emergency challenge to a permit that Dan’s client needed to continue its...

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Mackenzie S. Schoonmaker Environmental Litigation Attorney Beveridge & Diamond New York, NY

Mackenzie’s practice includes both litigation and regulatory matters arising under FIFRA, the Clean Water Act, and related environmental laws.

She is passionate about conserving air, water, wildlife, and land for future generations, and enjoys helping clients navigate and enforce the detailed framework of environmental law because she believes compliance is key to preventing adverse impacts to the environment.

Mackenzie is a co-chair of Beveridge & Diamond’s Industrial Hemp & Cannabis industry team. She advises clients, and regularly writes and presents, on federal and state environmental regulations impacting this thriving industry. 

Under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), Mackenzie represents pesticide companies in data compensation arbitrations, focusing on defending the rights of data owners against follow-on registrants of pesticides. She has also worked extensively with task forces comprised of national and multinational companies of all sizes that operate as joint ventures or limited liability companies to generate data and other information to meet government requirements under FIFRA.

Among the wide range of issues under the Clean Water Act that Mackenzie has handled are assisting companies with responses to Clean Water Act Section 308 information requests and Clean Water Act Section 404 compensatory mitigation requirements.

Mackenzie also defends public utilities against toxic tort claims. She was part of the team that obtained a defense judgment after a three-week trial regarding claims alleging that the client supplied corrosive water to apartment buildings. The case, Cormier v. D.C. WASA, 2011 D.C. Super. Lexis 7, 84 A.3d 492 (2013), was successfully upheld on appeal.