Tuesday, November 4, 2008

Knives Up Their Noses -- Court Precludes Expert Testimony on Multiple Chemical Sensitivity Claims Against Homeowners Insurer

PROPERTY – HOMEOWNERS – PERSONAL INJURY CLAIM FROM POST-FIRE REMEDIATION WORK – MULTIPLE CHEMICAL SENSITIVITY – FRYE HEARING
O'Brien v. Citizens Ins. Co. of Am.

(Sup. Ct., Suffolk Co., decided 10/27/2008)


It's not that I'm insensitive to Idiopathic Environmental Intolerance a/k/a Multiple Chemical Sensitivity. It's just that when reading this decision, and its report of the plaintiffs' complaints of "knives shooting up [their] nose[s]", I couldn't help but think of 8th grade lunch recess at Immaculate Conception School in Stony Point, New York, and the excited angst of sinning venially, while listening to my buddy Jay Young's bootleg tape recording of Cheech and Chong's "Up His Nose" skit. Oh, if Sister Scholastica (not kidding) had caught us listening to that stuff, I don't think I would have gotten that CYO award at graduation later that year. How the social mores have changed from then to now.

We digress. Plaintiffs commenced this action for personal injury and property damage against their homeowners insurer and the remediation company it had retained to clean the plaintiffs' home after a small clothes dryer fire, alleging that the remediation work had been negligently performed. The remediation company cleaned walls, ceilings, and other items that could retain smoke odor. The cleaning process lasted two to three days utilizing various degreasers, furniture polish and window cleaners. Immediately following the clean-up, the plaintiffs walked through their home and complained of an irritating smell. Two ozone generators were brought in and run for approximately four days to alleviate the odor.

Mrs. O'Brien again entered the home after the four-day period and complained that the smell was "different and worse." She described feeling dizzy and complained "knives were shooting up my nose." Mr. O'Brien felt the same "knives" and was nauseous. After a third time through, both Mr. and Mrs. O'Brien felt the "knives in the nose again, headaches, nausea, difficulty breathing." Mr. O'Brien then allegedly went out on the front lawn and vomited. Plaintiffs subsequently claimed in this action that defendants' negligent conduct had caused them to suffer from a condition known as Multiple Chemical Sensitivity (MCS).

Suffolk County Supreme Court Justice Peter Mayer granted defendants' request for and conducted a Frye hearing, in accordance with Frye v United States, 54 App DC 46, 293 F 1013 [1923], to determine the admissibility of expert testimony to support the plaintiffs' claims that they suffered from MCS. After that hearing, at which scientific literature was introduced and doctors for both the planitiffs and defendants testified, Justice Mayer ruled that plaintiffs would not be allowed to offer expert testimony at trial in support of their MCS claims:
In New York, evidence based on novel scientific theories or techniques is considered admissible only upon a showing of general acceptance within the relevant scientific community (People v Carrieri, 49 AD3d 660, 854 NYS2d 427 [2d Dept 2008]; Parker v Mobil Oil Corp., 7 NY3d 434, 824 NYS2d 584 [2006]; Del Maestro v Grecco, 16 AD3d 364, 791 NYS2d 139 [2d Dept 2005]). To prove causation under New York law, a plaintiff may refer to court opinions, texts, laboratory standards or scholarly articles in an effort to determine whether a particular concept has been generally accepted by the relevant scientific community and, absent such materials, the court may take testimony of expert witnesses (People v Wesley, 83 NY2d 417, 611 NYS2d 97 [1994]; see also, Demeyer v Advantage Auto, 9 Misc 3d 306, 797 NYS2d 743 [Sup Ct, Wayne County 2005]).

Once a party has made a prima facie showing that the proposed expert opinion is not reliable or not generally accepted, the burden shifts to the proponent to demonstrate the general reliability and acceptance in the relevant scientific community (Zaslowsky v J.M. Dennis Constr. Co. Corp., 26 AD3d 372, 810 NYS2d 484 [2d Dept 2006]; Lewin v County of Suffolk, 18 AD3d 621, 795 NYS2d 659 [2d Dept 2005]).

Under the Frye standard, the burden of proving general acceptance rests upon the party offering disputed expert testimony (Cumberbatch v Blanchette, 35 AD3d 341, 825 NYS2d 744 [2d Dept 2006]; Zito v Zabarsky, 28 AD3d 42, 812 NYS2d 535 [2d Dept 2006]). Absent proof in the form of controlled studies, clinical data, medical literature, or peer review indicating the expert's conclusions are generally accepted in the relevant scientific community, the opinions/conclusions must be omitted (see, Cumberpatch v Blanchette, supra ). Accordingly, courts are charged with the responsibility to ensure that testimony meets minimum standards of reliability (see, e.g., Zito v Zabarsky, supra ; Pauling v Orenreich Medical Group, 14 AD3d 357, 787 NYS2d 311 [1st Dept 1995]).

* * * * *
In the affidavit and during the Frye Hearing plaintiffs' expert placed before the Court, the National Institute of Environmental Health Sciences, a Division of the National Institute of Health, July 2006 article on MCS. From this publication we learn that the proper name for MCS is Idiopathic Environmental Intolerance (hereinafter IEI) which is defined as a "chronic, recurring disease caused by a person's inability to tolerate an environmental chemical or class of foreign chemicals. IEI thus represents a complex gene-environment interaction, the true cause of which is unknown."

* * * * *
The publication relied on by plaintiff, while reciting six criteria to show a patient has IEI, clearly states that its general causation is unknown and that further specific studies such as those outlined above would aid in considering this question. The Court has no evidence as to the conclusions of these studies, or, indeed, if they were ever conducted. The publication also suggests that discovery of the etiology is made more difficult "because the syndrome is similar to certain allergic conditions and to certain organ-system responses caused by emotional disturbances" and that "disagreement among physicians and medical researchers as to what IEI really is has made research funding difficult." Differing scientists pose the question as to whether this is really a syndrome, a mental problem, or a simple allergy.

* * * * *
The plaintiffs' expert offers no proof that connects any of the substances that were known to be present as having the chemical properties that could generally cause MCS or IEI. And although not necessarily required, the plaintiffs have provided no information regarding the amount of any of the above substances required to cause the O'Briens' illness and have failed to quantify the exposures of any of the plaintiffs (see, Parker v Mobil Oil Corp., 7 NY3d 434, 824 NYS2d 584 [2006]).

* * * * *
There is nothing in the record that identifies a diagnostic test for MCS (IEI), nor are there any studies submitted which identify a mechanism or cause for MCS (IEI). Dr. Boris acknowledged in his testimony that there is indeed general disagreement among researchers and physicians about the etiology of MCS (IEI). There is no evidence submitted to establish a causal relationship between any of the chemicals that are known to have been utilized during the remediation process at the O'Brien home and MCS (IEI). The Court concludes therefore that there is insufficient evidence to show general causation.

Federal and State Courts have consistently determined that the cause or causes of MCS (IEI) cannot be reliably established by scientific proof (see, e.g., Oppenheimer v United Charities of NY, 266 AD2d 116, 698 NYS2d 144 [1st Dept 1999]; Frank v State of New York, 972 F Supp 130 [ND NY 1997]). The Court finds the defendants have made a prima facie showing that the proposed expert opinion is not reliable. This finding is based on the documentary and testimonial evidence. The Court further finds that the plaintiffs have not met their burden as the proponent of evidence to demonstrate the general reliability and acceptance of the proposed testimony (Cumberbatch v Blanchette, 35 AD3d 341, 825 NYS2d 744 [2d Dept 2006]).

There is also no proof beyond the conclusion in the affidavit of the expert as to specific causation. Based on the foregoing, the plaintiffs are precluded from offering expert testimony at trial in support of the theory of MCS.
Not really a coverage case, but one worth noting for insurers that retain companies to assist their insureds in remediating covered losses. And thanks C&C for the chuckle these 34 years later.

P.S. -- Holy crap. After posting this random memory this morning, I discovered that the boys are back touring together and will be 20 minutes away in Niagara Falls, Canada, this Thursday night. Sold out show. Drat.

5 comments:

Hugh Fustercluck said...

Oh my, Roy. You wrote:

"How the social morays have changed from then to now."

Roy, being in love with the language the way you are, you should know that a "social moray" is a gregarious eel. I don't know how much the eels have changed since you were in Catholic school, but I would agree that the social mores have definitely changed.

Roy A. Mura said...

Good catch, Hugh. Erratum made. Speaking of eels, ever catch one? My brothers and I used to bring a big, sharp knife down to the Stony Point Battlefield when we fished the Hudson off the old concrete docks. Best way of keeping caught eels from twisting your fishing line to all get out. Did a Queen of Hearts on 'em. Easier to de-hook that way, too.

Hugh Fustercluck said...

Roy, I made a deal with eels very early on in my life. I stay out of their way, and they stay out of mine. Both sides have kept the deal assiduously.

Susie Collins said...

I'm tardy to this discussion but wanted to add a couple thoughts. As background I'll tell you that I have Multiple Chemical Sensitivity and am well aware of it's non-recognition, problems with proving cause and effect, no research, yadda yadda.

But what I wanted to say about this particular case is that it really sounds like where these people got whacked was with the ozone treatment. There are too many stories of exposure to ozone from ozone generators triggering MCS to be ignored. But let's just take MCS out of the argument, which is what I think these people should have done when filing their claim. The EPA says ozone from these ozone generators is harmful, here's the EPA link on that http://www.epa.gov/iaq/pubs/ozonegen.html . That's what these plaintiffs should have chased as the cause of their respiratory problems, not the MCS that was triggered. Just my thought.

But on the topic of MCS, which of course hasn't been properly studied so who knows what's going on-- those of us with it just know it's real-- we are heartened by reports such as the recent panel report on Gulf War Illness, link here http://sph.bu.edu/insider/images/stories/resources/annual_reports/GWI%20and%20Health%20of%20GW%20Veterans_RAC-GWVI%20Report_2008.pdf which connects poisoning from chemicals as the trigger. Though MCS is not specifically named (because it's not recognized as an illness), many of the soldiers with GWI are complaining of MCS, and here's a link to a vid on that http://www.chemicalsensitivityfoundation.org/chemical-sensitivity-introduction-15-minute.htm .

Aloha!

Roy A. Mura said...

Thanks for checking in on this subject, Susie. Eventually the science may catch up to the condition.