Construction Law Update

March 29 , 2006 ; Issue 11

Highlight Article

Mold-Related Illness Claim Thrown Out Due to Lack of Scientific Support for Tests Employed by Plaintiffs’ Experts

By Paul McBride

In Geffcken v. D’Andrea, 2006 DJDAR 3657, published on March 28, 2006, the California Court of Appeals affirmed a trial court’s ruling excluding all evidence on which plaintiffs based their mold-related illness claim.  Essentially, the trial court found that the tests  relied on by the plaintiffs to establish their exposure to “toxic mold” have no scientific validity, and the appellate court agreed.  This case is important because the tests used by the plaintiffs in this case are the tests we commonly see used by plaintiffs in mold illness cases.

In Geffcken, a husband and wife claimed exposure to mold in their home, with resulting illness.  Prior to trial, the defense filed motions-in-limine to exclude all the evidence on which the plaintiffs relied to support this claim.  A lengthy evidentiary hearing (402 hearing) was conducted.

To support their claim, the plaintiffs relied on the following evidence:

1) Air samples from their home collected and sent to a laboratory for testing.  The samples purportedly showed “high” concentrations of airborne mold spores of various species of mold.

 

2) A laboratory test of the plaintiffs’ blood performed by Dr. Aristo Vodjani of Immunosciences, Inc.  This test purportedly showed the presence, in the plaintiffs’ blood, of antibodies produced by exposure to mycotoxins produced by mold spores.  According to Dr. Vodjani’s report, both homeowners scored in the “upper five percent” of the test, which indicates a substantial exposure to mycotoxins.

 

3) A blood serology test of the plaintiffs’ blood performed by IBT References Laboratory.  This test purportedly showed the presence of antibodies caused by exposure to “the actual mold, the actual living organism,” rather than to mycotoxins.

 

4) Testimony from Dr. Gary Orlog, a board-certified medical toxicologist.  Dr. Orlog testified that mycotoxins are “poisons produced by molds” and are also “carcinogens.”  He opined that the wife, Eva Geffcken, suffered from lung cancer, neurological problems, respiratory problems, immune deficiency, fibromyalgia, infections on her tongue, toe nails, and skin, chronic fatigue, weakness, memory loss, and headaches, all caused by her exposure to mycotoxins.  He opined that the husband, Alexander Geffcken, suffered from chronic fatigue, immune dysfunction, neurological problems, respiratory problems, reactive airway disease, elevated liver enzymes, and chemical hepatitis of the liver, all caused by his exposure to mycotoxins.  In reaching this opinion, Dr. Orlog relied on the air sampling taken from the plaintiffs’ house showing “high” concentrations of airborne mold spores, and the two laboratory reports showing antibodies in the plaintiffs’ blood caused by exposure to, respectively, mycotoxins and to “the mold itself.”

In opposition to introduction of the plaintiffs’ mold evidence, the defense relied on the following:

1) Testimony by environmental hygienist Dan Baxter, who testified that the air samples collected at the plaintiffs’ home merely showed the level of mold spores.  It proved nothing about the level of mycotoxins produced by the spores.  Mr. Baxter testified that the air samples could have been tested for mycotoxins by use of gas chromatography/mass spectrometry, but the plaintiffs’ experts had not done so.

 

2) Testimony by Dr. Daniel Sudakin, Clinical Assistant Professor in the Department of Environmental and Molecular Toxicology at Oregon State University, and author of the chapter on mycotoxins and toxigenic fungi in the textbook, "Ellenhorns Medical Toxicology."  Dr. Sudakin is both and M.D. and has an M.P.H. degree (Masters in Public Health).

Dr. Sudakin testified that not all mold spores produce mycotoxins, and that not all mycotoxins are harmful.  People are exposed to mycotoxins everywhere.  “It’s a question of dose and response.”  He stated:

“The environmental testing was limited to the identification of fungi at the residence.  This is a fundamental limitation, because the presence of mold in a residential environment does not necessarily indicate that mycotoxins are present, or that any exposure to mycotoxins has occurred.  No valid conclusions about mycotoxins as the cause of health effects can be derived from these limited environmental data unless an attempt is made to quantify dose and exposure.”

Dr. Sudakin testified, with respect to the laboratory test performed by Immunosciences that purports to show antibodies produced by the body in response to mycotoxin exposure, that “there is not a single peer-reviewed scientific reference establishing that mycotoxins bind with human protein, resulting in the production of antibodies in the blood.”  He cited a 2001 peer-reviewed scientific publication that “invalidates the mycotoxin antibody testing technique.”  (Unfortunately, the name of this publication was not provided in the Court’s written opinion.)

With respect to the blood serology test performed by IBT References Laboratory, purporting to show antibodies produced in the blood by exposure to mold itself,  Dr. Sudakin directed the Court’s attention to a November, 2000, California Department of Health Services publication.  This publication specifically addresses the blood serology test for mold-caused antibodies performed by IBT References Laboratory.  It notes that IBT is the only laboratory in the United States that performs this test.  It notes that the test has not been approved by the U.S. Food and Drug Administration.  It concludes that the test cannot be used to imply the presence of mold in a home, nor can it be used to prove patient exposure to specific molds or toxins.  It states, “There are currently no validated biomarkers of exposure to specific indoor fungi or their toxins.”

3) Dr. Adrian Casillas, Assistant Professor, UCLA Department of Medicine, Division of Clinical Immunology and Allergy.

Dr. Casillas, who is Board-certified in internal medicine as well as immunology and allergy, testified that Dr. Vodjani’s mycotoxin antibody test is “not generally accepted in the medical or scientific communities and is not founded upon accepted scientifically reliable principles and procedures.” (Kelly-Frye test) He stated, “The mycotoxin antibody test does not follow accepted scientific principles as the quality control is not verified.  Further, the clinical study of this test is unreliable, as Dr. Vodjani himself had no knowledge of the health status of any subjects used in his study.”

According to Dr. Casillas, neither Dr. Vodjani’s test nor the IBT test “has any relevance in diagnosing mycotoxin-related illness.”  According to Dr. Casillas, if  a doctor suspects that a patient has been exposed to mycotoxins, the doctor would use a chromatographic technique to determine their presence.

After hearing from both plaintiff and defense experts, the trial court granted the defense motions in limine to exclude all evidence related to mold in the home, mold-related antibodies in the patients’ blood, or illness caused by mold.  The trial court ruled, specifically, that:

1) The air sampling conducted in the home is inadmissible because it is irrelevant.  The sampling merely identified the presence of mold spores.  It did not confirm the presence of mycotoxins.  According to the plaintiffs’ own expert, it is mycotoxins that produce adverse health effects.  The defense experts established that no inference may be drawn regarding the presence of, or concentration of, mycotoxins merely from the presence of mold spores.  There is a test the plaintiffs could have conducted to establish the presence of mycotoxins, but they failed to do so.

 

2) The evidence from Immunosciences that the plaintiffs’ blood contains antibodies formed by exposure to mycotoxins, and the evidence from IBT References Laboratories that the plaintiffs’ blood contains antibodies formed by exposure to mold, is excluded because the tests performed by these laboratories fail to satisfy the Kelly-Frye test of acceptance by the scientific community.

 

3) Dr. Orlog’s testimony that both plaintiffs suffer from illness caused by exposure to mycotoxins is excluded because this testimony is based on the discredited air sampling test and the discredited tests conducted by Immunosciences and IBT.

 

On appeal, the trial judge’s rulings were upheld, the appellate court essentially adopting the trial judge’s rationale as fully supported by the evidence produced during the 402 hearing.

This case comes with a footnote that sounds a note of caution.  Footnote 4 states:

“Our holdings herein concerning the trial court’s exclusion of evidence at the section 402 hearing are limited to the specific facts of this case.  They do not constitute precedent for the exclusion of similar evidence under materially different factual scenarios.  For example, under a materially different set of facts, our holdings would not preclude a trial court from ruling that the required Kelly-Frye foundation had been met for the admission of the Immunosciences mycotoxin antibody test and the IBT blood serology test.”

Despite this note of caution, this case is important in establishing a winning strategy for defending mold-related illness claims.  The evidence produced by the plaintiffs in this case is virtually identical to that produced in every mold illness case we have defended.  That evidence commonly consists of:

1) Mold samples taken from the home showing the concentration of airborne mold spores in the home.  We have never seen a plaintiff produce GD/mass spec testing to show the presence of mycotoxins in the home.

 

2) Laboratory tests showing the presence, in the plaintiffs’ blood, of antibodies purportedly specific to individual species of mold or mold mycotoxins.

 

3) A medical doctor willing to testify, based on  #1 and #2 above, that whatever illness the plaintiff suffers is caused by exposure to mold.

 

This case emphasizes the importance of obtaining qualified defense experts to refute this type of evidence, and of filing appropriate motions-in-limine to force a 402 hearing prior to trial that will result in dismissal of the plaintiffs’ case.  The key points are that the presence of mycotoxins, as opposed simply the presence of mold, must be shown by the plaintiffs, and that tests which purport to prove the plaintiffs’ exposure to mold by measuring antibodies produced by the body in reaction to mold are not, at the present time, sufficiently accepted in the scientific community to gain admission into evidence under the Kelly-Frye test.

Paul T. McBride, Esq. is a partner of Kring & Chung, LLP. Mr. McBride specializes in serving the legal needs of the construction industry. For more information or with questions regarding this article, please contact Mr. McBride at (949) 261-7700 or via email at pmcbride@kringandchung.com

** The information contained herein is for informational purposes only and should not be relied upon in reaching a conclusion in a particular area. The legal principles discussed herein were accurate at the time this article was authored but are subject to change with time. Applicability of these same legal principles may differ substantially in individual situations. Please consult an attorney before making a decision in a particular area using only the information provided in this article.

Kring & Chung, LLP is one of California’s fastest growing full-service law firms. With over forty attorneys, the firm practices business, corporate and securities, construction, real estate, labor & employment, insurance, estate planning and family law. The construction department of the firm serves the construction industry in relation to construction and design defect litigation, mechanic’s liens, stop notices, construction bonds, public works construction disputes, change orders, bid protests and delay claims.
 

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