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    Posted by Deborah on 2/15/08


    Did you happen to catch this article?

    Court of Opinion
    Amid Suits Over Mold,
    Experts Wear Two Hats
    Authors of Science Paper
    Often Cited by Defense
    Also Help in Litigation
    By DAVID ARMSTRONG
    January 9, 2007
    (See Corrections & Amplifications item below.)
    Soon after moving into a New York City apartment, Colin and
    Pamela
    Fraser say, they began to suffer headaches, rashes, respiratory
    infections and fatigue. They attributed it to mold.
    But their lawsuit against the cooperative that owns the
    building hit a
    roadblock when the court wouldn't let their medical expert
    testify that
    mold caused their problems. This is "unsupported by the
    scientific
    literature," the state trial judge said.
    She relied in part on a position paper from the American
    College of
    Occupational and Environmental Medicine, or ACOEM. Citing a
    substance
    some molds produce called mycotoxins, the paper said
    "scientific
    evidence does not support the proposition that human health
    has been
    adversely affected by inhaled mycotoxins in the home,
    school, or office
    environment."
    The paper has become a key defense tool wielded by builders,
    landlords
    and insurers in litigation. It has also been used to assuage
    fears of
    parents following discovery of mold in schools. One point
    that rarely
    emerges in these cases: The paper was written by people who
    regularly
    are paid experts for the defense side in mold litigation.
    The ACOEM doesn't disclose this, nor did its paper. The
    professional
    society's president, Tee Guidotti, says no disclosure is
    needed because
    the paper represents the consensus of its membership and is
    a statement
    from the society, not the individual authors.
    The dual roles show how conflicts of interest can color
    debate on
    emerging health issues and influence litigation related to
    it. Mold has
    been a contentious matter since a Texas jury in 2001 awarded
    $32.1
    million to a family whose home was mold-infested. That
    award, later
    reduced, and a couple of mold suits filed by famous people
    like Ed
    McMahon and Erin Brockovich helped trigger a surge in mold
    litigation.
    Insurers and builders worried it would become a liability
    disaster for
    them on the scale of asbestos.
    The number of suits hasn't been as big as anticipated. One
    reason
    appears to be the insurers' success in getting many states
    to exclude
    mold coverage from homeowner's-insurance policies. But also
    helping
    turn the tide, lawyers and doctors say, is the ACOEM report.
    Building
    groups and the U.S. Chamber of Commerce have cited it to
    rebut the
    notion that mold in the home can be toxic.
    James Craner, a Nevada doctor who has testified for scores
    of people
    who claimed ill effects from mold, says the paper "has been
    used in
    every single mold case. The lawyer asks, 'Isn't it true the
    American
    College of Occupational and Environmental Medicine concluded
    that there
    is no scientific evidence that mold causes any serious
    health effects?'"
    The result, Dr. Craner maintains, is that "a lot people with
    legitimate
    environmental health problems are losing their homes and
    their jobs
    because of legal decisions based on this so-called
    'evidence-based'
    statement."
    Dr. Craner says a majority of his work is on the plaintiff
    side and he
    is paid when he testifies, but he says he currently is an
    expert for
    the defense in a case where he concluded the plaintiffs'
    health issues
    weren't related to mold.
    Two other medical societies have also published statements
    on mold
    written, in part, by legal-defense experts. The societies
    didn't
    disclose this when they released the papers, although one later
    published a correction saying two authors served as expert
    witnesses in
    mold litigation.
    READ MORE

    Read the full text of Dr. Borak's September 2002 email to
    the leaders
    of the American College of Occupational and Environmental
    Medicine
    about his struggles in drafting their position paper on mold.

    Read the official position statements of the American
    College of
    Occupational and Environmental Medicine and of the American
    Academy of
    Allergy, Asthma and Immunology, as posted on their Web sites.

    Mold reproduces through tiny spores. These can float into
    homes through
    windows and vent systems or be carried in on clothes or
    shoes. Indoors,
    mold grows when moisture is present.
    There's debate about how much this matters. Plaintiffs
    attribute ills
    ranging from asthma to cognitive problems to inhalation of
    mold. The
    Institute of Medicine, a largely federally funded nonprofit,
    reviewed
    the research in 2004 and said "studies have demonstrated
    adverse
    effects -- including immunotoxic, neurologic, respiratory
    and dermal
    responses -- after exposure to specific toxins, bacteria,
    molds or
    their products." But it added that the dose required to
    cause adverse
    health effects hasn't been determined. The U.S. Centers for
    Disease
    Control and Prevention, for its part, says on its Web site
    that mold
    can cause wheezing and eye or skin irritation, but a link to
    more
    serious conditions "has not been proven."
    'Highly Unlikely'
    The ACOEM paper goes further. It says not only is there no
    evidence
    indoor mold causes serious health effects, but even if mold
    produced
    toxic substances, it's "highly unlikely at best" that anyone
    could
    inhale enough to cause a problem. The paper reaches this
    conclusion by
    extrapolating from animal studies in which rodents' throats
    were
    injected with molds.
    The paper's authors say their conclusions are validated by the
    Institute of Medicine's paper. But the author of the
    Institute paper's
    mold toxicity chapter, Harriett Ammann, disagrees, and
    criticizes the
    ACOEM paper's methodology: "They took hypothetical exposure and
    hypothetical toxicity and jumped to the conclusion there is
    nothing
    there."
    Dr. Ammann, a recently retired toxicologist for Washington
    state's
    health department, recently helped the plaintiff side in a
    mold case.
    She says this was the only time she has done so for pay. In
    the Fraser
    lawsuit in New York, after the judge barred testimony that
    mold caused
    health problems, Dr. Ammann, on her own and without pay,
    provided an
    affidavit filed with the appellate court saying the judge
    misinterpreted the research.
    The ACOEM, a society of more than 5,000 specialists who
    investigate
    indoor health hazards and treat patients with related
    illnesses, first
    moved to develop a position paper on mold in early 2002.
    Dean Grove,
    then the medical society's president, asked the head of its
    council on
    scientific affairs, Yale medical professor Jonathan Borak,
    to set the
    process in motion.
    He turned to a retired deputy director of the National
    Institute for
    Occupational Safety and Health -- part of the CDC -- to
    spearhead the
    project. Dr. Borak says he wanted someone with "no established
    background record of litigation related to mold."
    For the Defense
    The person he chose, Bryan Hardin, says he hadn't worked on
    any mold
    lawsuit at that point, though he was a consultant on other
    matters for
    GlobalTox Inc., a firm that regularly worked for the defense
    in mold
    cases. And Dr. Hardin says he consulted for the defense in a
    mold case
    while he was helping write the ACOEM paper.
    In a Feb. 27, 2002, email, Dr. Borak told Dr. Hardin: "That
    position
    paper would be prepared by you and your GlobalTox
    colleagues." Dr.
    Borak says he believes he didn't know at the time that
    GlobalTox did
    mold defense work.
    A GlobalTox colleague who aided Dr. Hardin was Bruce Kelman,
    now
    president of the firm, which recently changed its name to
    Veritox Inc.
    Drs. Kelman and Hardin, now principals at the firm and
    entitled to a
    share of its profits, were two of the ACOEM paper's three
    authors. They
    are paid $375 to $500 an hour for work on mold cases, court
    records say.
    EXPERT WITNESSES

    The Situation: Mold defendants rely on medical-society
    position
    papers that reject a link to serious ills, but papers were
    written by
    scientists who often work for defense side in mold cases.

    The Debate: Whether courts get accurate or skewed view of
    possible
    health effects of indoor mold.

    What's at Stake: Outcome of widespread litigation over mold.

    The paper's third author was Andrew Saxon, then chief of
    clinical
    immunology and allergy at the medical school of the
    University of
    California, Los Angeles. He, too, has served as a defense
    expert in
    numerous mold suits. Dr. Saxon says he is paid $510 an hour
    for his
    help. If called to testify in court, his rate rises to $720
    an hour,
    according to a deposition he gave.
    Until he retired from UCLA in September, money he earned as
    a legal-
    defense expert was paid to the university, and he says UCLA
    then gave
    him a little less than half of it. Dr. Saxon estimates he
    generates
    $250,000 to $500,000 a year from expert defense work, which
    includes
    non-mold cases.
    The ACOEM knew about mold defense work by the authors of its
    paper. Dr.
    Hardin informed the society in a Sept. 23, 2002, document
    under his
    letterhead. Labeled "confidential" and "share only with the
    ACOEM board
    of directors," it told of his work as a defense expert on
    one mold case.
    The letter said the other two authors, Drs. Saxon and
    Kelman, "have
    been retained by both the defense and plaintiff bar in
    litigation
    relating to indoor mold." Both say they work mostly for the
    defense in
    mold cases.
    Internal ACOEM documents indicate that as the paper was
    being written
    in August 2002, there was concern within the society that
    the paper was
    too friendly to defense interests. Its authors were asked to
    modify the
    first draft's tone "because of the concern about possible
    misinterpretation of 'buzz words' and phrases such as 'belief
    system,' 'adherents may claim,' 'supposed hypersensitivity,'
    and 'alleged disorder,'" according to a June 2002 email to
    Dr. Hardin
    from the society's communications director. (The email was
    obtained by
    a plaintiff's attorney in a mold case, Karen Kahn.)
    Dr. Borak, the head of the society's council on scientific
    affairs,
    suggested sending a draft for review to one particular mold
    authority,
    Michael Hodgson, director of the occupational safety and
    health program
    at the U.S. Veterans Health Administration. Dr. Hardin
    objected. He
    said it would be "inappropriate to add ad hoc reviewers who
    are highly
    visible advocates for a point of view the draft position
    paper analyzes
    and finds lacking." The draft ultimately wasn't sent.
    'A Defense Argument'
    In September 2002, Dr. Borak emailed colleagues that "I am
    having quite
    a challenge in finding an acceptable path for the proposed
    position
    paper on mold." He said several reviewers "find the current
    version,
    much revised, to still be a defense argument."
    The society released a paper two months later, and its
    authors, as well
    as ACOEM officials, say it accurately reflects the science
    on indoor
    mold exposure. The authors' "views, if prejudicial, were
    removed," Dr.
    Borak says. "It went through a dramatic change of top-heavy
    peer
    reviews." He says objections come mainly from "activist
    litigants" who
    find it "annoying."
    Drs. Hardin and Kelman say the paper has been controversial
    because it
    challenged "a belief system" that mold can be toxic indoors.
    "A belief
    system is built up and there is anger when the science
    doesn't support
    that belief system," Dr. Kelman says.
    The Manhattan Institute, a conservative think tank, paid
    Veritox
    $40,000 to prepare a lay version of the paper. That version
    said "the
    notion that 'toxic mold' is an insidious, secret 'killer,'
    as so many
    media reports and trial lawyers would claim, is 'junk science'
    unsupported by actual scientific study." Its authors were
    the three
    writers of the longer paper plus a fourth, who also is a
    principal at
    Veritox.
    Lawyers defending mold suits also cite a position paper from
    the
    American Academy of Allergy, Asthma and Immunology. This
    paper says it
    concurs with the ACOEM that it is highly unlikely enough
    mycotoxins
    could be inhaled to lead to toxic health effects.
    Among the academy paper's five authors is Dr. Saxon.
    Another, Abba
    Terr, a San Francisco immunologist, has worked as a defense
    expert in
    mold cases. The academy published the paper in its Journal
    of Allergy
    and Clinical Immunology last February, not citing the
    mold-defense work
    of either man. The publication later ran a correction
    disclosing their
    litigation work.
    The academy's president says officials were aware Dr. Saxon
    was an
    expert witness. "We should have published their [disclosure]
    statements
    with the paper," says the official, Thomas Platts-Mills. He
    says the
    lapse resulted from a variety of factors, including
    confusion about
    whose responsibility the disclosure was.
    Unhappy Author
    A third author of the academy's paper, Jay Portnoy, chief of
    allergy,
    asthma and immunology at the Children's Mercy Hospital in
    Kansas City,
    Mo., says he "felt that there was an agenda" -- the effort
    "seemed very
    biased toward denying the possibility of there being harmful
    effects
    from mold on human health." He says he considered removing
    his name
    from the paper, but it was published before he could decide.
    Dr. Portnoy says a section he contributed was rewritten by
    Dr. Saxon to
    be "a lot more negative." He says the paper wrongly says
    mold isn't
    proven to cause allergic rhinitis, with symptoms like
    wheezing, sore
    throat and sneezing. Dr. Saxon denies the authors had a bias
    but says
    they applied a high standard for proving mold causes a
    particular
    effect. He says he didn't skew the content of Dr. Portnoy's
    section but
    rewrote it because it was "too diffuse." Dr. Terr in San
    Francisco
    didn't return a call seeking comment.
    In New York, the Frasers are appealing the refusal of the
    trial judge,
    state Supreme Court Justice Shirley Werner Kornreich, to let
    their
    expert testify that indoor mold caused their health
    complaints. The
    Frasers had moved into the East Side Manhattan apartment in
    1996. Their
    2002 suit said they repeatedly complained to the co-op's
    board of
    dampness and leaks as their health deteriorated.
    Their appeal attacks the credibility of mold position papers
    drafted by
    scientists who work for defendants. "What you have here is
    defense
    experts authoring papers under an official guise," says
    their attorney,
    Elizabeth Eilender. Justice Kornreich declined to comment.
    Write to David Armstrong at david.armstrong@wsj.com
    Corrections & Amplifications:
    Harriet Ammann, a toxicologist, says she has been paid as an
    expert by
    plaintiffs in three mold cases. This article reports that
    Dr. Ammann
    said she had been paid for her work in only one case.

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