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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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