Post: Important Article
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
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
mold caused their problems. This is "unsupported by the
literature," the state trial judge said.
She relied in part on a position paper from the American
Occupational and Environmental Medicine, or ACOEM. Citing a
some molds produce called mycotoxins, the paper said
evidence does not support the proposition that human health
adversely affected by inhaled mycotoxins in the home,
school, or office
The paper has become a key defense tool wielded by builders,
and insurers in litigation. It has also been used to assuage
parents following discovery of mold in schools. One point
emerges in these cases: The paper was written by people who
are paid experts for the defense side in mold litigation.
The ACOEM doesn't disclose this, nor did its paper. The
society's president, Tee Guidotti, says no disclosure is
the paper represents the consensus of its membership and is
from the society, not the individual authors.
The dual roles show how conflicts of interest can color
emerging health issues and influence litigation related to
it. Mold has
been a contentious matter since a Texas jury in 2001 awarded
million to a family whose home was mold-infested. That
reduced, and a couple of mold suits filed by famous people
McMahon and Erin Brockovich helped trigger a surge in mold
Insurers and builders worried it would become a liability
them on the scale of asbestos.
The number of suits hasn't been as big as anticipated. One
appears to be the insurers' success in getting many states
mold coverage from homeowner's-insurance policies. But also
turn the tide, lawyers and doctors say, is the ACOEM report.
groups and the U.S. Chamber of Commerce have cited it to
notion that mold in the home can be toxic.
James Craner, a Nevada doctor who has testified for scores
who claimed ill effects from mold, says the paper "has been
every single mold case. The lawyer asks, 'Isn't it true the
College of Occupational and Environmental Medicine concluded
is no scientific evidence that mold causes any serious
The result, Dr. Craner maintains, is that "a lot people with
environmental health problems are losing their homes and
because of legal decisions based on this so-called
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
the defense in a case where he concluded the plaintiffs'
weren't related to mold.
Two other medical societies have also published statements
written, in part, by legal-defense experts. The societies
disclose this when they released the papers, although one later
published a correction saying two authors served as expert
• Read the full text of Dr. Borak's September 2002 email to
of the American College of Occupational and Environmental
about his struggles in drafting their position paper on mold.
• Read the official position statements of the American
Occupational and Environmental Medicine and of the American
Allergy, Asthma and Immunology, as posted on their Web sites.
Mold reproduces through tiny spores. These can float into
windows and vent systems or be carried in on clothes or
mold grows when moisture is present.
There's debate about how much this matters. Plaintiffs
ranging from asthma to cognitive problems to inhalation of
Institute of Medicine, a largely federally funded nonprofit,
the research in 2004 and said "studies have demonstrated
effects -- including immunotoxic, neurologic, respiratory
responses -- after exposure to specific toxins, bacteria,
their products." But it added that the dose required to
health effects hasn't been determined. The U.S. Centers for
Control and Prevention, for its part, says on its Web site
can cause wheezing and eye or skin irritation, but a link to
serious conditions "has not been proven."
The ACOEM paper goes further. It says not only is there no
indoor mold causes serious health effects, but even if mold
toxic substances, it's "highly unlikely at best" that anyone
inhale enough to cause a problem. The paper reaches this
extrapolating from animal studies in which rodents' throats
injected with molds.
The paper's authors say their conclusions are validated by the
Institute of Medicine's paper. But the author of the
mold toxicity chapter, Harriett Ammann, disagrees, and
ACOEM paper's methodology: "They took hypothetical exposure and
hypothetical toxicity and jumped to the conclusion there is
Dr. Ammann, a recently retired toxicologist for Washington
health department, recently helped the plaintiff side in a
She says this was the only time she has done so for pay. In
lawsuit in New York, after the judge barred testimony that
health problems, Dr. Ammann, on her own and without pay,
affidavit filed with the appellate court saying the judge
misinterpreted the research.
The ACOEM, a society of more than 5,000 specialists who
indoor health hazards and treat patients with related
moved to develop a position paper on mold in early 2002.
then the medical society's president, asked the head of its
scientific affairs, Yale medical professor Jonathan Borak,
to set the
process in motion.
He turned to a retired deputy director of the National
Occupational Safety and Health -- part of the CDC -- to
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
lawsuit at that point, though he was a consultant on other
GlobalTox Inc., a firm that regularly worked for the defense
cases. And Dr. Hardin says he consulted for the defense in a
while he was helping write the ACOEM paper.
In a Feb. 27, 2002, email, Dr. Borak told Dr. Hardin: "That
paper would be prepared by you and your GlobalTox
Borak says he believes he didn't know at the time that
mold defense work.
A GlobalTox colleague who aided Dr. Hardin was Bruce Kelman,
president of the firm, which recently changed its name to
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
are paid $375 to $500 an hour for work on mold cases, court
• The Situation: Mold defendants rely on medical-society
papers that reject a link to serious ills, but papers were
scientists who often work for defense side in mold cases.
• The Debate: Whether courts get accurate or skewed view of
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
immunology and allergy at the medical school of the
California, Los Angeles. He, too, has served as a defense
numerous mold suits. Dr. Saxon says he is paid $510 an hour
help. If called to testify in court, his rate rises to $720
according to a deposition he gave.
Until he retired from UCLA in September, money he earned as
defense expert was paid to the university, and he says UCLA
him a little less than half of it. Dr. Saxon estimates he
$250,000 to $500,000 a year from expert defense work, which
The ACOEM knew about mold defense work by the authors of its
Hardin informed the society in a Sept. 23, 2002, document
letterhead. Labeled "confidential" and "share only with the
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
been retained by both the defense and plaintiff bar in
relating to indoor mold." Both say they work mostly for the
Internal ACOEM documents indicate that as the paper was
in August 2002, there was concern within the society that
the paper was
too friendly to defense interests. Its authors were asked to
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
from the society's communications director. (The email was
a plaintiff's attorney in a mold case, Karen Kahn.)
Dr. Borak, the head of the society's council on scientific
suggested sending a draft for review to one particular mold
Michael Hodgson, director of the occupational safety and
at the U.S. Veterans Health Administration. Dr. Hardin
said it would be "inappropriate to add ad hoc reviewers who
visible advocates for a point of view the draft position
and finds lacking." The draft ultimately wasn't sent.
'A Defense Argument'
In September 2002, Dr. Borak emailed colleagues that "I am
a challenge in finding an acceptable path for the proposed
paper on mold." He said several reviewers "find the current
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
mold exposure. The authors' "views, if prejudicial, were
Borak says. "It went through a dramatic change of top-heavy
reviews." He says objections come mainly from "activist
find it "annoying."
Drs. Hardin and Kelman say the paper has been controversial
challenged "a belief system" that mold can be toxic indoors.
system is built up and there is anger when the science
that belief system," Dr. Kelman says.
The Manhattan Institute, a conservative think tank, paid
$40,000 to prepare a lay version of the paper. That version
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
writers of the longer paper plus a fourth, who also is a
Lawyers defending mold suits also cite a position paper from
American Academy of Allergy, Asthma and Immunology. This
paper says it
concurs with the ACOEM that it is highly unlikely enough
could be inhaled to lead to toxic health effects.
Among the academy paper's five authors is Dr. Saxon.
Terr, a San Francisco immunologist, has worked as a defense
mold cases. The academy published the paper in its Journal
and Clinical Immunology last February, not citing the
of either man. The publication later ran a correction
The academy's president says officials were aware Dr. Saxon
expert witness. "We should have published their [disclosure]
with the paper," says the official, Thomas Platts-Mills. He
lapse resulted from a variety of factors, including
whose responsibility the disclosure was.
A third author of the academy's paper, Jay Portnoy, chief of
asthma and immunology at the Children's Mercy Hospital in
Mo., says he "felt that there was an agenda" -- the effort
biased toward denying the possibility of there being harmful
from mold on human health." He says he considered removing
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
proven to cause allergic rhinitis, with symptoms like
throat and sneezing. Dr. Saxon denies the authors had a bias
they applied a high standard for proving mold causes a
effect. He says he didn't skew the content of Dr. Portnoy's
rewrote it because it was "too diffuse." Dr. Terr in San
didn't return a call seeking comment.
In New York, the Frasers are appealing the refusal of the
state Supreme Court Justice Shirley Werner Kornreich, to let
expert testify that indoor mold caused their health
Frasers had moved into the East Side Manhattan apartment in
2002 suit said they repeatedly complained to the co-op's
dampness and leaks as their health deteriorated.
Their appeal attacks the credibility of mold position papers
scientists who work for defendants. "What you have here is
experts authoring papers under an official guise," says
Elizabeth Eilender. Justice Kornreich declined to comment.
Write to David Armstrong at email@example.com
Corrections & Amplifications:
Harriet Ammann, a toxicologist, says she has been paid as an
plaintiffs in three mold cases. This article reports that
said she had been paid for her work in only one case.
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