Buist v Bromley Co., LLC

[*1] Buist v Bromley Co., LLC 2020 NY Slip Op 50022(U) Decided on January 9, 2020 Supreme Court, Kings County Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 9, 2020
Supreme Court, Kings County

Ashley Buist, Plaintiff,

against

The Bromley Company, LLC and Punia and Marx, Incorporated, Defendants.



22081/09



Attorney for Plaintiff:

Justin Edward Mitchell, Esq.

Mitchell Law Firm LLC

1661 International Place Drive, Suite 400

Memphis, Tennessee 38120

Attorney for Defendants:

John Lyddabe, Esq.

Dorf & Nelson, LLP

555 Theodore Fremnd Avenue

Rye, New York 10580

Co-Counsel for Defendants:

Arthur P. Xanthos, Esq.

Gartner + Bloom, P. C.

801 Second Avenue, 11th Floor

New York, New York 10017
Francois A. Rivera, J.

BACKGROUND

On August 31, 2009, plaintiff Ashley Buist (hereinafter Buist) commenced the instant action for damages for personal injuries by filing a summons and verified complaint with the Kings County Clerk's office (KCCO). On September 4, 2009, Buist filed an amended verified complaint. On December 18, 2009, the defendants, The Bromley Company, LLC and Punia and Marx, Incorporated filed a joint verified answer with counterclaim. On December 23, 2009, Buist filed a reply to the defendants' counterclaim.

Buist's amended verified complaint alleges forty-six allegations of fact in support of two causes of action. The first and second causes of action allege that the defendants were the owners and possessors of a certain multiple dwelling residential property (hereinafter the subject [*2]property); that they allowed an unsafe, hazardous and toxic condition to exist; that Buist was a lawful tenant of the subject property, and that she was rendered ill by the exposure to the hazardous condition. It further alleged that the condition was such that Buist was forced to leave her apartment for her own safety.

The defendants have asserted four affirmative defenses and one counterclaim for attorney's fees based on the lease agreement.

By notice of motion filed on March 27, 2018, the defendants sought an order dismissing the complaint pursuant to CPLR 3212, and/or in the alternative, the defendants sought an order precluding Dr. Irene Grant (hereinafter Dr. Grant), Buist's treating physician, from testifying at trial on the basis that her anticipated opinion on causation was not based on generally accepted scientific principles.

By decision and order dated December 4, 2018, the Court denied the defendants' motion for summary judgment seeking dismissal of the complaint and granted the defendants' request, in the alternative, for a pre-trial evidentiary hearing pursuant to Frye v United States (293 F 1013 [DC Cir1923]) to preclude plaintiff's experts from testifying at trial that exposure to indoor mold caused plaintiff's alleged illness.

The Court presided over the hearing conducted in accordance with Frye v United States on February 26, 2019, February 27, 2019 and February 28, 2019. Dr. S. Michael Phillips (hereinafter Dr. Phillips) testified for the defense and Dr. Grant testified for the plaintiff. At the conclusion of the hearing, the parties were given an opportunity to submit a request for findings of fact pursuant to CPLR 4213. Both parties did so. The Court makes the following findings of fact and conclusions of law following the Frye hearing.

FINDINGS OF FACT

Dr. Grant is as an expert in internal medicine and infectious disease and has been Buist's treating physician since April 2011. Dr. Grant opined that she diagnosed the correct causation of Buist's illnesses based on Buist's response to therapy.

Dr. Grant is expected to opine that Buist alleged exposure to mold in the defendants' subject apartment caused the following thirteen (13) illnesses: mycotoxicosis; immunosuppression and multisystem disease; invasive polymicrobic infection; ulcerative nasal mucosis; nasal chondritis osteomyelitis; rhinosinusitis; adenitis; tonsillitis; pharyngitis; dermatitis; hair loss/alopecia; necrotic liver infection; and neurological/cognitive damage from toxic encephalopathy (hereinafter the subject thirteen illnesses).

Dr. Grant testified that she is unable to distinguish the amounts of the mold that Buist inhaled versus the amount absorbed through the skin. She further testified that she is unable to determine the amount of mold that Buist ingested. Dr. Grant testified that Buist was exposed to mold in locations other than the defendants subject apartment, including California and Florida. She investigated these separate exposures by reviewing the industrial hygienist reports and determined that there was no Bipolaris present in the California or Florida exposures, however, she believed there was Aspergillus and Stachybotrys in those locations.

Dr. Grant also testified that she eliminated these separate exposure locations as a potential cause by repeating her biomarker studies and seeing that she did not have classic Aspergillus antibody response nor a very elevated Stachybotrys response.

Dr. Phillip is a clinical immunologist with over 30 years of clinical and basic science experience in the fields of internal medicine, allergy and immunology. Dr. Phillip is also a Senior Scholar in Clinical Epidemiology at the University of Pennsylvania.

Dr. Phillip opined that it is generally accepted within the relevant community of scientists (i.e., allergists, immunologists, occupational and environmental health physicians) that exposure to mold causes human disease in three ways: an immune response in allergic individuals (hypersensitivity pneumonitis), direct infection by an organism (e.g., athlete's foot) and ingestion of mycotoxins (any toxic substance produced by a fungus) in large doses from spoiled food. He cited studies, and in particular, the AAAAI report, to support his depiction of the state of the science.

Dr. Phillip testified that it would be against the general acceptance in the medical community to ascribe a specific cause when there are multiple exposures (i.e. locations of exposure) without independently documenting each exposure and a disease free interval between them.

Bipolaris

Dr. Grant stated that tissue culture is the only way to diagnose Bipolaris. Dr. Grant relied on the finding of Bipolaris in a culture taken from Buist's nasal sinus in June 2016 for her opinion that some of these alleged illnesses were caused by exposure to Bipolaris in the defendant's subject apartment.

Contrarily, Dr. Phillip testified that it is not possible, or generally accepted as possible, that a mold culture in the year 2016 could be explained by an exposure that purportedly occurred in the year 2008 or earlier, as too much time elapsed between those periods and too many intervening exposures would have occurred. He also testified that a culture does not tell you how long mold was in the body or sinus. The actual exposure to some sort of toxic mold at the time of the onset of the signs and symptoms was never established by the plaintiff or Dr. Grant.

Dr. Phillip testified that a finding of mold in a culture from the sinus does not indicate that mold is the cause of the alleged illness. A mold's toxin, rather than the mold itself, is what can cause illness and related symptoms. The mold itself must be cultured to see if it produces a toxin. A culture, such as the one done on plaintiffs sinus in 2016, merely proves that there is a mold, but does not prove whether the mold is making a toxin.

Mycotoxicosis

Dr. Grant made her differential diagnosis of mycotoxicosis and ascribed the cause to a mold infection by testing plaintiffs urine for Trichothecenes, which came back positive. She opined that Stachybotrys mold was the cause of the trichothecenes mycotoxicosis.

However, Dr. Phillip testified that mycotoxicosis is merely a theoretical illness, which has never been established as being a real diagnosis and is not accepted by the medical literature. Dr. Phillip further stated that the amount of mycotoxin which was found in plaintiff's urine on one occasion was well below what is considered to be normal in normal people's urine, and that the laboratory that did the study used techniques which were not validated and otherwise failed to show any toxic reactions. He stated that nobody ever demonstrated the production of mycotoxins or that plaintiff had an antibody response to mycotoxins.

Immunosuppression

Dr. Grant diagnosed plaintiff with immunosuppression and multisystem disease, which she described as a way of saying that the plaintiff is a complex patient with multiple systems injured or sick and ill. In coming to her diagnosis that mold caused immunosuppression, Dr. Grant did testing of Buist's lymphocyte-immunity, her antibody responses, her levels of antibodies and evaluated her physical signs of immunosuppression. Dr. Grant was unable to say which type of mold caused the immunosuppression and multisystem disease.

Dr. Phillip testified that there is no evidence to support such a diagnosis. He further testified that the plaintiff underwent a comprehensive immunological evaluation looking at the constituents of her immune system, which all demonstrated normal. He stated that plaintiff does not have a history compatible with immune deficiency.

Dr. Phillip also testified that molds cannot cause individuals to become immunocompromised.

Invasive polymicrobic

Dr. Grant diagnosed plaintiff with invasive polymicrobic infection based on the biopsy of Buist's sinus which demonstrated Bipolaris and Candida. She testified that the Bipolaris and Candida caused the invasive polymicrobic infection.

Dr. Phillip described the diagnosis as a descriptor, rather than an actual illness, as it means that multiple different infectious agents have penetrated through the external mucosal lining and are getting into the deeper tissues causing an infection. Dr. Philip testified that in order to go about diagnosing such an illness, an endoscopy, culture and biopsy must be [*3]performed and that causation cannot be attributed to invasive polymicrobic infection without those three things being done. Dr. Phillip also testified that he did not see any evidence of an endoscopy or biopsy being done.

Ulcerative nasal mucosis

Dr. Grant diagnosed ulcerative nasal mucosis through physical examination, as well as cultures for other microbes besides mold.

Dr. Phillip testified that diagnosis of the illness should be done by looking through an endoscope. He opined that to ascribe a cause, you would have to do a culture of the lining of the nose and perhaps a biopsy. In reviewing plaintiff's medical records, Dr. Phillip did not see any culture specifically with respect to ulcerative nasal mucosis. There is no evidence in plaintiffs medical records that her nasal ulcers were ever biopsied.

Nasal chondritis Osteomyelitis

Dr. Grant made her diagnosis of nasal chondritis osteomyelitis based on plaintiff's patient history and physical examination, as well as radiographic studies and the opinion of an otolaryngologist surgeon. Dr. Grant testified that nasal chondritis osteomyelitis was caused by Bipolaris.

Dr. Phillip testified that the appropriate protocol for diagnosing nasal chondritis osteomyelitis is to do an X-Ray or MRI to see whether there is any physical evidence of it, then to biopsy the area of concern to see whether there is in fact osteomyelitis, and then to culture it. He testified that an MRI of plaintiff s head, including sinus area, did not show nasal chondritis osteomyelitis, and that there was no evidence of a biopsy or culture ever being done with respect to the diagnosis.

Rhinosinusitis

Dr. Grant made a differential diagnosis of rhinosinusitis based on the plaintiff's patient history and physical examination but was unable to say what caused it.

Dr. Phillip testified that an ENT doctor should make the diagnosis of rhinosinusitis either through an observation doing endoscopy or some form of imaging, either a CT scan or an MRI scan of the sinuses. One would then determine a cause by showing that it has a certain characteristic imaging picture and by culturing the sinuses to show that there are a large number of specific molds. Plaintiff's medical records indicate an attempt to determine the cause of plaintiff's rhinosinusitis through a one-time culture of the sinuses, in which Bipolaris was found.

Adenitis

Dr. Grant made a differential diagnosis of adenitis based on the plaintiff's patient history and physical examination to come to the opinion that it was related to fungus infection and/or toxic exposure. Dr. Grant was unable to say which type of mold caused adenitis. She failed to present any peer reviewed literature before the Court that supports her opinion that adenitis can be caused by mold.

Dr. Phillips testified that a diagnosis of adenitis is made upon physical examination. In reviewing plaintiff's medical records, Dr. Phillips found nothing from any treating practitioners that said they saw adenitis, but did find records stating that they did not see it.

Tonsillitis

Dr. Grant's differential diagnosis to ascribe the cause of the tonsillitis was also based only on the patient history and physical examination of the plaintiff. She was unable to say which type of mold caused tonsillitis. Dr. Grant failed to present any peer reviewed literature before the Court that supported her opinion that mold exposure can cause tonsillitis.

Dr. Phillip testified that if one were to diagnose tonsillitis, you would examine the throat and then culture it to determine the cause. He testified that tonsillitis is often caused by things other than infection and that without a culture, it is not possible to determine its cause.

Pharyngitis

Dr. Grant made her differential diagnosis for pharyngitis and ascribed the cause of it to mold found in the defendants' subject apartment based on the plaintiff's patient history and physical examination. She was unable to say which type of mold caused pharyngitis.

Dr. Phillip testified that in order to diagnose pharyngitis, you would examine the back of the patient's throat, and then culture it to determine the cause so that it can be treated properly. Dr. Phillip found no evidence of any culture ever being done with respect to this diagnosis.

Dermatitis

Dr. Grant testified that the cause of plaintiff's dermatitis was more probable than not, the Stachybotrys Trichothecenes. She failed to present peer-reviewed literature to the Court which indicates that dermatitis can be caused by mold.

Dr. Phillip testified that in order to determine whether a particular mold caused dermatitis, a practitioner would have to do a skin scraping to see if there was mold on the surface and do a skin biopsy to see if any mold is visible or whether there was some other process by which one could explain the illness.

Dr. Phillip further testified that, from his review of plaintiff s records, there was no evidence that plaintiff had infectious skin. Plaintiff had some ulcers on other parts of her skin which were diagnosed as vasculitis, and reports indicated that skin biopsies revealed no mold in the area of the skin.

Dr. Phillip further testified that exposure to airborne molds is not recognized as a contributing factor in atopic dermatitis.

Hair Loss

Dr. Grant opined that plaintiff's alleged hair loss was more probable than not, caused by the subcutaneous infection with Bipolaris. Dr. Grant failed to present peer-reviewed literature to the Court which indicates that hair loss can be caused by mold.

Dr. Phillip testified that a biopsy of the area of the hair loss would be necessary in order to determine the cause of the hair loss and there was no indication that a biopsy of plaintiff's scalp was ever performed.

Necrotic Liver Infection

Dr. Grant opined that plaintiff suffered from necrotic liver infection caused by mold exposure in the subject apartment despite the fact that the liver mass, which was removed in 2007, was never tested for fungi. Dr. Grant conceded that nothing definitive could be concluded because fungal testing was not done.

Dr. Phillip testified that in order to diagnose necrotic liver infection and determine its cause, you would take a biopsy of the liver and do a histology to see if there are any signs of infection, e.g., hyphae of fungus, bacteria, or changes induced by a virus infection. He further testified that a biopsy was performed on the liver mass and no signs of infection were present.

Toxic Encephalopathy

Dr. Grant testified that she could not clearly say what was the direct cause of plaintiff's toxic encephalopathy. Dr Grant could not state the type of mold or the amount of mold that plaintiff allegedly inhaled or ingested. She did not present any peer reviewed literature before the Court that supports the opinion that mold exposure can result in toxic encephalopathy.

Dr. Phillip testified that it is commonly accepted that a practitioner would diagnose toxic encephalopathy by doing an objective neurological evaluation, an objective neuropsychological evaluation, an MRI of the brain, cultures, if necessary, of the spinal fluid and other collaborating. He testified that an MRI of plaintiff's brain was taken and resulted in otherwise normal findings. Dr. Phillip further testified that neuropsychiatric testing is one of the major criteria for diagnosing toxic encephalopathy.

Dr. Grant conceded that she is not a neurologist or neuropsychiatrist.

Summary of testimony

In sum, Dr. Phillip opined with a reasonable medical certainty that Dr. Grant's opinions on causation were not based on medically or scientifically sound and generally accepted methodologies.

Dr. Grant's testimony establishes that her opinion on specific causation is rendered as treating physician and is based on her expertise in internal medicine and infectious diseases, as well as the experience she has gained through her own research and observational studies.

LAW AND APPLICATION

In the instant matter the defendants do not dispute the following salient facts. Dr. Grant is a physician with a specialty in internal medicine and infectious disease and has been Buist's treating physician since April 2011. Nor do they dispute that Dr. Grant possesses the requisite education, medical training and experience to provide competent medical treatment to Buist. Nor can they dispute that Dr. Grant has either authored or presented numerous scholarly presentations regarding mold, toxins and their role in causing illness. Dr Grant has utilized, among other things, differential diagnosis in determining Buist's various ailments. The use of differential diagnosis in the treatment of patients is generally accepted in the medical community.

The defendants have clarified that they seek a Frye hearing in an effort to preclude Dr. Grant from offering an opinion regarding the cause of Buist's illnesses. In particular, the defendants contend that Dr. Grant's anticipated opinion that Buist's exposure to mold in the subject apartment caused the aforementioned thirteen subject ailments is novel and not based on generally accepted scientific principles or generally accepted methodologies in science or medicine.

In the case at bar, Dr. Grant's anticipated opinion is that Buist was exposed to certain molds found in the defendants' subject apartment that were capable of causing the thirteen subject illnesses. The evidence submitted by Dr. Grant consisted of her own treatment, her own research and literature, and scientific article, texts and journals authored by either her or by others. The most significant fact in the instant case is that Dr. Grant is Buist's treating physician. A treating physician, unlike a physician who examines the plaintiff only for purposes of litigation whether at the instance of a plaintiff or a defendant, may testify at trial without there having been expert disclosure pursuant to CPLR 3101 (d) (Jing Xue Jiang v Dollar Rent a Car, Inc., 91 AD3d 603 [2nd Dept 2012]).

The long-recognized rule of Frye v United States is that expert testimony based on scientific principles or procedures is admissible but only after a principle or procedure has gained general acceptance in its specified field (People v Wesley, 83 NY2d 417, 422 [1994] quoting Frye v United States, 293 F 1013, 1014 [DC Cir1923]). The particular procedure need not be unanimously indorsed by the scientific community but must be generally acceptable as reliable (Id. at 423 quoting People v Middleton, 54 NY2d 42, 49 (1981) [footnote omitted]).

Once Frye has been satisfied, the question is whether the accepted techniques were employed by the experts in this case (People v Wesley, 83 NY2d at 429 quoting People v Middleton, 54 NY2d at 50). The focus moves from the general reliability concerns of Frye to the specific reliability of the procedures followed to generate the evidence proferred and whether they established a foundation for the reception of the evidence at trial (id.).

The trial court determines, as a preliminary matter of law, whether an adequate foundation for the admissibility of this particular evidence has been established (id.). Novel scientific evidence may be admitted without any hearing at all by the trial court (id. at 426), such as where the reliability of the procedures has been ... accepted by all of the appellate courts that have addressed the issue (see People v Middleton, 54 NY2d at 49-50; see also People v LeGrand, 8 NY3d 449, 458 [2007]).

The party seeking a Frye hearing has the initial burden of showing that there is a question as to whether an expert's methodologies or deductions are based upon principles that are sufficiently established to have gained general acceptance as reliable (see People v Oddone, 89 AD3d 868, 869-870 [2nd Dept 2011]; see also Ellis v Eng, 70 AD3d 887, 891-892 [2nd Dept 2010]). The moving party must show, in effect, that the proffered evidence is sufficiently novel to implicate Frye concerns (see Lipschitz v Stein, 65 AD3d 573, 575—76 [2nd Dept 2009]; Leffler v Feld, 51 AD3d 410 [1st Dept 2008]).

Where a Frye hearing is proper, the party proffering the novel evidence has the burden of establishing general acceptance (see In re Bausch & Lomb Contact Lens Sol. Prod. Liab. Litig., 87 AD3d 913 [1st Dept 2011]; Lewin v County of Suffolk, 18 AD3d 621, 622 [2nd Dept 2005]). The types of materials relevant to a determination of general acceptability" include "court [*4]opinions, texts, laboratory standards or scholarly articles," as well as the testimony of expert witnesses. (see People v Wesley, 83 NY2d at 437).

The plaintiff has proffered, among other things, two court opinions to establish the general acceptability in the scientific and medical community of the opinion that indoor mold may cause, that is general causation. Plaintiff cited the decision and orders issued by Justice Battaglia in the matter of Rosati v Brigham Park Co-Op. Apartments, SEC No.2, Inc., 36 Misc 3d 1214(A) [Kings Sup. Ct. 2012] and by Justice Scarpulla in the matter of Granirer v The Bakery, Inc., 43 Misc 3d 1221(A) [NY Sip, Ct. 2014]). In both cases the court was required to assess the expert opinion of Dr. Irene Grant on the issue of general causation. Both decisions reflect the respective judge's findings that the opinion that indoor mold can cause illness is generally accepted in the medical and scientific community.

The Frye test typically considers the admissibility of new scientific tests, techniques, or processes, and has also been applied to determine the admissibility of expert testimony based on new social and behavioral theories (see Ratner v McNeil—PPC, Inc., 91 AD3d 63, 72 [2nd Dept 2011]). Most pertinent here, New York courts have also applied the Frye test to assess the reliability of an expert's theory of causation in a particular case (Lugo v New York City Health & Hosps. Corp., 89 AD3d 42, 57 [2nd Dept 2011]).

In the matter of Rosati v Brigham Park Co-Op. Apartments, SEC No.2, Inc., 36 Misc 3d 1214(A) [Kings Sup. Ct. 2012], 2012 NY Slip Op 51315(U), the Supreme Court conducted a pre-trial evidentiary hearing in response to defendants' motion pursuant to Frye v United States (293 F 1013 [DC Cir1923]) to preclude plaintiff's experts, from testifying at trial that exposure to indoor mold caused plaintiff's alleged illness. After the hearing, the Court ruled, among other things, that plaintiff's expert, Dr. Irene Hanchett Grant, a board-certified specialist in internal medicine and infectious diseases, would be permitted to testify that exposure to indoor mold of the type allegedly present in the plaintiff's apartment could cause the illness he alleged, i.e., general causation. However, it would still be the plaintiff's burden to establish that he was exposed to sufficient levels of mold to cause the illness he alleges, i.e., specific causation. The Court also found, among other things, that Dr. Hanchett Grant based her opinions on her own actual treatment of the patient, as well as her own clinical research.

In support of the instant application the defendants have annexed the affidavit of Dr. Phillip. Dr. Phillip opined that while there is general agreement that indoor dampness and mold are associated with upper respiratory complaints, the observed association between such conditions and such ailments is not strong enough to constitute evidence of a causal relationship. In other words, association is not equivalent to causation. He further opined that it is generally accepted within the relevant community of scientists (i.e., allergists, immunologists, occupational and environmental health physicians) that exposure to mold causes human disease in three ways: an immune response in allergic individuals (hypersensitivity pneumonitis), direct infection by an organism (e.g., athlete's foot) and ingestion of mycotoxins (any toxic substance produced by a fungus) in large doses from spoiled food. He cited studies, and in particular, the AAAAI report, to support his depiction of the state of the science.

The aforementioned opinion of Dr. Phillip was favorably referenced in the matter of Cornell v 360 West 51st Street Realty, LLC, 22 NY3d 762 [2014], involving a Frye hearing on a nearly identical issue. In Cornell, the Court of Appeal clarified the standard for evaluating whether a tendered novel opinion satisfies the Frye standard for admissibility. To satisfy the Frye standard regarding the admissibility of opinion testimony that exposure to mole causes certain illness, the proponent must demonstrate both general and specific causation. Such an opinion on causation should set forth a plaintiff's exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation) (Parker v Mobil Oil Corp., 7 NY3d 434 at 448 [2006]). Parker explains that "precise quantification" or a "dose-response relationship" or "an exact numerical value" is not required to make a showing of specific causation (id. at 448—449). A plaintiff, nevertheless, has a burden to establish sufficient exposure [*5]to a substance to cause the claimed adverse health effect (see id. at 449).

In Cornell, the Court of Appeals adopted the reasoning of the Circuit Court of Appeals for the Eigth Circuit in Wright v Willamette Indus., Inc., 91 F.3d 1105, 1107 [8th Cir.1996], who commented in pertinent part that:

"It is, therefore, not enough for a plaintiff to show that a certain ... agent sometimes causes the kind of harm that he or she is complaining of. At a minimum, ... there must be evidence from which the finder of fact can conclude that the plaintiff was exposed to levels of that agent that are known to cause the kind of harm that the plaintiff claims to have suffered" (91 F.3d 1105, 1107 [8th Cir.1996]).

None of the decisional case law proffered by the defendants directly addressed the issue of whether a Frye hearing is appropriate to determine the admissibility of a treating physician's opinion on causation of a patient's illnesses. All the proffered decisional case law appeared to be limited to the opinion testimony of experts who were not treating physicians.

Dr. Grant arrived at her conclusions by, among other things, applying differential diagnosis and by observing Buist's response to certain treatment modalities. Differential diagnosis is a generally accepted methodology by which a physician considers the known possible causes of a patient's symptoms, then, by utilizing diagnostic tests, eliminates causes from the list until the most likely cause remains. In short, differential diagnosis "requires physicians to both 'rule in' and 'rule out' the possible causes of the patient's symptoms through accepted scientific reasoning and diagnostic tests (Jazairi v Royal Oaks Apt. Assoc., L.P., 2005 WL 6750570, at , 2005 U.S. Dist LEXIS 47915, at 30 [S.D.Ga.2005], aff'd 217 Fed.Appx. 895 [11th Cir.2007]). Differential diagnosis, of course, assumes that general causation has been proven (Norris v Baxter Healthcare Corp., 397 F.3d 878, 885 [10th Cir.2005], quoting Hall v Baxter Healthcare Corp., 947 F. Supp. 1387, 1413 [D.Or.1996]; see also Ruggiero v Warner-Lambert Co., 424 F.3d 249, 254 [2nd Cir.2005]).

As a treating physician, Dr. Grant may not be prevented from testify regarding her medical care and treatment of Buist, including her diagnosis and prognosis and all other matters appropriately within the scope of her delivery of medical care. Furthermore, Dr. Grant's opinion that mold exposure is capable of causing illness is sufficiently supported in the medical and epidemiological community to have gained general acceptance, that is, to satisfy the general causation prong of analysis under Frye. To the extent that Dr. Grant's opinions on specific causation may not have gained general acceptance in the medical and epidemiological community, the Court finds that her status as a treating physician necessitates a different analysis than the opinion of a non treating expert. Dr. Grant should be permitted to state her opinion and the basis for it. The opinion should not be precluded. Dr. Grant's anticipated opinion on specific causation is subject to challenge at trial by the raising of specific objections, by cross examination and by the submission of contrary expert opinion.

There is ample authority for permitting Dr. Grant's opinion when it is based on the her own studies, observations and experience, notwithstanding, that it may not be based on generally accepted principles and methodologies (see People v Oddone, 22 NY3d 369). In fact, an expert opinion based on personal training and experience is not subject to a Frye analysis (Doviak v Finkelstein & Partners, 137 AD3d 843 [2nd Dept 2016]). Defendants, in effect have argued that Dr. Grant, as a scientist can express no opinion based on her own experience, but must rely only on published studies or texts. This argument was rejected by the Court of Appeals in its decision and order in the matter of People v Oddone, 22 NY3d 369 [2013]:

"It is true that an opinion based on experience alone is ordinarily less reliable than one based on generally accepted science. An expert may well overvalue his own experience, or even exaggerate or fabricate it. But these flaws can be exposed by cross-examination, and by the opinions of opposing experts. ...There will ordinarily be no unfairness as long as the jury is not misled into thinking that the expert's opinion reflects a generally accepted principle" (22 NY3d at 376).

CONCLUSION

The motion of defendants The Bromley Company, LLC and Punia and Marx, Incorporated for an order after a Frye hearing precluding Dr. Grant from offering an expert opinion on the cause of the illnesses that Ashley Buist is claiming is denied.

The foregoing constitutes the decision and order of the Court.

Dated: January 9, 2020

HONORABLE FRANCOIS A. RIVERA

J.S.C.