...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. Portnoy says a section he contributed was rewritten by Dr.
Saxon to be "a lot more negative."
Amid Suits Over Mold, Experts Wear Two Hats
Authors of Science Paper Often Cited by Defense Also Help in Litigation
By DAVID ARMSTRONG
Wall Street Journal
January 9, 2007
...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.
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
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
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
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
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
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
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
the paper wrongly says mold isn't proven to cause allergic rhinitis, with symptoms like
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
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
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.
|San Diego Education Report
Are doctors the new lawyers?
Jury Finds "Toxic Mold" Harmed Oregon Family, Builder's
Arbitration Clause Not Binding
The case (Haynes vs. Adair Homes Inc.) is a first in the Northwest to award personal
injury damages to a family exposed to toxic mold in a newly built home. "This verdict is
significant because it holds construction companies responsible when they negligently
build sick buildings,” said Kelly Vance, the family's attorney.
(PRWEB) March 9, 2005 -- A Clackamas County jury on Friday (March 4, 2005) held
Adair Homes Inc. responsible for faulty construction practices that caused toxic mold to
thrive inside Paul and Renee Haynes' new home in Sandy, Oregon. The jury also found
Adair's negligence caused illness in Mrs. Haynes and the couple's two small children –
Michael, 6, and Liam, 4. The family experienced severe respiratory, digestive and
cognitive impairment. One half of a million dollars was awarded to the injured family.
The case is a first in the Northwest to award damages for personal injury to a family
exposed to mold in a newly built home. "This verdict is significant because it holds
construction companies responsible when they negligently build sick buildings,” said
Kelly Vance, the family's attorney. Adair Homes, Inc. which builds hundreds of
residences each year in Oregon, Washington and Idaho, built the house on the Hayne's
five acres in early 2002. Four months after moving in and becoming ill, the family
discovered rampant mold growth inside the walls of their new home. Dry wall and
insulation were installed while the frame was wet from recent heavy rains. Evidence
presented during the trial proved there was standing water in the wall cavities and the
crawl space long after the construction was completed. This led to the growth of the
toxigenic fungi. “You couldn’t have made the framing in that house more wet if you had
sprayed it with a firehose," stated Vance.
By the time the Haynes discovered the mold, it was too late. Mrs. Haynes and the
children were exhibiting neurologic and immune system damage. Paul Haynes reported
the problem to Adair Homes, but the company refused to take responsibility. The family
was forced to flee their new house in an effort to save the health of the mother and
Two separate medical evaluations substantiated that both Renee Haynes and
her son, Michael, had mold antibodies in their blood, indicative of dangerous
exposure levels to mold.
Numerous experts, including a fungal immunologist, an occupational therapist and
a neuropsychologist testified concerning the Haynes children's developmental and
sensory integration disorders that began shortly after moving into the Adair built home.
The family's treating physicians and therapists agreed that Liam’s and Michael’s medical
needs from the mold exposure will continue for several years to come. Michael’s teacher
testified that he was placed in a special disabled room at school and may need to
there until at least junior high school. She expects Liam to suffer the same fate.
Amazingly, the Haynes family almost did not even get to tell their story to a jury. Adair,
like many other commercial entities, utilizes an arbitration clause in its contract. That
clause designates a specific preferred arbitration service. Adair uses Construction
Arbitration Services, Inc., a company based far away from Adair's market, in Dallas,
Texas. After the case was filed, Adair moved to stay the case pending arbitration
and submitted an affidavit from the owner of the arbitration service, Marshall Lippman.
The judge allowed the case to go to trial when the family's attorney showed that
had submitted a false affidavit concealing the fact that he had been disbarred by the
State of New York and Washington D.C. The disbarments occurred because Lippman
had been found to have stolen funds from his clients.
Dr.Bruce Kelman of GlobalTox,Inc, a Washington based environmental risk
management company, testified as an expert witness for the defense, as he does in
mold cases throughout the country. Upon viewing documents presented by the
Hayne's attorney of Kelman's prior testimony from a case in Arizona, Dr.
Kelman altered his under oath statements on the witness stand.
He admitted the Manhattan Institute, a national political think-tank, paid
GlobalTox $40,000 to write a position paper
regarding the potential health risks of toxic mold exposure. Although much medical
research finds otherwise, the controversial piece claims that it is not plausible the types
of illnesses experienced by the Haynes family and reported by thousands from across
the US, could be caused by "toxic mold" exposure in homes, schools or office building
In 2003, with the involvement of the US Chamber of Commerce and ex-developer, US
Congressman Gary Miller (R-CA), the GlobalTox paper was disseminated to the real
estate, mortgage and building industries' associations. A version of the Manhattan
Institute commissioned piece may also be found as a position statement on the website
of a United States medical policy-writing body, the American College of Occupational
and Environmental Medicine [ACOEM]
|News, information and ideas about our
education system, courts and health care
by Maura Larkins