Expert Testimony on Mold’s Potential Health Effects Met Frye Test
January 15, 2003
The Nebraska Supreme Court reversed the trial court’s exclusion of expert testimony regarding the potential hazards of the presence of certain molds found indoors. Mondelli v. Kendel Homes Corporation et al, 262 Neb. 263, 631 N. W. 2d 846 (2001).
In 1992, the Mondelli’s took possession of a new home constructed by defendants, Kendel Homes Corporation (Kendel) and inspected by the City of Papillion, Nebraska (City), Kendel’s co-defendant. The Mondellis quickly noticed water intrusion through the outside walls of the home. Kendel took measures to seal the brick façade and other portions of the outside cladding. However, the leaks continued. Air testing revealed the presence of a high concentration of toxic mold. The Mondelli’s reported negative health effects from the mold and consulted a physician who diagnosed them with asthma and recommended that the Mondellis move out of the house.
Ultimately, the Mondellis sued Kendel for construction defects under theories of negligence, breach of warranty and strict liability. The Mondellis also sued the City for negligence in inspecting the house and approving the plans and construction. During the trial, the Mondellis sought to introduce the testimony of an expert who would have testified about her recommendations concerning the air quality of the home and the potential hazards of mold in the indoor environment. The trial court excluded this testimony on the basis that: 1) there were no standards for sampling of the level of spores or mold and any related hazard or danger; and 2) the offered testimony did not have general acceptance in the scientific community under the standard set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
The Nebraska Supreme Court reversed the trial court and found that the expert had met the Frye standard of general acceptance in the scientific community, based on her review and testimony regarding the scientific literature of the effect of mold on human health. In addition to her education and experience, she had read articles published in the Journal of Allergy and Clinical Immunology and the American Journal of Public Health. The Court concluded that the exclusion of this testimony was prejudicial error. The Court reversed a directed verdict for the builder and remanded the case for a new trial.
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