NETTI v. AUBURN ENLARGED CITY SCHOOL DISTRICT (2007)

 Defendant appeals from an order that, inter alia, denied its motion for summary judgment dismissing the complaint in this toxic tort action.   In support of its motion, defendant contended plaintiffs cannot meet the Frye test inasmuch as they cannot establish, based on generally accepted scientific principles, that their exposure to alleged harmful airborne substances while they were students at defendant's school building caused the symptoms for which they seek damages (see Frye v. United States, 293 F. 1013, 1014).   We reject that contention.   Although defendant met its initial burden by submitting an expert's affidavit establishing that there was no scientifically-based causal relationship between plaintiffs' exposure and symptoms, plaintiffs raised a triable issue of fact.   The record contains sufficient epidemiological evidence to support a finding of general causation, i.e., that the atypical molds found to be present in the school building can cause plaintiffs' symptoms (see generally Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 448, 824 N.Y.S.2d 584, 857 N.E.2d 1114, rearg. denied 8 N.Y.3d 828, 828 N.Y.S.2d 289, 861 N.E.2d 104).   In addition, the affidavit of plaintiffs' expert is sufficient to support a finding of causation.   There is no requirement that an expert precisely quantify exposure levels or establish a dose-response relationship.   Rather, an expert may use a methodology generally accepted in the scientific community in concluding that the particular exposure caused the plaintiffs' symptoms (see id.;  Jackson v. Nutmeg Tech., Inc., 43 A.D.3d 599, 601, 842 N.Y.S.2d 588).   Here, plaintiffs' expert determined specific causation by the use of the scientifically-accepted methodology of differential diagnosis (cf. Marso v. Novak, 42 A.D.3d 377, 378, 840 N.Y.S.2d 53;  see generally Terry v. Ottawa County Bd. of Mental Retardation & Dev. Delay, 165 Ohio App.3d 638, 656-658, 847 N.E.2d 1246, 1259-1261, mod. on other grounds, Terry v. Caputo, 115 Ohio St.3d 351, 875 N.E.2d 72 [2007];  Alder v. Bayer Corp., 61 P.3d 1068, 1084 [Utah 2002] ).   We have reviewed the remaining contention of defendant with respect to Supreme Court's denial of that part of its motion seeking, in the alternative, to preclude plaintiffs from presenting medical evidence at trial, and we conclude that there is no basis in the record for granting such relief.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: