In the last 15 years, we have all heard about sick building syndrome. Many doubt that it exists at all. Some say it is in the mind of the patient. But, to those allegedly inflicted, it is a very real illness in some cases -- one that has resulted in near permanent incapacitation.

Sick building syndrome has been associated with various indoor pollutants, many of which have been airborne. Included on the list of causes have been bacteria and spores circulated through deficient ventilation systems.

New, air tight buildings, with windows that do not open, have often been the focus of contention. And one complaint that has re-occurred has concerned fumes associated with new carpet installations. Some have claimed to have become very sick from these strong vapors. While more and more people are claiming to be sick building victims, it is still very hard to prove, in Court, that the building, or its contents, are to blame.

The problem is referred to by lawyers as one of "causation." It is not enough to allege that some chemical or biological agent made you sick, you actually have to prove that the suspected substance caused the ill effects of which you have complained.

Who proves causation? Not you, not your neighbor, not your best friend. Usually, an expert must be retained to prove causation. In the case of a sick building claim, it is often a medical doctor who is retained as an expert for the victim.

In the case of a broken leg, or harm caused by an instrument left in a person's belly, causation is usually not hard to prove. But, causation can be very difficult to prove when the scientific field is generally new, such as this fairly new phenomenon known as sick building syndrome. In this area, there still exists much speculation, and experts must frequently rely on the more tentative studies, perhaps less relevant studies, than they otherwise might wish.

When a doctor relies on backup data that is too speculative or too remotely linked to the subject at hand, courts tend to reject the testimony, calling it "unreliable." A less kind term that has developed in the past 10 years is "junk science." Trial courts are considered to be a gatekeeper, charged with keeping junk science out of the courtroom.

Recently, in the federal appeals court decision of Heller v. Shaw Industries, the Court provided some guidance in determining when an expert has testimony that is sufficiently reliable that it will not fall as junk science.

In Heller, Plaintiffs had purchased a home, which contained newly installed carpeting. Not long after the carpet installation, the Plaintiffs became sick with asthma and other respiratory ailments. Their poor health lingered even after the allegedly offensive carpeting had been removed and ultimately, Plaintiffs sold the house for less than they had paid.

Mrs. Heller's personal physician suspected that the carpeting, manufactured by Shaw Industries, was the cause of the health problems. Apparently at his suggestion, Plaintiffs hired several experts to prove their case against the carpet manufacturer, including an environmental scientist, who tested the carpet fibers, and a medical expert, who opined that volatile organic gases that were released from the carpeting caused the various health problems.

After conducting a special hearing, the trial court ruled that neither expert offered sufficiently reliable testimony and dismissed the lawsuit. The court excluded the medical testimony largely because that expert cited no published studies which indicated that the levels of gases in the Heller home caused the kinds of symptoms suffered by the Plaintiffs and the doctor failed to rule out all possible alternative causes of the illnesses.

While the appeals court agreed that the lawsuit should have been thrown out, it opined that the trial court applied too rigid of a standard in deciding whether the experts had testimony that could be view as reliable. One important issue was wether the trial court properly excluded the doctor's testimony on the basis that he did not rely on published materials. The trial court was especially critical of the doctor's failure to refer to a published study indicating that gases at the allegedly present levels could cause the medical conditions suffered by the Plaintiffs. The appeals court ruled that it was unreasonable to always require reference to a published study, because medical opinions, in real life, are not always based on published studies.

In this case, the homeowner's experts were not reliable enough to warrant consideration. Without experts, they could not prove that the allegedly offensive carpeting actually caused their illnesses. And if the Plaintiffs could not prove causation, their lawsuit had to be dismissed.

What is the lesson? Sick building syndrome cases continue to be hard to win. People affected by this condition must realize that winning can involve a protracted, uphill battle. When experts are called to testify in favor of the sick party, the expert will be carefully examined to ensure that he/or she is sufficiently reliable so as to be considered by the jury.

People who have wrongfully become sick are entitled to their day in Court. If you feel that you have become injured, consult a qualified attorney in you area to evaluate your particular case.

The information provided in this column is written by Stuart Lieberman,a practicing environmental attorney, and is for general information purposes only. It is not legal advice and should not be used in place of legal advice.

Stuart Lieberman, Esq., and IRED.Com, Inc., will not accept any responsibilty for any reliance on the information in this column or any damages whatsoever resulting from reading this column.