DeRosa v. Lenox Farms Limited Partnership

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23-P-136 Appeals Court

THERESA DeROSA vs. LENOX FARMS LIMITED PARTNERSHIP.

No. 23-P-136.

Norfolk. October 4, 2023. – August 2, 2024.

Present: Rubin, Singh, & Hershfang, JJ.

Negligence. Landlord and Tenant, Habitability, Quiet enjoyment,
Consumer protection. Contract, Performance and breach.
Consumer Protection Act, Landlord and tenant. Evidence,
Expert opinion. Practice, Civil, Summary judgment.

Civil action commenced in the Superior Court Department on
August 27, 2020.

The case was heard by Joseph F. Leighton, Jr., J., on a
motion for summary judgment, and a motion for reconsideration
was considered by him.

Melissa J. Bruno for the plaintiff.
Gayatri R. Deodhar for the defendant.

RUBIN, J. This appeal arises from an award of summary

judgment to the defendant. See Mass. R. Civ. P. 56, 365 Mass.

824 (1974). As relevant here, the plaintiff brought claims for

negligence, breach of the implied warranty of habitability,
2

breach of the covenant of quiet enjoyment, breach of contract,

and violation of G. L. c. 93A, against her former landlord,

premised on her contention that the townhouse she rented from

the landlord contained harmful, airborne mold that negatively

affected her health. Because the record evidence was sufficient

with respect to these claims to raise genuine issues of material

fact, we reverse.

Facts. Our review of an allowance of summary judgment is

de novo. Blake v. Hometown Am. Communities, Inc., 486 Mass.

268, 272 (2020). We must view the record evidence, and all

reasonable inferences that can be drawn therefrom, in the light

most favorable to the nonmoving party. Id. Summary judgment is

appropriate only where, viewing the record in that light, there

is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. Mass. R. Civ. P.

56 (c), as amended, 436 Mass. 1404 (2002).

Viewing the record evidence, and all reasonable inferences

that can be drawn therefrom in the light most favorable to the

nonmoving party, here the plaintiff, see Blake, 486 Mass. at

272, the facts we must assume are true for present purposes

include the following.1

1 We express no opinion on any question of fact that is
disputed, as many of these are.
3

Prior to entering a lease for a townhouse with the

defendant, Lenox Farms Limited Partnership (Lenox), the

plaintiff, Theresa DeRosa, a diagnosed asthmatic, informed Lenox

that she "had allergies to dust, dust mites, [and] mold." She

expressed particular concern with whether the carpet in the

apartment was hypoallergenic. She was assured that it was

before entering into the lease on November 29, 2018. The lease

began the next day, November 30, and expired March 29, 2020.

A few days after moving into the townhouse, she began

having difficulty breathing. She also experienced dripping from

her eyes and sinus pressure, and had puffy and watery eyes. By

December 2018, she began seeking medical treatment for ongoing

symptoms that included recurrent sinusitis, rhinitis, and

postnasal drip.

In January 2019, the plaintiff presented to urgent care for

sinus congestion and earache. On two additional occasions that

same month, she again went to urgent care due to ongoing sinus

issues, earache, and related ailments. On January 28, 2019, she

presented to the Massachusetts Eye and Ear Otolaryngology office

for further medical evaluation.

On February 5, 2019, she sent an e-mail message to Lenox

regarding its assurances that she would be provided with

paperwork confirming that the carpet was hypoallergenic, which

she had to provide to her otolaryngologist in connection with
4

allergy testing. She stated that since moving into the

townhouse two months prior, she had been sick and having sinus

infections with watery eyes.

On February 8, 2019, she learned from Lenox's community

director that the carpet was not, in fact, marketed as

hypoallergenic, although the community director opined that it

was "indeed hypoallergenic." On February 26, 2019, her treating

otolaryngologist submitted a form to Lenox requesting as a

reasonable accommodation the removal of the carpeting from the

townhouse. On February 27, 2019, DeRosa informed Lenox that she

had been out of town and traveling abroad, and that during this

time, her sinus issues had cleared up and her eye swelling had

gone down.

These symptoms returned, however, immediately upon her

return to the townhouse in March 2019. Her otolaryngologist

recommended that she see an allergist, and on March 21, 2019,

she presented to Dr. Michael Young of South Shore Allergy and

Asthma Specialists, P.C. Among other things, Dr. Young's

records state that DeRosa's skin tests were positive for

aspergillus mold. Dr. Young completed a second reasonable

accommodation request form stating that DeRosa had asthma that

was triggered by her allergy to mold and that it is a

potentially life-threatening condition. He stated that removal

of the wall-to-wall carpeting would "remove a major source of
5

mold in her living environment." He indicated that he would be

willing to testify in court concerning the information provided

on the form.

On April 1, 2019, DeRosa presented to Dr. Young's office on

an emergency basis. She stated that despite using prescribed

medications and inhalers, she was still experiencing postnasal

drip and cough. She reported that in the past four weeks, her

asthma had kept her from getting much of her work done "[m]ost

of the time." Dr. Young's assessment of DeRosa was asthma with

acute exacerbation and allergic rhinitis due to allergen.

Later that month, Lenox removed the carpeting from the

townhouse and replaced it with hardwood flooring. Nonetheless,

DeRosa continued to experience physical symptoms without relief

in the townhouse. In June 2019, DeRosa presented Lenox with a

letter from Dr. Young stating that mold allergy, as documented

by testing, was "a component of [DeRosa's] problems" and stating

"it [was] medically necessary that she avoid any mold in her

living environment." Around the same time, DeRosa informed

Lenox that with the carpet now removed, she could see that when

it rained heavily, water would run under the French door into

the master bedroom. In response, Lenox installed a "sweep" on

the bottom of the door. At that time, following the water

incursion, Lenox did not check for moisture under the flooring
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or otherwise test for mold. A moisture test was not performed

until November 2019.

Despite changes in, and increases to, DeRosa's prescribed

medications, her symptoms remained and her overall condition

worsened. Eventually, having exhausted all possible medical

solutions, Dr. Young recommended that she move from the

townhouse. He suggested that she might have airborne mold in

her townhouse and recommended that she have it tested.

On October 28, 2019, DeRosa submitted to Lenox another

medical letter from Dr. Young, stating that he had exhausted

every possible medication and treatment for the mold allergies

she was experiencing and that the townhouse was not a healthy

environment for her to live in. Dr. Young further stated that

despite the implementation of extensive environmental controls,

DeRosa's severe symptoms had not improved. He asserted that it

was medically necessary, given DeRosa's high level of medication

use, and her failure to respond, for her to change her living

environment. After submitting Dr. Young's letter, DeRosa

expressed her concern to Lenox that water had been pouring into

the bedroom for an undetermined period of time, hidden by the

previous carpet, and that mold had grown under the bedroom floor

or in other areas of the townhouse.

On November 21, 2019, Dave Jenson of Mold Spotters, a mold

inspection and testing company retained by DeRosa, tested the
7

townhouse for any mold or other contaminants. The mold analysis

conducted on the samples from the townhouse by an independent

laboratory established that there were elevated mold conditions

in the townhouse and that it was in need of mold remediation.

On November 25, 2019, DeRosa contacted Lenox, stating that

on doctor's orders, she had vacated the townhouse on November

23, 2019, approximately four months before the lease expired.

Lenox responded the same day, stating that DeRosa had not

provided sufficient notice to break her lease and that she would

incur additional charges due to that fact. DeRosa immediately

rebutted Lenox's insufficient notice charge by pointing out that

in October 2019, she had provided Lenox with Dr. Young's letter

stating that vacation of the townhouse was medically necessary.

In December 2019, Dr. Young provided a letter to Lenox

stating that since DeRosa's move, she had experienced a

resolution of all her asthma and allergy symptoms and that she

had since tapered off all of her asthma and allergy medications.

He verified that he had reviewed the mold analysis and that it

"showed high levels of penicillium and aspergillus mold." He

stated that DeRosa's clinical response to her changed

environment supported the validity of her changing her housing

due to medical necessity.

Discussion. As noted above, the plaintiff brought claims

for negligence, breach of the implied warranty of habitability,
8

breach of the covenant of quiet enjoyment, breach of contract,

and violation of G. L. c. 93A, premised on her contention that

the townhouse contained harmful, airborne mold that negatively

affected her health.2

The motion judge concluded that the presence of harmful

mold and its impact upon the plaintiff were matters "beyond the

common knowledge or understanding of the lay juror,"

Commonwealth v. Bundy, 465 Mass. 538, 546 (2013) (citation

omitted), and therefore that proving them would require expert

testimony. See Commonwealth v. Bankert, 103 Mass. App. Ct. 107,

120 (2023). He concluded that because the plaintiff had failed

to serve expert disclosures in the case, all these claims, being

mold-based, necessarily failed.3

This was not a proper basis for allowing the motion for

summary judgment. Lenox's motion was not one seeking sanctions

for violation of Rule 30B of the Rules of the Superior Court

(2021), which sets out the information that must be disclosed,

including the names and the proposed testimony, with respect to

2 She also brought a security deposit claim alleging a
violation of G. L. c. 186, § 15B. Following DeRosa's acceptance
of Lenox's offer of judgment in full settlement of the claim, a
separate judgment entered on that count, from which there has
been no appeal, and which is not at issue here.

3 The judge subsequently denied DeRosa's motion for
reconsideration of his decision without a hearing.
9

any expert witnesses to be called at trial. The sanction for a

violation of that rule does not include dismissal of an action.

See rule 30B(a).4 Moreover, Lenox was certainly on notice that

Dr. Young was DeRosa's treating physician, a specialist in

asthma and allergies, and that Dr. Young had indicated a

willingness to testify in the case; indeed, it had subpoenaed

DeRosa's medical records from Dr. Young.

The judge reasoned in the alternative that Dr. Young was

not qualified to opine as an expert on the presence of airborne

mold, and that, if he were, his assertions regarding the

presence of mold were based on speculation. To the extent that

Dr. Young relied on the mold testing commissioned by DeRosa, the

judge concluded that DeRosa had neither shown that the method

used by the mold testing company was reliable, nor that the

person conducting the testing was qualified to provide an

opinion on the presence of airborne mold. This, too, was not a

proper basis for allowing the motion for summary judgment.

The letters from Dr. Young, DeRosa's medical records, and

the mold report are part of the record on summary judgment. To

begin with, the letters from Dr. Young indicate that he is an

4 Rule 30B(a) provides: "A party who fails to comply
substantially with the terms of this Rule shall not have the
right to call an expert at trial, but the court in its
discretion may permit that party to do so upon such additional
terms, if any, that the court may require."
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allergy and asthma specialist and a diplomate of the American

Board of Allergy and Immunology. Even assuming expert evidence

is required at all in a case like this, viewing the evidence and

all the reasonable inferences that may be drawn therefrom in the

light most favorable to the plaintiff, it can be inferred that

such a doctor might be qualified to conclude, even without mold

testing, that a patient with a medical history and presentation

like that of DeRosa was living in an environment in which mold

was present. Because Lenox raised no challenge to the doctor's

qualifications, there was no voir dire or ruling with respect to

them. DeRosa's allergy tests showed, among other things, that

she was allergic to aspergillus mold, and she had symptoms that

abated when she was not staying in the townhouse. Whether this

is a reliable method for determining the presence of mold might

be raised as a question under Daubert v. Merrell Dow Pharms.,

Inc., 509 U.S. 579 (1993), and Commonwealth v. Lanigan, 419

Mass. 15 (1994). But, again, this was a motion for summary

judgment; in the absence of a Daubert-Lanigan motion, DeRosa had

no opportunity to defend the admissibility of this evidence

against such a challenge. See Molly A. v. Commissioner of the

Dep't of Mental Retardation, 69 Mass. App. Ct. 267, 284 n.24

(2007). "[A]t the junction where Daubert intersects with

summary judgment practice, Daubert is accessible, but courts

must be cautious -- except when defects are obvious on the face
11

of a proffer -- not to exclude debatable scientific evidence

without according the proponent of the evidence adequate

opportunity to defend its admissibility." Cortés-Irizarry v.

Corporación Insular de Seguros, 111 F.3d 184, 188 (1st Cir.

1997).

Dr. Young's December 2019 letter also repeated the

conclusion of the mold expert regarding the presence of mold in

the townhouse, and the mold analyst's complete report is also in

the summary judgment record. The mold report states that the

inspector conducted a visual inspection, which includes taking

moisture and humidity readings, and collected samples (four air

samples and two surface samples) for laboratory analysis, which

revealed the elevated level of mold spores. In any event,

again, the reliability of this evidence is a Daubert-Lanigan

issue, and no challenge was made on this ground.

"The duty of a trial judge . . . on a motion for summary

judgment is not to conduct a 'trial by affidavits' (or other

supporting materials), but to 'determine whether there is a

substantial issue of fact'" (quotation and citation omitted).

Henshaw v. Cabeceiras, 14 Mass. App. Ct. 225, 229 (1982). The

evidence in the summary judgment record suffices to raise

genuine issues of material fact, sufficient to defeat Lenox's

motion for summary judgment, whether there was mold in the

apartment and whether it caused DeRosa's symptoms. Indeed, the
12

inference that there was mold in the apartment and that it

caused DeRosa's symptoms appears obvious from the evidence, even

without the mold testing report (which, again, was part of the

record on summary judgment).

In light of our conclusion, we need not address DeRosa's

appeal of the denial of her motion for reconsideration. The

summary judgment dismissing counts I, II, III, V, and VI of the

complaint and the order denying DeRosa's motion for

reconsideration are reversed.

So ordered.