Yes, at least past summary judgment. The Appeals Court held that a judge could not throw out a tenant’s mold claims just because she had not served expert witness disclosures, and that her doctor’s letters, her medical records and a mold test report were enough to raise real disputes for trial. This is a published decision of the Appeals Court and is binding statewide.
What happened
The tenant rented a townhouse from the landlord starting in November 2018. Before signing, she told the landlord she had allergies to dust and mold, and she was told the carpet was hypoallergenic. It was not marketed that way. Within days of moving in she had symptoms, which cleared up while she was traveling and came back when she returned. Her doctor, an allergy specialist, sent the landlord reasonable accommodation requests, and the landlord replaced the carpet in April 2019. With the carpet gone, she saw rainwater running under a bedroom door. The landlord added a door sweep but did not test for moisture until November 2019. A mold inspector she hired found elevated mold levels that needed remediation, and she moved out on her doctor’s advice about four months before the lease ended. She sued in Superior Court for negligence, breach of the implied warranty of habitability, breach of the covenant of quiet enjoyment, breach of contract, and violation of G.L. c. 93A.
What the court decided
In DeRosa v. Lenox Farms Limited Partnership, 104 Mass. App. Ct. 510 (2024), the court reversed summary judgment on all five claims and reversed the order denying reconsideration.
Missing expert disclosures are not a reason to dismiss. The trial judge ruled that mold and its effects on a person are beyond what jurors know from everyday life, so the tenant needed expert testimony. Because she had served no expert disclosures, he ruled that every mold claim failed. The Appeals Court disagreed. Superior Court Rule 30B sets out what a party must disclose about any expert it plans to call at trial. The landlord’s motion did not ask for sanctions under that rule, and the rule’s sanction does not include dismissing the case. A party that does not comply may lose the right to call the expert at trial, though the judge has discretion to allow it on conditions. The court also noted that the landlord knew who the doctor was, knew he was willing to testify, and had subpoenaed his records.
Reliability challenges need a proper motion. The judge also ruled, in the alternative, that the doctor was not qualified to say mold was in the air and that the mold testing was not shown to be reliable. That was not a proper basis either. The landlord never challenged the doctor’s qualifications, so there was no hearing on them. Whether the doctor’s reasoning and the testing methods are reliable is a question for a judge’s screening of expert evidence under Commonwealth v. Lanigan, 419 Mass. 15 (1994), and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). No one filed that kind of motion, so the tenant never had a chance to defend her evidence. The court warned that judges deciding summary judgment should be cautious about excluding debatable scientific evidence without that chance, unless the defects are obvious.
The record showed real factual disputes. The doctor’s letters, the medical records and the mold report raised genuine disputes about whether there was mold in the unit and whether it caused her symptoms. The court said that inference appeared obvious from the evidence, even without the mold report. The court did not decide whether expert evidence is required at all in a case like this one.
What this means for you
If mold in your apartment is making you sick, a landlord cannot win your case on summary judgment just by pointing out that you missed an expert disclosure deadline. The proper consequence of that kind of mistake is usually limited to whether you can call the expert at trial, not the end of your case.
Your treating doctor’s records and letters can be strong evidence. So can a written report from a professional mold inspector.
Do not treat this as permission to ignore court rules. A party who skips required expert disclosures may still be barred from using that expert at trial. And the landlord can still file a motion challenging whether your evidence is reliable. You need to be ready to defend it.
What to do now
- Report leaks, water damage and mold to your landlord in writing, and keep copies.
- Tell your doctor about the conditions at home, and keep copies of medical records and any letters your doctor writes.
- Consider professional mold testing that produces a written report with lab results.
- Ask your local Board of Health to inspect, and keep the inspection report.
- If you are in a lawsuit, meet every disclosure deadline, including for your doctor or any other expert.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. Housing Court deadlines are short.
