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Litigation

: CalBizLit

Court of Appeals Affirms Exclusion of Junk Science In Mold Case

By Bruce Nye

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CalBizLit has lamented on many occasions the facts that (a) California is not a Daubert jurisdiction, and (b) even our version of the Frye test (known in these parts as the Kelly test) has limited application, being available only to exclude new tests.

But once in a great while, we see a trial court exclude junk science from the courtroom anyway, and we see a Court of Appeal affirm the trial court for acting as as a gatekeeper. Today, it's Los Angeles Superior Court Judge Warren Ettinger and Division Four of the Second Appellate District who give CalBizLit that warm and fuzzy feeling he gets when pseudoscientific nonsense gets excluded.

Our case today is Dee v. PCS Property Management, Inc. (2009) ___Cal.App.4th___ (B18600). It's a mold case. And as a special bonus, it's the second reported decision where the courts gave thumbs down to Dr. Gary J. Ordog, expert witness in mold exposure cases.

More after the jump.

In Dee, Dr. Ordog was prepared to base his testimony on a SPECT scan that everybody on both sides agreed was inadmissible, something called an ELISA test that's done in only one laboratory in the world, a bibliography, some articles, some lab work and Proposition 65. He was then going to testify that:

as a result of mold exposure, Dee suffered an increased risk of developing all kinds of cancer and was at an even greater risk of developing lung cancer and cervical cancer. Ordog opined that mold exposure caused Dee mental deficiencies, including dementia, memory loss, migraine headaches, and toxic leukoencephalopathy (a poisoning of the white matter of the brain). Ordog intended to testify that, as a result of Dee's exposure to mold, she suffered abdominal pain and gastrointestinal bleeding, irritable bowel syndrome, fibromyalgia (chronic joint and musculoskeletal pain), and chronic fatigue immune deficiency syndrome. Ordog further concluded that Dee suffered from dyspnea characterized by difficulty breathing and reactive airway disease as a result of mold exposure. In addition, he explained, as a result of her mold exposure, Dee suffered from multiple chemical sensitivities and an infection in her nails, and skin rashes. He concluded that her high ELISA test for mycotoxins indicated that if she conceived a child, the child was at risk for birth defects.

The trial court said "thank you for playing, but better luck next time," excluding most of Dr. Ordog's proposed testimony. And as it had did in Geffcken v. D'Andrea (2006) 137 Cal.App.4th 1298, 1311-1312, the Court of Appeal affirmed. The testimony was excluded not on the basis of People v. Kelly (1976) 17 Cal.3d 24 (the source of California's Kelly rule) but rather on Evidence Code section 801, permitting a trial court to exclude opinion evidence when there is no basis for the opinion.

One of my favorite parts of this opinion is footnote 8, describing argument on the evidentiary issues during trial:

In the trial court, Dee acknowledged that section 801 requires the trial court to determine if there is a foundation for the expert's testimony. Counsel agreed the following scenario would not satisfy section 801: A doctor is asked, '''What's the authority for using this machine'" and replies, '''I just use it. I don't have any authority. I use it; and I pick up its readings, and they assist me' ... 'they confirm what I conclude.'" The doctor further indicates, '''I like the color of the machine. It's really cool. It's attractive and it looks really professional, and that's all I have.'"

One of my other favorite parts, in a schadenfreude kind of way, is the unpublished part of the decision, where the court upholds a cost award against the plaintiff of $331,000 for failing to accept an offer of judgment under California's Code of Civil Procedure section 998.

Full post as published by CalBizLit on June 01, 2009 (boomark / email).