The California Court of Appeal, Second Appellate District, Division Six has made a decision which may have significant impact on mold litigation nationwide
The mere presence of mold spores at a property is not a sufficient basis for expert testimony on the medical effects of exposure to mold. Pervasive errors in the chain of custody of mold samples render scientific testimony based upon such samples inherently unreliable.
The California Court of Appeal, Second Appellate District, Division Six has certified for publication an important decision which may have significant impact on the conduct of mold litigation nationwide. In Geffcken v. D'Andrea, et al., (2d Civil No. B176232), a case in which Lane E. Webb (Partner-San Diego) was lead trial counsel and co-appellate counsel, the Court held that the mere presence of mold spores at a property is not a sufficient basis for expert testimony on the medical effects of exposure to mold. Instead, plaintiffs are required to first establish the presence of mycotoxins. In addition, the Court held that pervasive errors in the chain of custody of mold samples render scientific testimony based upon such samples inherently unreliable.
In Geffcken, Eva Geffcken (Eva) and her son, Alexander Geffcken (Alexander), claimed that they were exposed to mold mycotoxins at their residence. Eva also claimed that she was exposed to mold mycotoxins at her place of work, Casa Dorinda, where she worked as a caregiver for one of the residents. Respondents allegedly were responsible for the management, maintenance, or construction of the properties. A global demand of $6 million was made to settle the case.
Eva and Alexander maintained that the exposure caused them to suffer from various ailments which, in the case of Eva, included lung cancer; neurological problems; respiratory problems; immune deficiency; fibromyalgia; infections on her tongue, toenails, and skin; chronic fatigue; weakness; memory loss and headaches and in the case of Alexander, included chronic fatigue, immune dysfunction, neurological problems, respiratory problems, reactive airway disease, elevated liver enzymes and chemical hepatitis of the liver. Eva and Alexander's expert witness on the medical effects of exposure to mold was Dr. Gary Ordog. Patrick Moffett was the Geffcken's mold sampling expert but significantly, he did not test for the presence of mycotoxins.
The trial court conducted a hearing under Evidence Code section 402 which lasted two weeks in Department 6 of the Santa Barbara Superior Court, the Honorable Denise deBellefeuille, presiding, on the joint motions in limine filed by Respondents. Those motions, which Mr. Webb took the lead in arguing on behalf of Respondents, were the following: (1) to exclude the testimony of Dr. Gary Ordog; (2) to exclude the environmental sampling data of Patrick Moffett; (3) to exclude the results of two medical tests: a mycotoxin antibody test and a blood serology test, and (4) to preclude Appellants from alleging exposure to mycotoxins at the properties in question. In addition to Dr. Ordog and Mr. Moffett, the court heard testimony from a Dr. Aristo Vojani as a proponent of one of the blood serology tests as well as from Respondents' experts, Daniel Baxter (mold sampling), Dr. Daniel Sudakin (medical toxicology), and Dr. Adrian Casillas (internal medicine, allergy and immunology). Following the hearing, the trial court granted Respondents' motions in limine and entered judgment in favor of Respondents. The Court of Appeal affirmed the judgment of the trial court. Mr. Webb and Alan E. Greenberg (Associate-San Diego) handled the appeal on behalf of Respondent Montecito Retirement Association dba Casa Dorinda.
The Geffcken Court first addressed the trial court's exclusion of Patrick Moffett's environmental sampling data. The Court noted that Mr. Moffett's data had little, if any, probative value because of the "pervasive chain of custody errors and deficiencies" noted by Daniel Baxter which invalidated the integrity of the sampling results. Moreover, the Court held that, in any event, the probative value of Moffett's data was minimal and properly excluded under California Evidence Code section 352 because, at most, it showed that mold spores, not mycotoxins, were present at Appellants' residence and at Casa Dorinda.
The Geffcken Court noted that the issue was not whether mold spores had been present at Appellants' residence and at Casa Dorinda. The issue was whether Appellants had been exposed to mycotoxins at these properties, and whether the mycotoxins had caused the various ailments from which they allegedly suffered. The Court agreed with authoritative publications from the Environmental Protection Agency and the American College of Occupational and Departmental Medicine that the presence of mold in a building does not necessarily mean that mycotoxins are present. The Court also agreed with the testimony provided by Dr. Sudakin that no valid conclusion about mycotoxins as the cause of health effects can be derived from limited environmental testing data and that an attempt must be made to quantify exposure [to mycotoxins] and dose.
The Geffcken Court next addressed the issue of the trial court's exclusion of the Immunosciences Mycotoxin Antibody Test (Immunosciences Test) and the IBT Blood Serology Test (IBT Test). The Immunosciences Test purports to show the presence of antibodies produced by the presence of mycotoxins. The IBT test purports to show the presence of antibodies produced by the actual mold, rather than to mycotoxins. The blood serology test results were positive for both Appellants. The Court concluded, primarily based upon the testimony of Dr. Sudakin and Dr. Casillas, as well as a publication from the California Department of Health Services, that neither the Immunosciences Test nor the IBT Test had gained general acceptance in the relevant scientific community and therefore did not satisfy the Kelly-Frye test which is used in California. Unfortunately, in a footnote added by the Court at the time it certified the opinion for publication, the Court stated that under a different set of facts its holdings would not preclude a trial court from ruling that the required Kelly-Frye foundation had been met for the admission of the Immunosciences Test and the IBT Test. Nonetheless, the Geffcken opinion provides some support for the exclusion of the Immunosciences Test and IBT Test in other cases in the absence of any additional evidence than was presented at the 402 hearing or evidence that the tests have gained general acceptance in the relevant scientific community since the date of the opinion.
Since Mr. Moffett's environmental sampling data and the two blood serology tests were properly excluded from evidence by the trial court and, in the absence of any testing for mycotoxins at the properties in question, the Court held that the trial court was correct in precluding Appellants from alleging exposure to mycotoxins at the properties.
Finally, with respect to Dr. Ordog, the Court did not need to address the significant evidence presented at the 402 hearing concerning the questionable nature of Dr. Ordog's credentials or whether he properly qualified as an expert on the subject of adverse health effects caused by exposure to mycotoxins. Instead, the Court held that the trial court did not abuse its discretion under California Evidence Code section 801(b) in impliedly finding that there was no reasonable basis for his opinion that the exposure to mycotoxins had caused the Appellants' ailments. In view of the absence of any reliable evidence that the Appellants had been exposed to mycotoxins at the properties in question, Dr. Ordog's opinions were "speculative and conjectural."