NEW COURT OF APPEAL DECISION AFFIRMING EXCLUSION OF EXPERT TESTIMONY

On March 28, 2006, the Court of Appeal granted the defendants' request to publish its opinion in Geffcken v. D'Andrea, Case No. B176232, outlining the criteria for excluding expert testimony in California.

Eva and Alexander Geffcken, mother and son, claimed injuries from alleged exposure to mold in the condominium they rented. They sued the homeowners' association and the management company for their condominium complex. Plaintiffs had only one expert witness (Dr. Gary Ordog) who was willing to testify that the Geffckens' exposure in their home to mold byproducts known as mycotoxins caused the Geffckens' lung cancer as well as liver, brain, endocrinological, and immunological problems.

The trial court ruled that the expert's opinion was unsupported by competent evidence. The court found not only that there was no evidence mycotoxins could cause the serious illnesses suffered by the Geffckens, but that there was not even evidence the Geffckens had been exposed to mycotoxins in their home. The court therefore excluded the expert's testimony and then entered judgment for the defendants because plaintiffs could not prove causation.

The Court of Appeal affirmed. The Court reasoned that (1) the mold sampling data on which Dr. Ordog relied was properly excluded under Evidence Code section 352, (2) the blood tests on which Dr. Ordog relied were properly excluded under Kelly-Frye because the plaintiffs failed to show the blood tests were generally accepted in the relevant scientific community, and (3) Dr. Ordog's opinions were properly excluded under Evidence Code section 801 because "in view of the absence of any reliable evidence that [plaintiffs] had been exposed to mycotoxins at the properties in question, Dr. Ordog's opinions were speculative and conjectural."

To view the Court of Appeal's opinion, click here. This case was handled by Horvitz & Levy partners David Ettinger and M.C. Sungaila. For more information, please contact David or M.C. at (818) 995-0800 or by email at dettinger@horvitzlevy.com and msungaila@horvitzlevy.com.

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