In Geffcken v. D'Andrea (February 27, 2006) 137 Cal.App.4th, 1298, a personal injury mold case the Court of Appeals upheld the trial judge's ruling that plaintiff's mold expert's reliance on unreliable air sampling test results precluded admission of the testing and the expert's testimony. 

The case is instructional as to possible defenses to mold related personal injury claims, including questioning testing protocol, and incorporating Kelly-Frye analysis as to new scientific methodology.

OVERVIEW: Plaintiffs, Eva and Alexander Geffcken, believed that they were exposed to mold mycotoxins at their rented apartment.  Eva believed she was also exposed to mold mycotoxins at a second apartment where she worked as a caregiver.  Eva and Alexander suffered from numerous ailments, some life-threatening, which they believed to have been caused by this exposure.

Plaintiffs sued the owners of the subject properties for nuisance, constructive eviction, breach of warranty of habitability and negligence.  The Santa Barbara County Superior Court granted defense motions in limine to exclude expert testimony and air sample testing results, and thereafter granted judgment in favor of the property owners.  The Second Appellate District affirmed the judgment, holding that where test results relied on by an expert witness were shown to be either unreliable or not generally accepted in the scientific community, the trial court did not err in excluding the Plaintiff's expert testimony.

FACTS: The Geffckens proposed to introduce at trial the testimony of Gary Ordog M.D. (Medical Toxicologist), who would testify that Geffckens' ailments were caused by exposure to mold mycotoxins.  Ordog relied on the Geffckens' medical histories, as well air sampling reports prepared by Patrick Moffett and the results of two medical tests, one performed by Immunosciences Lab, Inc., and one performed by IBT References Lab.

The Moffett report showed that mold spores had been found at the properties, although no testing was done for the presence of mycotoxins.  The Immunosciences test purportedly showed the presence of mycotoxins.  The IBT blood serology test purportedly showed the presence of antibodies produced by exposure to the "actual mold, the actual living organism," rather than mycotoxins.

The property owners moved in limine to exclude all of this evidence.  They offered the testimony of Daniel Baxter, an environmental scientist, who owned the laboratory that analyzed the Moffett samples.  According to Baxter, Moffett had "failed to perform an adequate forensic investigation."

In addition, Baxter opined that Moffett's " pervasive chain of custody errors and deficiencies invalidate the integrity of sampling results."  Numbering on the samples had been inaccurately transposed.  Even if the sampling results were reliable, Baxter opined that nothing in Moffett's reports "could remotely associate mycotoxins" with the properties in question.  Tests which could have identified the presence of mycotoxins were not performed.

The property owners also presented the testimony of two scientists who opined that the Immunosciences and IBT test had no value as they were not generally accepted in the scientific community.

Dr. Aristo Vojdani, the inventor of the Immunosciences test and the owner of the laboratory that performed the test, acknowledged in his deposition testimony that the mycotoxins antibody test was "new technology" and that he and his colleagues were the only persons to "have studied the viability of this test."

Kelly-Frye Test Refresher

The proponent of evidence derived from a new scientific methodology must satisfy three prongs, by showing: (i) that the reliability of the new technique has gained general acceptance in the relevant scientific community; (ii) that the expert testifying to that effect is qualified to do so; and (iii) that correct scientific procedures were used in the particular case. People v. Kelly (1976) 17 Cal.3d 24.

Holding: The trial court granted motions in limine to exclude plaintiff's expert's testimony and the Moffett, IBT and Immunosciences test results.  The court thereafter granted judgment in favor of the property owners.

The court of appeal affirmed, holding that the trial court did not err in granting the motions in limine.

The trial court reasonably concluded that Moffett's data had little, if any, probative value.  The trial court credited Baxter's testimony questions the integrity of the sampling results.  It found that Moffett's "work was sloppy to an alarming degree as evidenced by the transmutation of numbering on the samples."  Further, even if accepted, the samples showed at most that mold spores, not mycotoxins, were present at the properties.

Further, the trial court did not abuse its discretion in excluding the Immunosciences and IBT test results.  The property owners' evidence clearly showed that these tests were not yet generally accepted in the scientific community.

Finally, the trial court did not abuse its discretion in excluding Dr. Ordog's testimony.  The trial court impliedly found that there was no reasonable basis for Ordog's opinion that the exposure to mycotoxins had caused the Geffckens' ailments.  In view of the absence of any reliable evidence that the Geffckens' were exposed to mycotoxins at the properties in question, Dr. Ordog's opinions were speculative and conjectural.

COMMENT: While "chain of custody" issues existed essentially rendering the decision limited to its facts, this case is helpful in demonstrating the difficulty plaintiffs and their experts are having in establishing a casual nexus between air sampling (generally identifying species, rather than mycotoxins) and physical symptoms/disease in personal injury mold cases.

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