Michael Roberti v. Andy's Termite & Pest Control, Inc.

Plaintiff Michael Roberti, a minor, by and through his guardian ad litem,
Mary Roberti, appeals from a judgment of dismissal entered in favor of defendant
Andy's Termite & Pest Control, Inc. Plaintiff alleged that he was injured as a
result of his exposure to a pesticide applied by defendant at plaintiff's home. The
trial court granted defendant's motion in limine to exclude the introduction of
expert testimony to the effect that plaintiff's autism was caused by exposure to the
pesticide, and thereafter entered a judgment of dismissal. Plaintiff contends on
appeal that the expert testimony at issue is not subject to the admissibility test of
People v. Kelly (1976) 17 Cal.3d 24, based upon which the trial court granted
defendant's motion in limine. We agree and reverse the judgment in favor of
defendant, concluding that the trial court applied a threshold admissibility test to
plaintiff's expert testimony, akin to the federal rule of Daubert,1 which is not
applicable under California law.

FACTUAL AND PROCEDURAL BACKGROUND

Variously stated, plaintiff suffers from "chronic static encephalopathy,"
brain damage ("mild central and cortical atrophy, generalized, and asymmetrical
right greater than left"), cognitive impairment ("borderline IQ of 70-75"), and
learning disabilities (developmental language disorder/delay and speech disorder). His brain damage manifests as "autism," sometimes called "autistic spectrum
disorder" or "autism-like disorder."2

Plaintiff's operative second amended complaint for personal injuries and
property damage filed August 1, 2000, alleged causes of action for negligence,
strict liability, breach of implied warranty, breach of express warranty, and
negligent misrepresentation. He alleged defendant applied a chemical called
chlorpyrifos (marketed by Dow Chemical Corporation under the trade name
Dursban, hereafter referred to as Dursban) at the Roberti home both before and
after he was born, as well as while his mother was pregnant with him.

In support of his theory that Dursban caused his autism, plaintiff presented
expert testimony of several toxicologists and medical doctors in which each stated
the opinion to a reasonable degree of medical or scientific certainty that plaintiff's
injuries and damages were caused by his household exposure to the Dursban used
by defendant.3 The experts based their opinions on plaintiff's medical records,
including results of neuropsychological testing, and in utero and postpartum
medical history, as well as on numerous peer-reviewed articles in scientific
journals.

Before trial, defendant filed a motion in limine to exclude expert testimony
regarding causation of plaintiff's autism and/or brain damage as a result of
exposure to Dursban applied by defendant, contending that the expert opinions
offered by plaintiff asserted only the possibility of such causation, and were
unsupported by peer-reviewed scientific and medical literature. Defendant later
filed an amended motion in limine, contending that plaintiff's expert testimony
was based on novel methodologies of scientific proof unsupported by peer-reviewed
scientific literature, i.e., did not meet the admissibility test set forth in
People v. Kelly, supra, 17 Cal.3d 24. 4 Defendant further contended that the animal
studies relied upon by plaintiff's expert toxicologists, Drs. Abou-Donia and
Thrasher, provided merely speculative support for the assertion that Dursban can
cause autism in humans.

Plaintiff filed opposition, contending the Kelly rule does not apply to expert
medical opinion such as that involved here and that the court should otherwise
refrain from evaluating the credibility and weight of the expert testimony, and
defending reliance by Drs. Abou-Donia and Thrasher on peer-reviewed animal
studies to extrapolate exposure and risk levels to humans. Plaintiff asserted that
the United States Environmental Protection Agency's policy prohibits human
experimentation, relies on and adopts animal studies as the scientific basis upon which to set pesticide exposure, dose and risk levels, and relied upon animal
studies to ban residential applications of Dursban effective June 2000. Plaintiff
presented a declaration by Dr. Thrasher in which the latter presented his
calculations of the estimated airborne levels of Dursban to which Mary Roberti
was exposed during the first trimester of her pregnancy, his opinion that such
exposure constituted 100% of the minimum daily dose for a child (based on
abundant scientific literature that Dursban can and does cross the placenta to a
developing fetus, which has a ten-fold increased sensitivity to Dursban), and his
conclusion that this exposure was sufficient to and did cause in utero brain damage
to plaintiff.

Defendant filed reply papers in which it argued that plaintiff's expert
opinions were not supported by adequate foundation (including valid testimony
regarding the dosage of Dursban to which plaintiff was exposed), that none of the
human or animal studies relied upon involved exposures or conditions comparable
to plaintiff's, and that a differential diagnosis to eliminate other causes of
plaintiff's condition had not been done.

After reviewing the moving and opposing papers, the experts' depositions,
declarations, and matter upon which the experts relied, the trial court held a
hearing on the motion in limine. Thereafter the court granted the motion, ruling
that "[t]he plaintiff's experts' analysis and causation opinions are not derived from
any accepted scientific methodology, are not scientifically valid, and do not
possess the evidentiary reliability required by Kelly. [] The conclusions of
plaintiff's experts suggest a causal relation based upon animal studies. The
extrapolation of these animal studies to humans is speculative. The court must
assure itself that opinions are based on relevant scientific methods, processes, and
data and not upon an expert's mere speculation. In vivo and in vitro animal studies
are insufficient to prove causation in human beings in the absence of confirmatory epidemiological evidence." The court further noted that "The consensus in the
medical community is that there is no known cause of autism." Further, "There is
no consensus among the scientific community that pesticides cause autism."

Defendant then brought an oral motion to dismiss the case, which the trial
court granted; judgment was thereafter entered in defendant's favor. The court
later denied plaintiff's motion to strike and/or tax costs, and costs were awarded to
defendant. This consolidated appeal from the judgment and order awarding costs
followed.

DISCUSSION

Plaintiff argues "the trial court misapplied the Kelly test, improperly
assumed the jury's duty to weigh the factual and credibility issues raised by the
admissible proffered medical and scientific opinions of plaintiff's experts and,
apparently, personally disagreed with them."

Defendant contends, on the other hand, that the trial court did not err in
applying Kelly to exclude the experts' theory that plaintiff's autism was caused by
exposure to Dursban. It further contends that the trial court did not err in finding
those theories were not generally accepted in the scientific community (Kelly's
first prong), and did not abuse its discretion in finding the experts' opinions were
not based on proper scientific procedures (Kelly's third prong).

Defendant argues that even if the Kelly test does not apply under these
circumstances, the expert opinions were properly excluded because they were
based on unreliable foundational matters, or upon no foundation at all. It contends
the experts presented no foundation for their testimony on "general causation" that
Dursban is capable of causing plaintiff's autism. It maintains that this is a case of
low level, unmeasured, and unknown "chronic" exposure; that no peer-reviewed scientific literature was presented that demonstrates autism or brain damage can
occur from such minimal exposure; that the scientific studies are unreliable as
foundation because none of the studies involved exposures, dosages, or other
circumstances even remotely comparable to this case; and the subjects of those
studies displayed clinical symptoms after exposure, while Michael and his mother
never displayed toxic symptoms.

I. Applicability of the Kelly Test

In People v. Bolden, supra, 29 Cal.4th 515, 544-545, the Supreme Court
once again explained the Kelly rule as follows: "In People v. Kelly[, supra,] 17
Cal.3d 24 . . . (Kelly), this court held that evidence obtained through a new
scientific technique may be admitted only after its reliability has been established
under a three-pronged test. The first prong requires proof that the technique is
generally accepted as reliable in the relevant scientific community. (Id. at p. 30.)
The second prong requires proof that the witness testifying about the technique and
its application is a properly qualified expert on the subject. (Ibid.) The third prong
requires proof that the person performing the test in the particular case used correct
scientific procedures. (Ibid.)" (People v. Bolden, supra, 29 Cal.4th 515, 544-545.)

Recently in People v. Mitchell (2003) 110 Cal.App.4th 772, Division One of
this district discussed the applicability and rationale behind the Kelly rule. "‘Kelly
is applicable only to "new scientific techniques." [Citations.]' (People v. Leahy
(1994) 8 Cal.4th 587, 605 . . . .) It ‘"only applies to that limited class of expert
testimony which is based, in whole or part, on a technique, process, or theory
which is new to science and, even more so, the law." [Citation.]' (Ibid.) As stated
by the Leahy court in discussing People v. Stoll (1989) 49 Cal.3d 1136 . . . , ‘by
reason of the potential breadth of the term "scientific" in the Kelly/Frye doctrine, the courts often refer "to its narrow ‘common sense' purpose, i.e., to protect the
jury from techniques which . . . convey a ‘"misleading aura of certainty."'
[Citations.]" (49 Cal.3d at pp. 1155-1156 . . . .) According to Stoll, a technique
may be deemed "scientific" for purposes of Kelly/Frye if "the unproven technique
or procedure appears in both name and description to provide some definitive truth
which the expert need only accurately recognize and relay to the jury." (Id. at
p. 1156 . . . , italics added.)' (People v. Leahy, supra, 8 Cal.4th at p. 606.)

"As explained in People v. McDonald (1984) 37 Cal.3d 351 . . . : ‘When a
witness gives his personal opinion on the stand--even if he qualifies as an expert--
the jurors may temper their acceptance of his testimony with a healthy skepticism
born of their knowledge that all human beings are fallible. But the opposite may
be true when the evidence is produced by a machine: like many laypersons, jurors
tend to ascribe an inordinately high degree of certainty to proof derived from an
apparently "scientific" mechanism, instrument, or procedure. Yet the aura of
infallibility that often surrounds such evidence may well conceal the fact that it
remains experimental and tentative. [Citation.] For this reason, courts have
invoked the Kelly-Frye rule primarily in cases involving novel devices or processes
such as lie detectors, "truth serum," Nalline testing, experimental systems of blood
typing, "voiceprints," identification by human bite marks, microscopic analysis of
gunshot residue, and hypnosis [citation], and, most recently, proof of guilt by "rape
trauma syndrome" [citation]. In some instances the evidence passed the Kelly-Frye
test, in others it failed; but in all such cases "the rule serves its salutary
purpose of preventing the jury from being misled by unproven and ultimately
unsound scientific methods." [Citation.]' (People v. McDonald, supra, 37 Cal.3d
at pp. 372-373 . . . , overruled on another ground in People v. Mendoza (2000) 23
Cal.4th 896, 914 . . . .)

"Thus, Kelly analysis is limited to situations where it will ‘forestall the jury's
uncritical acceptance of scientific evidence or technology that is so foreign to
everyday experience as to be unusually difficult for laypersons to evaluate.
[Citation.] In most other instances, the jurors are permitted to rely on their own
common sense and good judgment in evaluating the weight of the evidence
presented to them. [Citations.]' (People v. Venegas (1998) 18 Cal.4th 47, 80
. . . .)" (People v. Mitchell (2003) 110 Cal.App.4th 772, 782-783.)

"This approach is intended to prevent lay jurors from being unduly
influenced by procedures which seem scientific and infallible, but which actually
are not." (People v. Webb (1993) 6 Cal.4th 494, 524. See, e.g., People v. Therrian
(Nov. 20, 2003, C040937) __ Cal.App.4th __ [2003 WL 22725623 at p. *5] ["We
are satisfied that no reasonable juror would mistake [the] expert's use of the
[actuarial test used for sexually violent predators (SVP)] as a source of infallible
truth on the issue of defendant's risk of reoffending."].)

We agree with plaintiff's contention that the trial court erred by applying the
admissibility test of People v. Kelly, supra, 17 Cal.3d 24, 31, to plaintiff's expert
opinion testimony that Dursban caused plaintiff's autism.

Plaintiff's experts based their opinion testimony upon research papers and
studies (primarily those conducted on animals) in peer-reviewed journals regarding
Dursban and its effects, and to some extent upon physical examination of plaintiff
using techniques that are generally accepted in the relevant medical community.
They did not rely upon any new scientific technique, device, or procedure that has
not gained general acceptance in the relevant scientific or medical community.
Rather, it was the theory of causation, that Dursban caused plaintiff's autism, that
has not gained general acceptance in the relevant medical community. The Kelly
test is not applicable even though the proffered evidence presents a new theory of
medical causation.

Defendant's primary contention is that an expert medical opinion advancing
a theory of causation is subject to the reliability/admissibility test of People v.
Kelly, supra, 17 Cal.3d 24, 31, because such an opinion is itself a novel scientific
theory or method that creates a misleading aura of certainty by purporting to relay
to the trier of fact a definitive truth derived from an unproven scientific technique
or procedure. Defendant also asserts that plaintiff's experts' testimony regarding
causation is subject to the Kelly test because it relies on studies that do not
definitively demonstrate that Dursban causes autism or brain damage, and that
involve animals rather than humans which were exposed to different levels of
Dursban and with different modes of ingestion than plaintiff.

We conclude the trial court's application of the Kelly test under these
circumstances is directly contrary to California case law.

Under California law, the predicate for application of the Kelly rule is that
the expert testimony is based, at least in some part, on a new scientific technique,
device, procedure, or method that is not generally accepted in the relevant
scientific community. The predicate is not that the opinion or underlying theory
asserted by the expert is itself not generally accepted in the relevant scientific
community or is faulty. "Absent some special feature which effectively blindsides
the jury, expert opinion testimony is not subject to Kelly-Frye." (People v. Stoll
(1989) 49 Cal.3d 1136, 1155-1157 [expert psychiatric opinion testimony that a
defendant prosecuted for sexual offenses against minors does not display signs of
sexual deviance or abnormality is not subject to the Kelly test because the opinion
was based on the accepted interview techniques and interpretation of the results of
generally accepted, standardized written personality tests, and did not carry a
"misleading aura of scientific infallibility"]. Accord: People v. Rowland (1992) 4
Cal.4th 238, 266 [Kelly test is not applicable to expert medical opinion testimony
that "the absence of genital trauma is not inconsistent with nonconsensual sexual intercourse"; i.e., rape does not always cause genital trauma]; People v. McDonald
(1984) 37 Cal.3d 351, 372-373 [expert opinion testimony on accuracy of
eyewitness testimony is not subject to the Kelly test because it was not based on
unproven "scientific mechanism, instrument or procedure"]; People v. Therrian,
supra, __ Cal.App.4th __ [2003 WL 22725623 at p. *5] [actuarial test used as one
tool in predicting whether SVP would reoffend not subject to Kelly test;
psychological evaluation is a learned professional art rather than the purported
exact science with which Kelly is concerned]; People v. Bui (2001) 86 Cal.App.4th
1187, 1195-1196 [expert scientific opinion testimony that ingestion of quantities of
methamphetamines exceeding therapeutic dosage causes impaired driving ability is
not subject to the Kelly test because it is not based on any "novel process or new
scientific technique or device," but, rather, on accepted epidemiological studies
correlating methamphetamine blood levels with driving impairment]; Wilson v.
Phillips (1999) 73 Cal.App.4th 250, 253-257 [expert medical opinion testimony
that a person had repressed real memories of childhood sexual molestation and recalled them accurately during adulthood is not subject to the Kelly test because it
was derived from established medical interview techniques and the physician's
personal evaluation of the victim]; People v. Ward (1999) 71 Cal.App.4th 368, 373
[testimony of a psychologist assessing whether a convicted sex offender is a
sexually violent predator and likely to re-offend is not subject to the Kelly test
because the opinion was based on conventional interview techniques].)

People v. Ward, supra, 71 Cal.App.4th at page 373, concisely summarizes
the point: "California distinguishes between expert medical opinion and scientific
evidence; the former is not subject to the special admissibility rule of Kelly-Frye.
(People v. McDonald (1984) 37 Cal.3d 351, 372-373.) Kelly-Frye applies to cases
involving novel devices or processes, not to expert medical testimony, such as a psychiatrist's prediction of future dangerousness or a diagnosis of mental illness.
[Citation.]"

The extent to which expert medical opinion testimony is exempted from the
Kelly rule is illustrated by our Supreme Court's comment in People v. McDonald,
supra, 37 Cal.3d 351 at pages 373-373: "We have never applied the Kelly-Frye
rule to expert medical testimony, even when the witness is a psychiatrist and the
subject matter is as esoteric as the reconstitution of a past state of mind or the
prediction of future dangerousness, or even the diagnosis of an unusual form of
mental illness not listed in the diagnostic manual of the American Psychiatric
Association. [Citation.]"

Wilson, supra, and Bui, supra, specifically hold that medical theories of
causation are not subject to the Kelly rule when they are based entirely upon
generally accepted diagnostic methods and tests, including statistical studies that
are not definitive. Bui, at page 1196, reiterates the established principle that
disagreement by an opposing party's expert with the conclusions a medical expert
witness draws from accepted methods of scientific research "does not make [the
challenged expert's] methodology a new scientific technique." Bui and other cases
point out that opposing parties are free to present contrary expert testimony to
refute a medical opinion because juries do not view the subjective thought
processes of an expert as having the "aura of infallibility" they tend to attribute to
scientific devices, techniques, or procedures. (Bui, supra, at pp. 1195-1196.)

Under these principles, the medical opinion drawn by plaintiff's experts
concerning causation of autism clearly does not meet the predicate for application
of the Kelly rule. Nor did the defendant demonstrate that the methodology used in
the studies relied upon by plaintiff's experts, including the use of animal studies to
extrapolate to effects of a substance on humans, is in any way novel or unaccepted
in the scientific community, requiring application of the Kelly test. Defendant's objections are actually to the conclusions plaintiff's experts reached based on the
studies available, not with the methodology used in the studies, upon which the
experts relied in reaching their conclusions. Defendant's argument in this regard,
and the trial court's ruling, instead pertains to the weight of the underlying bases
for the expert opinion, not its admissibility. The court here rejected as speculative
the expert opinions to the extent they relied on animal studies. As we discuss in
the next section, in so doing the court was in effect applying an admissibility test
which is contrary to California law. Thus, the trial court erred in granting
defendant's motion in limine to exclude plaintiff's expert testimony and thereafter
granting a judgment of dismissal.

II. A Daubert Analysis Is Not Applicable in California

Defendant argues that, even if we conclude the Kelly test is not applicable to
the expert medical testimony here, the trial court was still correct in excluding it
based on its purported lack of an adequate foundation. Defendant contends that we
should apply the foundational analysis employed in the federal courts to all expert
testimony, an analysis the California Supreme Court has explicitly rejected.

The federal rule established in Daubert v. Merrell Dow Pharmaceuticals,
Inc., supra, 509 U.S. 579 (Daubert) subjects all expert scientific and technical
opinion testimony to a threshold reliability test (under rule 702 of the Federal
Rules of Evidence, which superseded the Frye test in federal courts as of 1993).
Daubert, however, does not alter California law with regard to admissibility of
expert medical opinion testimony.

Defendant's arguments on appeal closely parallel the reasoning and analysis
in National Bank of Commerce v. Dow Chemical Co. (E.D. Ark. 1996) 965
F.Supp. 1490, in which a child alleged that in utero exposure to Dursban caused her to suffer from birth defects. That case followed federal law requiring
application of the broad threshold reliability test to all scientific and technical
expert opinion testimony. Under Daubert and the Federal Rules of Evidence it
interprets, a district court must first determine whether the reasoning or
methodology underlying the testimony is scientifically valid; unlike the Kelly test,
however, general acceptance in the scientific community of the underlying
methodology is not necessarily required. In addition, the district court must also
conduct preliminary fact-finding, to make a preliminary assessment of whether the
reasoning or methodology underlying the testimony properly can be applied to the
facts in issue. (National Bank of Commerce v. Dow Chemical Co., supra, 965
F.Supp. at pp. 1495-1496, citing Daubert, supra, at pp. 592-595.)

The district court in National Bank of Commerce applied that test and ruled
that plaintiff failed to establish that her exposure to Dursban caused birth defects,
where the expert testimony was based on what the court deemed to be studies
involving inappropriate protocol and methodology and inadequate exposure and
dosage levels, and on animal studies whose applicability to humans was
speculative.

A contrary view was expressed in Castillo v. E.I. DuPont de Nemours &
Co., Inc., supra, 854 So.2d 1264, 1273. There, the Supreme Court of Florida, a
Frye state, in an action for personal injury due to in utero fungicide exposure, held
admissible expert testimony based on animal studies, where the expert "relied upon
the basic principle of toxicology and pharmacology that in qualitative
extrapolation, one can usually rely on the fact that a compound causing an effect in
one mammalian species will cause it in another species."

What defendant would have us do, under the guise of determining whether
the challenged testimony was supported by the proper foundation, is conduct a
Daubert-style analysis, precisely as the court did in National Bank of Commerce, supra. Use of the Daubert threshold reliability test is not, however, in keeping
with the law in California. In People v. Leahy (1994) 8 Cal.4th 587, our Supreme
Court refused to adopt the federal reliability test derived from Federal Rules of
Evidence rule 702 established in Daubert. Citing People v. Stoll, supra, the Leahy
court noted that "Kelly is applicable only to new scientific techniques." (Leahy,
supra, at p. 605.) The Supreme Court did not suggest that the federal courts'
application of the Daubert federal reliability test to all expert opinion testimony
broadens the applicability of the Kelly test under California law to anything other
than new scientific techniques. In addition, there is no authority or rationale to
support the notion impliedly promoted by defendant that on the one hand, the Kelly
rule retains viability as to new scientific methodology, techniques, or devices, but
on the other hand California courts may apply a Daubert threshold reliability
analysis to everything else, including expert medical testimony and all other
scientific and technical testimony that has already gained general acceptance.

We note the existence of People v. Mitchell (2003) 110 Cal.App.4th 772, in
which the appellate court held the Kelly test applicable to the use of a scent transfer
device for a canine scent identification lineup. In dicta, the court stated as follows:
"[R]egardless of whether evidence is deemed ‘scientific,' it will not be admitted
unless it is relevant. In Daubert v. Merrell Dow Pharmaceuticals, Inc., supra, 509
U.S. at page 597 . . . , the United States Supreme Court determined that the Frye
standard had been superseded by the Federal Rules of Evidence because
‘"[g]eneral acceptance" is not a necessary precondition to the admissibility of
scientific evidence' under the Federal Rules, which ‘assign to the trial judge the
task of ensuring that an expert's testimony both rests on a reliable foundation and
is relevant to the task at hand. Pertinent evidence based on scientifically valid
principles will satisfy those demands.' In People v. Leahy, supra, 8 Cal.4th 587
. . . , the California Supreme Court concluded that Daubert did not provide cause for this state to abandon Kelly. Nonetheless, the Leahy court recognized that
provisions of our Evidence Code ‘seem the functional equivalent' of the Federal
Rules of Evidence relied on in Daubert. (People v. Leahy, supra, 8 Cal.4th at
p. 598 . . . .)

"In California evidence is relevant only if it has ‘any tendency in reason to
prove or disprove any disputed fact' (Evid. Code, § 210). And an expert's
testimony must be based on matter ‘that is of a type that reasonably may be relied
upon by an expert' (id., § 801, subd. (b)). (See People v. Leahy, supra, 8 Cal.4th at
pp. 597-598 . . . .)"5 (People v. Mitchell, supra, 110 Cal.App.4th 772, 783-784.)

The testimony offered by plaintiff's experts in this case both had the
tendency in reason to prove causation, and was based on studies and protocol of a
type that reasonably may be relied upon by a medical expert witness. Unless and
until our Supreme Court determines that the Daubert analysis is applicable in
California, we will adhere to the rule of People v. Kelly and its progeny, and refuse
to apply a more extensive preliminary admissibility test as in Daubert to expert
medical opinion concerning causation. In contrast to the Mitchell court's
interpretation of Leahy, our reading of Leahy instead indicates that the Supreme
Court has rejected the broader federal rule and reaffirmed its adherence to the
narrower Kelly rule. (People v. Leahy, supra, at pp. 604-605.)

In effect the trial court denied plaintiff the right to present evidence to a jury
in support of his case, without complying with the procedural rules governing
dismissal of a cause of action for insufficiency of the evidence by way of a motion
for summary judgment before trial or nonsuit or directed verdict during trial. We therefore reverse the judgment in defendant's favor. In addition, of course, we also
reverse the award of costs in defendant's favor.

* * *

Click the case caption above for the full text of the Court's opinion.