Physician permitted to testify mold caused personal injury
Blog 702 points us to Searles v. Fleetwood Homes,Inc., a Maine Supreme Court decision affirming a physician's testimony that mold caused the plaintiffs' respiratory problems. The court also affirmed the trial court's refusal to give the jury a comparative negligence instruction.
The Mold Opinion:
The mold problem was created when the defendant homebuilder failed to timely replace defective windows it had installed in the plaintiffs' home. Moisture intruded through the defective windows and triggered the mold growth.
The court affirmed the trial court's decision to permit the plaintiffs' physician expert to opine the plaintiffs' respiratory problems were caused by an irritant reaction to volatile organic compounds emitted by the mold in their home. Admissibility of the expert's opinion, the court reasoned, turned on whether there was a sufficient showing of scientific reliability for the expert's opinion not on whether her views had secured general acceptance in the scientific community:
Indicia of scientific reliability may include the following: whether any studies tendered in support of the testimony are based on facts similar to those at issue; whether the hypothesis of the testimony has been subject to peer review; whether an expert’s conclusion has been tailored to the facts of the case; whether any other experts attest to the reliability of the testimony; the nature of the expert’s qualifications; and, if a causal relationship is asserted, whether there is a scientific basis for determining that such a relationship exists. (citations omitted)
The court reviewed the six studies relied upon by the expert and concluded they were sufficient to establish a scientific foundation for the expert's causation opinion.
The court also emphasized that the expert had examined the plaintiffs herself, correlated their symptoms to their mold exposure through a differential diagnosis and that the expert had extensive experience in diagnosing environmental health problems and performing toxicology work associated with indoor air quality.
The court rejected the defendant's argument that Maine follow the expert standards adopted by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc.. The court declined, but observed that the result under Daubert would have been the same.
Rejection of Comparative Negligence Instruction:
The court also affirmed the trial court's rejection of a comparative negligence instruction based on the plaintiffs' failure to timely vacate their home, stop home-schooling their children earlier and buy an air filtration system. The court characterized these contentions as going to the issue of mitigation of damages not comparative negligence.
To support a comparative negligence instruction, the acts complained of must be a proximate cause of the injury not an act that would have reduced the damages flowing from injury:
A plaintiff’s duty to mitigate damages arises after he or she has suffered an injury or loss, and focuses on whether the plaintiff took reasonable steps to avoid or reduce damages that were proximately caused by the negligence of the defendant. Comparative negligence, in contrast, focuses on whether the plaintiff’s negligence was a proximate cause of the underlying harm that gave rise to the plaintiff’s damages. For a comparative negligence instruction to have been warranted, the [plaintiffs']negligence must have been a legal cause of their damages. (citations omitted)
The Teaching: Pick your expert wisely and don't overreach. Here the expert had unimpeachable credentials, based her opinions on the special circumstances of the case and limited her opinions to a diagnosis with substantial if not conclusive support in the medical literature.