Sutton v. Hermitage Mobile Home Sales

Filed 5/15/06  Sutton v. Hermitage Mobile Home Sales CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

            Appellant Deborah Sutton appeals a consent judgment following the trial court's exclusion of expert opinion evidence, pursuant to defense motions in limine.

We conclude that the trial court did not abuse its discretion in excluding the challenged evidence and affirm.

FACTS

                        Appellant purchased a mobile home from Bonita Thanuum through Hermitage Mobile Home Sales, and its agent, John McCarter (respondents).  Appellant lived in the mobile home for six weeks, but moved out after discovering toxic mold in the home.  She filed an action for damages against respondents for personal injury, negligence, misrepresentation, fraud and breach of contract.  The only issue subject to our review is appellant's allegation that she suffered physical injuries resulting from the presence of the mold.

David M. Alessi, M.D.

                        Prior to trial, respondents filed a motion in limine (number 5) requesting the trial court to exclude the opinion testimony of David M. Alessi, M.D, on the issue of causation.  They argued that his opinion that appellant's ailments were caused by exposure to mold or mold toxins was based only on appellant's self-report, and was therefore unreliable.

                        Dr. Alessi testified at his deposition that he performed a biopsy of appellant's nasal mucosa, which showed squamous metaplasia (adverse changes in tissue).  He stated that the only explanation for this condition is exposure to environmental toxins or molds.  Dr. Alessi based his conclusions on appellant's statements that her symptoms began when she lived in the mobile home; she " was told she had toxic molds" ; and " mold was found in her saliva."

                        Dr. Alessi also diagnosed appellant as suffering from chronic rhinitis (inflammation of the nasal cavity).  He testified that this condition was consistent with mold exposure, based on appellant's oral history, the nasal biopsy report and a physical examination.  He could say with " 80 to 90 percent confidence" that her rhinitis was caused by mold exposure.  Dr. Alessi acknowledged that not all molds are toxic.  He testified that, to determine whether appellant had a significant exposure to mold, he would need to review her immunological and blood serology testing and the results of mold testing from her residence.

Gunnar Heuser, M.D.

                        Respondents filed another motion in limine (number 6) seeking to exclude the testimony of Gunnar Heuser, M.D., on the grounds that the tests he administered are not generally accepted in the scientific community and that his opinion lacked a sufficient scientific basis. 

                        Dr. Heuser is a board certified forensic examiner.  He claims to have expertise in the areas of neurotoxicology and immunotoxicology.  However, he is not board certified in the areas of neurology, immunology, or toxicology.  Dr. Heuser diagnosed appellant as suffering from toxic encephalopathy, a degenerative brain disease caused by poisonous substances.  His diagnosis was based on the results of 1) a TOVA test; 2) a Microcog test; 3) a SPECT brain scan; and 4) a neuropsychological evaluation. 

                        At his deposition, Dr. Heuser testified that he was aware of only one epidemiological study showing a causal connection between mold exposure and human health problems.  That study was conducted in China, and compared two communities, both of whom consumed corn with mold on it.  The community whose corn had the higher amount of mold also had a greater incidence of cancer.  Dr. Heuser stated that he became interested in studying molds " in the last three to five years and have tried to, as a busy clinician, to do some reading in the off hours and I have certain textbooks which I have consulted."  

                        In addition to toxic encephalopathy, Dr. Heuser diagnosed appellant as suffering from neuropathy, chronic rhinitis, laryngitis, obstructive and restrictive lung disease, autoimmune problems, dry eyes, chronic fatigue, depression and post-traumatic stress disorder.  The TOVA and Microcog tests he administered are computer tests that measure cognitive functioning.  Both take a few minutes and were conducted in his office.  Appellant showed cognitive deficits, so Dr. Heuser referred her to a neuropsychologist for additional testing. 

                        Dr. Heuser has treated appellant with hyperbaric oxygen for her encephalopathy.  He originated this treatment and may be the only doctor in the world using it.  Dr. Heuser used the TOVA test to determine the effectiveness of hyperbaric oxygen treatment.  The TOVA test is not a standard diagnostic tool and he is " the first one to use the test" for that purpose.  It is generally used to diagnose attention deficit disorder.

                        Dr. Heuser was unaware of any peer-reviewed articles advocating the use of a SPECT scan to diagnose encephalopathy.  However, he has written a paper on this subject.  Nor does he know of any peer-reviewed articles stating that the TOVA and Microcog examinations can determine whether mold exposure causes toxic encephalopathy. 

                        At the in limine hearing, Dr. Heuser testified that he received a mold report indicating the presence of Stachybotrys mold in appellant's mobile home.  However, he could not determine whether the levels of mold were unhealthy because he does not have the necessary expertise to read a mold report.  A laboratory test of appellant's saliva showed the presence of antibodies associated with mold.  He could not determine whether the range was unhealthful because he is unable to read that type of laboratory report.

Juan Manuel Gutierrez, Ph.D.

                        Dr. Heuser referred appellant to Juan Manuel Gutierrez, Ph.D., a neuropsychologist.  He examined appellant and concluded she suffered from toxic encephalopathy and a mood disorder due to mold exposure.  Respondents filed a motion in limine (number 7) to exclude Gutierrez's opinion, claiming that it lacked a sufficient scientific basis to be admissible. 

                        Dr. Gutierrez also diagnosed appellant as suffering from post-traumatic stress disorder and a disturbance of taste and smell.  Appellant told Dr. Gutierrez that she had been exposed to mold for approximately 24 hours a day during the six weeks she lived in the mobile home.  She also told him that she had undergone, " 'blood work-ups, MRI, SPECT, sputum testing, ultrasound and physician exams.'"   However, Dr. Gutierrez did not review the results of those tests.  Nor did he review reports concerning air quality or mold in her mobile home.

                        Dr. Gutierrez conducted a battery of neuropsychological tests and compared the results to the neuropsychological profile of individuals who have been exposed to neurotoxins.  Generally, those individuals suffer from frontal lobe and temporal lobe damage, thus he concluded the appellant had suffered similar damage.  Dr. Gutierrez admitted that he based his diagnosis of toxic encephalopathy on the assumption that appellant had been exposed to mold and the mold was toxic.

In Limine Hearing

                        The court held an Evidence Code section 402 hearing to address respondents' motions in limine.  Dr. Heuser was the only expert who testified.  The trial court granted respondents' motions in limine numbered 5-7.  It also granted respondents' oral motion to exclude any evidence of personal injury.

                        The parties subsequently stipulated to judgment in favor of respondents on the three motions in limine as well as the oral motion.  Judgment was entered on the merits as to all causes of action in favor of respondents.  In its written ruling, the court found that " plaintiff consents to this judgment, which is a final appealable disposition of all plaintiff's claims against said defendants, in order to facilitate immediate appellate review of the  .  .  .  in limine rulings  .  .  .  ."

DISCUSSION

                        A stipulated judgment is appealable when the parties consent to the judgment solely to facilitate an appeal following adverse determination of a critical issue.  (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 400; Building Industry Assn. v. City of Camarillo (1986) 41 Cal.3d 810, 817.)  We review the trial court's ruling on the admissibility of evidence under an abuse of discretion standard.  (City of Ripon v. Sweetin(2002) 100 Cal.App.4th 887, 900; Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1431-1432.)  Here we consider whether the trial court erred in precluding the testimony of appellants' medical experts.

                        Under Evidence Code section 720, subdivision (a), " [a] person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates."   Such knowledge " may be shown by any otherwise admissible evidence, including [the expert's] own testimony."   (Id., subd. (b).)

                        A properly qualified expert may offer an opinion " [r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact."   (Evid. Code, §  801, subd. (a).)  Expert testimony is admissible only if based on matter of a type that may reasonably be relied on by an expert in forming an opinion on the subject to which his testimony relates.  (Id., subd. (b); Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523.)  An expert's opinion based on speculation or conjecture is inadmissible.  (In re Lockheed Litigation Cases(2004) 115 Cal.App.4th 558, 564.) 

                        Dr. Alessi relied on appellant's statements that she was exposed to toxic mold and that it was found in her saliva to conclude that mold exposure was the cause of her ailments.  He acknowledged that he did not review the result of the immunological, blood serology or environmental testing.  His opinion as to causation was based on speculation and properly excluded.

                        Under People v. Kelly (1976) 17 Cal.3d 24, the proponent of expert testimony based on a new scientific technique must establish that:  (1) the technique has gained general acceptance in its field; (2) the testimony regarding the technique and its application is offered by a properly qualified expert; and (3) correct scientific procedures were followed in the particular case.  (Id.at p. 30; People v. Venegas (1998) 18 Cal.4th 47, 78; People v. Farnam (2002) 28 Cal.4th 107, 160; see also People v. Leahy (1994) 8 Cal.4th 587, 591.)  The test applies only to new scientific techniques, and was formulated to protect the jury from new, novel or experimental scientific techniques that convey a misleading aura of scientific certainty.  (People v. Stoll (1989) 49 Cal.3d 1136, 1155-1156; Kelly, at pp. 30-32.)

                        Dr. Heuser testified that he was experienced in the treatment of patients who had been exposed to toxic substances.  He admitted, however, that he knew little about toxic molds.  He was aware of only one epidemiological study involving the effect of molds on humans.  He lacked the expertise to read laboratory or environmental reports indicating the presence of mold levels.  Dr. Heuser arrived at his diagnosis of toxic encephalopathy by performing a brain scan and using two computer tests (TOVA and Microcog) designed to measure cognitive functioning.  He is the only doctor who has used these tests for this purpose and the first doctor to use hyperbaric oxygen to treat encephalopathy.

                        Dr. Heuser lacked the medical and scientific background to offer an opinion on toxic mold exposure.  He did not use new scientific techniques; rather, he used accepted tests for a wholly new and unrelated purpose.  There is no support for his methods in the medical community, because he is the only doctor who uses them. 

                        The opinion evidence of Dr. Gutierrez was also properly excluded because it lacked a sufficient scientific basis and was speculative.  He relied on appellant's statement that she had been exposed to toxic mold to make his diagnosis.  He compared the results of her neuropsychological testing with a profile of individuals exposed to neurotoxins to conclude she suffered from toxic encephalopathy.  Dr. Gutierrez acknowledged that appellant's blood and saliva had been analyzed by a laboratory and she had undergone an MRI, SPECT scan and medical examinations.  However, he did not review the results of those tests or the reports concerning air quality or mold in her mobile home.

                        At oral argument, the parties argued extensively whether there was evidence that mold migrated from the mobile home into appellant's body.  We need not reach this issue because the experts' testimony was inadmissible. 

                        Dr. Alessi's opinion was speculative because he relied on appellant's self-report, but did not review the results of her immunological, blood serology or environmental testing.  Dr. Heuser lacked the medical background to offer an opinion on toxic mold exposure and his use of scientific testing was unsupported by any medical literature.  Dr. Gutierrez based his diagnosis solely on the results of appellant's neuropsychological testing but did not review her medical records or the results of laboratory and environmental tests.

                        The court correctly granted respondents' oral motion in limine to exclude any evidence of personal injury.  Evidence of appellant's physical ailments, standing alone, would have had no probative value.  There was no abuse of discretion.

                        The judgment is affirmed.  Costs on appeal are awarded to respondents.

                        NOT TO BE PUBLISHED.

                                                                        COFFEE, J.

We concur:

                        GILBERT, P.J.

                        PERREN, J.

Kent M. Kellegrew, Judge

Superior Court County of Ventura

______________________________

                        Law Offices of Whitenack and Scott B. Whitenack for Appellant Deborah Sutton.

                        Law Office of Veatch Huang and  Steve R. Segura, for Respondent Bonita Thaanum.

                        Law Offices of Samuel M. Huestis and Samuel M. Huestis for Respondents Hermitage Mobile Home Sales, Inc., and John McCarter.

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