Introduction
In 2006, the California Court of Appeals, in Geffcken v. D’Andrea (2006) 137 Cal.App.4th 1298, wrote a lengthy opinion upholding a trial court’s evidentiary rulings excluding plaintiffs’ proffered expert testimony in a mold injury case on the grounds that the proffered testimony lacked scientific validity. Kring & Chung reported to its clients at that time with an analysis of the Geffcken decision. On June 1, 2009, the Court of Appeals, in Dee v. PCS Property Management, 2009 DJDAR 7757, again considered the admissibility of mold “expert” testimony and again rejected it. Our reading of Dee is that the Court of Appeals has decided mold injury claims are “junk science,” and so will support trial judges who withhold plaintiffs’ experts’ testimony on mold from a jury. Indeed, the Court’s hostility toward mold injury claims is apparent in the first two sentences of the Dee decision: “Mold is a fungus which is essentially everywhere. Almost every breath we take contains mold spores."
The “Sensitive” Tenant
Darci Dee moved into Unit 307 of the Mammoth Park Towers apartment complex in Los Angeles on January 18, 2001. Prior to moving into this unit, she had complained about mold in another apartment building. She lived in Unit 307 for only four and one half months. She made frequent complaints to the apartment management, PCS, about possible mold in the apartment. On May 23, 2001, a mold test found stachybotrys in her apartment. A further mold test on June 1, 2001, found stachybotrys growing inside the walls of the apartment. At this point, on June 1, 2001, Ms. Dee was allowed to move out of her apartment at PCS’s expense.
Ms. Dee subsequently filed suit against the apartment complex manager and owner, claiming she suffered the following medical conditions as a result of exposure to stachybotrys in Unit 307: Dizziness, fatigue, diarrhea, vomiting, bloody nose, migraines, itchiness, redness on her feet and hands, confusion, chills, depression, hair loss, stomach, back, head and neck aches, absence of menstruation, problems breathing, tightness in her chest, excessive heartburn, burning skin, food sensitivities, hives, and eye infections. In addition, the physician to whom her attorney referred her, Dr. Gary Ordog, advised Ms. Dee she had been rendered excessively susceptible to cancer as a result of her exposure to mold, and recommend that she receive “annual cancer tests.”
Plaintiffs’ Scientific Evidence
- Mold Test Results
- May 14, 2001- Mold test finds stachybotrys in apartment. The concentration level, location, and medium (airborne or surface) is not stated in the court’s opinion. No test is performed for mycotoxins, which the court describes as “organic compounds produced by mold spores [which are] capable of initiating a toxic response in vertebrates.”
- June 1, 2001- A wall is opened up and a surface swab is taken which tests positive for stachybotrys. No test is performed for mycotoxins. The plaintiff moves out of her apartment.
- June 5, 2001- Airborne sampling reveals two spores of stachybotrys. Dust samples taken from the carpet showed aspergillus, penicillium, and caudisporum.
- June 14, 2001- Additional samples are taken and the presence of a mycotoxin, gliotoxin, is confirmed. However, the amount is so small that it is excluded from the analysis.
- Blood Sample Test
A sample of plaintiffs’ blood was sent to Immunoscience Laboratories, run by Dr. Aristo Vojdani. Dr. Vojdani ran an ELISA test and an interleukin-2 test on the blood sample, both of which purportedly showed plaintiffs’ blood contained antibodies triggered by exposure to mycotoxins. These tests were considered by the Court of Appeals in Geffcken, which noted that Dr. Vojdani is the only person in the world who performs the tests, that he has not published in peer-reviewed journals to obtain peer approval of his methodology, and that his tests are not generally accepted in the relevant medical community as being capable of identifying exposure to mycotoxins.
- Radio-Isotopes Test
Plaintiff also underwent a SPECT scan, described as “a nuclear medicine study that uses small doses of radioisotopes to evaluate brain flow and activity patterns." This study was relied on by plaintiffs’ expert consultants to support, in part, their opinion that she suffered brain damage as a result of exposure to toxic mold.
Proposed Testimony by Plaintiffs’ Experts
- Dr. Gary Ordog
Dr. Ordog is a physician who specializes in medical toxicology. He is frequently used by plaintiffs’ counsel in mold injury cases. His testimony was proffered, and excluded, in the Geffcken case. He was plaintiffs’ lead medical expert in Dee. At a pre-trial evidentiary hearing he testified that Dee had been exposed to toxic mold and had suffered, as a result, from the various physical ailments she related in her complaint. In support of his conclusion that Dee was exposed to toxic mold, Dr. Ordog cited the results of the four mold samples taken from her apartment, the blood antibody test results from Dr. Vodjani’s laboratory, and the results of the SPECT scan. On cross-examination, Dr. Ordog was forced to admit that no mycotoxins were found in any of the mold samples with the exception of the “very minor” amount of gliotoxin found in the last sample, which was obtained two weeks after the plaintiff moved out of her apartment.
The trial judge ruled that Dr. Ordog could testify before the jury, but would not be allowed to state a direct causal link between mold in the plaintiffs’ apartment and her medical symptoms. The blood test results and the SPECT scan results were barred completely- no mention could be made of them. At most, Dr. Ordog could testify that plaintiff suffered from various symptoms and that, in his opinion, her symptoms were “consistent with exposure to mold.”
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Dr. Gunnar Heuser
Dr. Heuser is a physician specializing in clinical toxicology who treated Dee from May 2003 to February 2004. His deposition testimony was considered by the trial judge in a pre-trial evidentiary hearing. Dr. Heuser’s testimony was very similar to Dr. Ordog’s in that he vouched for the various ailments suffered by the plaintiff and opined that they were due to exposure to toxic mold. Like Ordog, Heuser relied on the SPECT scan for part of his assessment, and on the reports from Immunosciences Laboratories. However, he knew nothing about the quantity or amount of exposure necessary to cause a carcinogenic effect, nor about the amount of any "mold toxin" to which Dee was exposed.
The trial court ruled that Dr. Heuser would not be allowed to testify as to a causal link between the plaintiffs’ alleged physical ailments and exposure to mold. Instead, he would only be allowed to describe her symptoms and her fear of cancer.
- Dr. Juan Manuel Gutierrez
Dr. Gutierrez, a clinical neuropsychologist, performed a battery of tests on the plaintiff aimed at assessing her mental function. He was prepared to testify as to a degree of mental impairment which, he believed, was due to exposure to mycotoxins. However, he admitted he is not an expert on mold and based his causation analysis on Dr. Ordog’s opinion on the same subject. The trial court allowed Dr. Gutierrez to testify as to the tests he performed on the plaintiff and the meaning of those tests, but not to opine regarding causation of mental impairment.
Trial and Verdict
A trial by jury was held. Evidence on a range of issues was presented. The results of the mold sampling were admitted into evidence and their significance discussed by both plaintiff and defense experts. Testimony regarding the apartment manager’s knowledge of, and response to, alleged mold contamination in Unit 307 was heard. Medical experts testified regarding plaintiffs’ medical symptoms, though none were allowed to directly link her symptoms to mold exposure.
The jury returned a special verdict finding none of the defendants negligent. Accordingly, it was not required to determine whether the plaintiff suffered injury as a result of exposure to mold. Failure of proof as to negligence on the defendants’ part resulted, by itself, in a defense verdict.
Decision on Appeal
Despite the fact that the jury made no finding regarding the plaintiff’s alleged injuries, the Court of Appeals chose to decide whether the trial court acted properly in limiting the plaintiffs’ experts’ testimony as it did. The Court’s apparent willingness to reach out for this issue, when it was not required to do so to support the verdict, is a sure signal that it intends to send a message. That message is, in our opinion, “Mold injury claims are not supported by credible science.”
The Court of Appeals minced no words in finding the trial court acted properly in limiting the testimony of plaintiffs’ experts:
Here, as in Geffcken, Dr. Ordog and others sought to testify that Dee's exposure to mycotoxins caused her symptoms and her susceptibility to cancer without any evidence that Dee was exposed to mycotoxins. Ordog's, Heuser's, and Gutierrez's opinions relied on an incorrect premise, and thus their opinions lacked evidentiary value. (Lockheed Litigation Cases, supra, 115 Cal.App.4th at p. 564 ["An expert opinion has no value if its basis is unsound."].) Although a minute amount of gliotoxin was found weeks after Dee moved out of her apartment, nothing in the record supports a causal connection between a minute amount of gliotoxin and any illness. Thus, as in Geffcken, the opinions of Drs. Ordog, Heuser, and Gutierrez were based on speculation and conjecture. (See Jennings v. Palomar Pomerado Health Systems, Inc., supra, 114 Cal.App.4th at p. 1117 ["[W]hen an expert's opinion is purely conclusory because unaccompanied by a reasoned explanation connecting the factual predicates to the ultimate conclusion, that opinion has no evidentiary value"].) Finally, as in Geffcken, Ordog, Heuser, and Guttierez relied on a SPECT scan and blood tests that failed Kelly requirements (an issue undisputed on appeal). There was no abuse of discretion in determining that Ordog's, Heuser's, and Gutierrez's opinions lacked foundation.
Lessons for Defense of Mold Cases
In truth, Dee breaks no new ground that was not already covered by Geffcken. For the defense bar, the main lesson of Dee is that the Court of Appeals remains skeptical of the “science” underlying mold injury claims. Two practical points emerge:
- Mold sampling results that merely identify the type and quantity of mold spores present in a residence are not probative. The sampling must instead confirm the type and quantity of mycotoxins produced by the mold spores, as it is only mycotoxins that cause an adverse reaction.
- Blood tests that purports to prove exposure to mycotoxins by the presence of certain antibodies are not admissible in evidence. Such tests have no scientific validity due to lack of peer review and lack of acceptance by the scientific community.
Dee also emphasizes the importance of obtaining qualified defense experts to refute plaintiffs’ mold experts, and of filing appropriate motions-in-limine to force an evidentiary hearing prior to trial to keep non-scientific claims from a jury.
