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Roberti v. Andy's Termite & Pest Cotrol11/26/2003
CERTIFIED FOR PUBLICATION
INTRODUCTION
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, 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."
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. 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. 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 e
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