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Blake and Courtney Freeman v. Fon's Pest Management, Inc.

Supreme Court of Louisiana

February 9, 2018

BLAKE AND COURTNEY FREEMAN, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILDREN
v.
FON'S PEST MANAGEMENT, INC. AND ABC INSURANCE CO.

         ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF TERREBONNE

          PER CURIAM

         We grant plaintiffs' writ application in part, finding the lower courts erred in granting defendant's motions in limine and striking the expert opinion testimony of Dr. Robert Geller, Dr. Lawrence Guzzardi, Dr. Jason Richardson, and Mr. Laurence Durio. We also find the lower courts erred in granting defendant's motion for summary judgment. In all other respects, plaintiffs' writ application is denied.

         In July of 2010, on two separate occasions, defendant Fon's Pest Management, Inc. spot treated the Freeman's home for termites using Termidor-SC, a termiticide containing fipronil. Fipronil is an odorless and colorless neurotoxin that has been widely used since 1996. Fon's treated the termite damage areas by drilling holes through the concrete slab and injecting termiticide into the soil under the slab. Following the treatments, the plaintiffs allegedly experienced headaches, nausea, dizziness, and confusion. Subsequently, the Freemans filed the underlying suit against Fon's and its insurer alleging that they suffered personal injuries and property damages due to exposure to fipronil that was contained in the termiticide

         The Freemans retained several experts in this matter, including Robert Geller, MD (medical toxicologist), Lawrence Guzzardi, MD (medical toxicologist), Jason Richardson, Ph.D. (toxicologist) and Laurence Durio (Certified Industrial Hygienist). Fon's filed several pre-trial motions including motions to exclude the expert testimonies of Drs. Geller, Guzzardi and Richardson, and Mr. Durio, asserting the proposed testimony did not meet the requirements for admissibility under La. C.E. art. 702, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Cheairs v. DOTD, 03-0680 (La. 12/3/03), 861 So.2d 536. Defendant also filed a motion for summary judgment, seeking dismissal of the case.

         Following a Daubert hearing, the district court granted defendants' motion in limine striking these experts' testimony. The court of appeal affirmed, finding no error in that ruling:

After reviewing the record, this Court finds no abuse of the district court's discretion in ruling that the plaintiffs' three toxicologist experts (Dr. Geller, Dr. Guzzardi, and Dr. Richardson) and Mr. Durio, the industrial hygienist, opinions and testimonies fail to satisfy the admissibility requirements of Daubert. After conducting a Daubert hearing, the district court determined that the experts testimonies should be excluded because: 1) none of the experts are experts regarding fipronil, the termiticide that allegedly caused the plaintiffs' injuries 2) none of the experts wrote or contributed to any peer-reviewed articles concerning the effects of pesticides in humans or the effects of fipronil in humans 3) none of the experts attempted a dose reconstruction to determine the amount of fipronil to which the plaintiffs; either collectively or individually, were allegedly exposed 4) none of the experts had access to any biological data or air quality data that conclusively establishes that the plaintiffs were exposed to an appreciable level of fipronil; and 5) no articles or studies reviewed by the experts proves a causal connection between fipronil and the plaintiffs' claims.
Moreover, the plaintiffs' experts had conflicting testimonies. Dr. Geller suggested that the fipronil exposure was through inhalation while Mr. Durio believes that fipronil cannot be inhaled. Dr. Richardson alleges that the fipronil exposure was dermal (skin) exposure. Dr. Geller states that, while there is no data to support his opinion, dermal exposure would not have caused the symptoms the plaintiffs allege, but Dr. Richardson disagrees. Additionally, the experts have conflicting testimonies on the effects of the exposure of the fipronil. Dr. Richardson suggests that fipronil caused neuropsychiatric conditions in Blake Freeman, but admits that there is no scientific data to support his opinion. However, Dr. Guzzardi disagrees that Blake Freeman has psychiatric conditions.
Accordingly, we hold that the district court did not abuse its discretion in finding that Dr. Geller, Dr. Guzzardi, Dr. Richardson, and Mr. Durio's opinions and testimonies fail to satisfy the requirements of La. Code of Evid. art. 702 as interpreted in Cheairs and Daubert, as the experts' opinions are unreliable because there is no scientific evidence to support their opinions and the probative value is substantially outweighed by the danger of unfair prejudice and misleading the jury as to their opinions' scientific validity. See La. Code of Evid. arts. 104, 403.

Freeman v. Fon's Pest Mgmt., Inc., 2016-0208 (La.App. 1 Cir. 10/2/17, 9-10).

         The standard for determining the admissibility of expert testimony was established by the United States Supreme Court in Daubert. This Court further specified the admissibility of expert testimony in Cheairs v. DOTD, 2003-0680, (La. 12/3/03), 861 So.2d 536. Daubert is now codified in Louisiana Code of Evidence article 702, which governs the admissibility of expert testimony as follows:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(1) The expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence ...

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