BLAKE AND COURTNEY FREEMAN, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILDREN
FON'S PEST MANAGEMENT, INC. AND ABC INSURANCE CO.
OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH
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
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
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.
a Daubert hearing, the district court granted
defendants' motion in limine striking these experts'
testimony. The court of appeal affirmed, finding no error in
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'
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).
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 ...