Brancati v. Cachuma Vill., LLC

96 Cal.App.5th 499

314 Cal.Rptr.3d 424

Dana BRANCATI, Plaintiff and Appellant,

v.CACHUMA VILLAGE, LLC, Defendant and Respondent.

2d Civ. No. B321616

Court of Appeal, Second District, Division 6, California.

Filed October 16, 2023

As Modified on Denial of Rehearing November 9, 2023

Richard I. Wideman for Plaintiff and Appellant.

Mullen & Henzell, Rafael Gonzalez and Sean Stratford-Jones for Defendant and Respondent.

GILBERT, P. J.

Here we decide an expert is qualified to render an opinion on whether a person's exposure to mold is harmful. It is up to the trier of fact to determine the expert's credibility.

Dana Brancati, a former tenant, appeals a judgment of dismissal following the trial court's granting a motion in limine filed by defendant Cachuma Village, LLC (Cachuma), her landlord. Brancati filed a complaint for, among other things, personal injuries for exposure to mold. Cachuma moved in limine to exclude Brancati's medical expert from testifying about the medical causation of her illnesses due to mold.

Because the medical expert was qualified and his opinion was based on facts and a differential diagnosis, the trial court erred in excluding his evidence. We reverse.

FACTS

Brancati entered a month-to-month lease with Cachuma to reside in its premises. She resided there from April 2012 to April 2016. She complained to Cachuma about mold "infestation" and Cachuma's failure to correct that problem. In 2016, Insight Environmental, a company that specialized in mold testing, determined there were high levels of a variety of dangerous types of mold at her residence at Cachuma.

Brancati filed a complaint for breach of the warranty of habitability, fraud, constructive eviction, and personal injuries for exposure to mold. She alleged that she had suffered "respiratory illnesses" because of exposure to the mold. She sought $50,000 for her injuries.

Brancati relied on the testimony of Ronald A. Simon, M.D., as her expert to prove the cause of her medical illnesses. At his deposition Simon testified that "as a result of living" in her home environment with "excess mold growth," Brancati had "a variety of adverse health effects that started fairly shortly after she moved in there."

Cachuma moved in limine to exclude Simon from testifying on causation, or, alternatively, for an Evidence Code section 402 hearing to determine admissibility. Cachuma claimed Simon was not qualified to testify on medical causation of Brancati's illnesses due to mold.

In her opposition, Brancati claimed, "Dr. Simon's testimony is not only based on both his examinations of [Brancati], but his experience and the scientific literature which establishes that exposure to damp moldy environments has negative effects on health."

At a pretrial hearing, the trial court ruled Simon was not qualified to testify on the medical causation issue. Brancati was not able to proceed to trial without Simon's testimony. The trial court dismissed this action.

DISCUSSION

Standard of Review

Where a trial court grants a motion in limine that prevents a party's expert from testifying and leads to a dismissal, we review that order for an abuse of discretion. ( Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 677, 56 Cal.Rptr.2d 803 ; see also Geffcken v. D'Andrea (2006) 137 Cal.App.4th 1298, 1311, 41 Cal.Rptr.3d 80 [" ‘If the court excludes expert testimony on the ground that there is no reasonable basis for the opinion, we review the exclusion of evidence under the abuse of discretion standard’ "].)

Where the granting of a motion in limine "precludes an entire cause of action" or is tantamount to a nonsuit, we may also conduct our review de novo to determine whether the trial court erred as a matter of law. ( Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1279, 203 Cal.Rptr.3d 183 ; McMillin Companies, LLC v. American Safety Indemnity Co. (2015) 233 Cal.App.4th 518, 530, 183 Cal.Rptr.3d 26.)

Brancati presented evidence showing her expert is a qualified medical doctor and a scientific researcher. She was prepared to present relevant evidence on the cause of her respiratory illness. The trial court's ruling prevented her from having a trial. The court's order is not consistent with the standard courts must use to decide whether to exclude an expert from testifying.

Disqualifying Experts

"Trial judges have a ‘substantial "gatekeeping" responsibility’ to ensure that an expert's opinion is based on both reliable material and sound reasoning." ( Bader v. Johnson & Johnson (2022) 86 Cal.App.5th 1094, 1104, 303 Cal.Rptr.3d 162.) " ‘The trial court's preliminary [or gatekeeping] determination whether the expert opinion is founded on sound logic is not a decision on its persuasiveness.’ " ( Id . at p. 1105, 303 Cal.Rptr.3d 162.) " ‘The court must not weigh an opinion's probative value or substitute its own opinion for the expert's opinion.’ " ( Ibid . ) " ‘Rather, the court must simply determine whether the matter relied on can provide a reasonable basis for the opinion or whether that opinion is based on a leap of logic or conjecture.’ " ( Ibid . ) " ‘The court does not resolve scientific controversies.’ " ( Ibid . )

In determining evidence of causation, the court applies a substantial factor standard. " ‘The substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical.’ " ( Bockrath v. Aldrich Chemical Co., Inc . (1999) 21 Cal.4th 71, 79, 86 Cal.Rptr.2d 846, 980 P.2d 398.)

"As a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination." ( Bonner v. ISP Technologies, Inc . (8th Cir. 2001) 259 F.3d 924, 929.) "Only if the expert's opinion is so fundamentally unsupported that it can offer no assistance to the jury must such testimony be excluded." ( Id . at pp. 929-930.)

Medical doctors are experts who are in the best position to determine the nature of illnesses experienced by patients. ( San Jose Neurospine v. Aetna Health of California, Inc . (2020) 45 Cal.App.5th 953, 960, 259 Cal.Rptr.3d 257.)

Doctor Simon testified that Brancati's "adverse health effects" were the result of her living at the Cachuma residence where she was exposed to "excess mold growth." The trial court ruled Simon was not qualified to make a diagnosis of mold as the cause of her illnesses. But Simon's opinion was based on facts, not on a "leap of logic or conjecture." ( Bader v. Johnson & Johnson , supra , 86 Cal.App.5th at p. 1105, 303 Cal.Rptr.3d 162.)

Evidence of Mold at Brancati's Residence

The 2016 Insight Environmental testing report showed Brancati's residence at Cachuma showed "high levels" of "aspergillus" and "penicillium" mold growth near her shower. Air samples from her hallway showed "elevated levels of Aspergillus/Penicillium and Stachybotrys mold growth." (Italics added.) Insight Environmental said that stachybotrys, aspergillus, and penicillium produce "fungal metabolites that may be toxic" when "inhaled." These are the types of mold that "produce mycotoxins." It also determined that the "mold spores" at her residence "pose an immediate threat of occupant exposure ." (Italics added.) Included within that report were color photographs that showed large concentrations of mold growth in various parts of Brancati's Cachuma residence.

Stachybotrys, aspergillus, and penicillium may be toxic. (Jarman & Felstiner, Mold Is Gold: But, Will it be the Next Asbestos (2003) 30 Pepperdine L.Rev. 529, 549.) Stachybotrys chartarum "has killed animals." ( Id. at p. 542.) It is "especially harmful to small children." ( Id . at p. 533.) Health professionals have linked it to sudden infant death syndrome. (Ibid .) "[E]xcessive exposure to mold has been a health issue for humans for many years." ( Id . at p. 534.)

Methods to Prove Mold as the Cause of an Illness

There are two methods used to prove mold is the cause of an illness. An expert may testify using a "methodology generally recognized in the scientific community" to determine mold as the cause ( B.T.N. v. Auburn Enlarged City School Dist . (2007) 45 A.D.3d 1339, 845 N.Y.S.2d 614 ) and may rely on epidemiological studies to show a statistical link between exposure to the substance and the cause of the illness. ( Johnson & Johnson Talcum Powder Cases (2019) 37 Cal.App.5th 292, 326, 249 Cal.Rptr.3d 642.) Alternatively, a doctor who examines a patient may use a medical "differential diagnosis" to determine mold as the cause of a diagnosed illness. ( B.T.N. , at p. 1340, 845 N.Y.S.2d 614 ; see also Cooper v. Takeda Pharmaceuticals America, Inc . (2015) 239 Cal.App.4th 555, 586, 191 Cal.Rptr.3d 67 ; Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1384-1385, 5 Cal.Rptr.2d 882.) Here Simon, as a medical doctor and a researcher, attempted to use both methods.

Simon's Ability as a Medical Doctor to Diagnose Mold as the Cause of Brancati's Respiratory Illness

Medical doctors who examine patients may reach the most probable diagnosis for a patient's condition through a process of elimination. ( Cottle v. Superior Court , supra , 3 Cal.App.4th at pp. 1384-1385, 5 Cal.Rptr.2d 882.) They are expected to identify the "source of a patient's illness" ( Finn v. G.D. Searle & Co. (1984) 35 Cal.3d 691, 704, 200 Cal.Rptr. 870, 677 P.2d 1147 ) and diagnose "the nature of [the] disease ... from a study of its symptoms." ( Ibid. ) Doctors may consider exposure to hazardous substances as a factor causing an illness. ( Davis v. Honeywell Internat. Inc. (2016) 245 Cal.App.4th 477, 495, 199 Cal.Rptr.3d 583.)

Simon, a medical doctor, examined Brancati. He was board certified in allergy and immunology and was qualified to testify about the impact of hazardous substances on Brancati's respiratory tract ( San Jose Neurospine v. Aetna Health of California, Inc., supra , 45 Cal.App.5th at p. 960, 259 Cal.Rptr.3d 257 ); the symptoms ...