Southern Louisiana is known for its historic buildings, easy going attitude and humid climate. Though these ingredients mix well for a great place to live or vacation, they can wreak havoc on the health and safety of residents’ homes and work places. This was the case recently in Belle Chasse. There, an individual who rented an office for her business discovered the building contained toxic mold that posed serious health risks. The problem needed immediate remediation. After being contacted, the property owners began removal of the mold. However, the mold, according to the tenant, was so exacerbated that she was forced to abandon the office. The tenant then filed suit against the landlords and their insurance company seeking compensation for business and health related damages.
The importance of this case lies in its examination of expert testimony. In this instance, the tenant sought to have her doctor testify that her chronic fatigue syndrome and other health conditions were directly related to the toxic mold in her office. The landlords claimed it would be erroneous for the court to classify the doctor as an expert and asked that the lawsuit be excused. The court agreed with the landlords and, on appeal, so did the Court of Appeal for the Fourth Circuit.
Expert testimony is governed by the Daubert rule. According to this rule, in order for expert testimony to be heard it must be deemed to be relevant and reliable. The Supreme Court in Daubert provided that relevancy and reliability are determined by a set of factors: (1) testability of the scientific theory; (2) whether the theory has been subject to peer review; (3) knowledge of the theory’s rate of error; and (4) whether the theory has gained general acceptance within the scientific community. These factors are non-exclusive, but provide a solid framework for courts when determining whether to allow an “expert’s” testimony.
The Daubert rule, therefore, obviously allows judges to be gatekeepers with regards to expert witnesses, but for good reason. When a jury hears testimony about a specialized field that they have little or no knowledge about, they will be more likely to take that testifier at his word. If expert witnesses were not thoroughly vetted, then juries would be easily misled and unjust conclusions would be reached. Therefore, judges must scrupulously analyze each expert witness to determine whether the jury can reasonably rely on his testimony.
In the moldy office case, the court found that the doctor’s theory, that chronic fatigue syndrome could be caused by toxic mold, had never been subjected to peer review and that she had never even attended any seminars on toxic mold. Thus, her knowledge as to toxic mold and its health effects were limited. In fact, the doctor made her chronic fatigue syndrome diagnosis four years after the incident. This meant that the doctor was ignorant to the types and levels of molds found in the office and was merely relying on what the plaintiff told her. The court did not buy this doctor’s temporal proximity theory and thus excluded her as an expert witness.
An expert witness, as illustrated by this case, can make or break a case. When finding an expert witness, it is important that the expert is knowledgeable about the event in question and the scientific area being analyzed. This testimony, if reliable and relevant under Daubert, can go a long way toward winning compensation. The importance of an expert witness then, of facing insurmountable medical debt and lost wages or having that burden eased, is unquestionable.
Yet, many difficult issues including reputation, cost and experience can make the decision of choosing an expert witness daunting. Such complexities are best left to a competent attorney with experience working with expert witnesses. If you have been injured and need an expert witness and/or compensation, the Berniard Law Firm can help.