Joseph Gaudette, Joyce Gaudette, Individually and A/N/F for Andrew Wilkes, Audrey Gaudette and Austen Gaudette v. Conn Appliances, Inc.

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-06-444 CV

____________________

JOSEPH GAUDETTE, JOYCE GAUDETTE, individually and

as next friend for ANDREW WILKES, AUDREY GAUDETTE,

and AUSTEN GAUDETTE, Appellants

V.

CONN APPLIANCES, INC., Appellee

On Appeal from the 172nd District Court

Jefferson County, Texas

Trial Cause No. E-166-259

MEMORANDUM OPINION

Plaintiffs Joseph Gaudette, Joyce Gaudette, individually and as next friend for Andrew

Wilkes, Audrey Gaudette, and Austen Gaudette, sued Conn Appliances, Inc. for harm to their

pulmonary, nervous, immune, digestive, and other systems from toxic mold and fungi,

alleging Conn Appliances' negligently installed a refrigerator in plaintiffs' home. Conn

Appliances filed a motion to exclude expert witness Dr. Andrew Campbell's testimony under

Rule 702 of the Texas Rules of Evidence. The trial court granted the motion. Conn

Appliances then filed a traditional and no-evidence motion for summary judgment. The

plaintiffs appeal the trial court's orders excluding Campbell's testimony and granting final

summary judgment. We affirm.

Exclusion of Campbell's Testimony

At the hearing on the motion to exclude Campbell's testimony, Dr. Campbell (1) testified

he began treating the appellants in 2001 for complaints of headaches, memory loss, sleep

disturbance, fatigue, and infections. He took a medical history of the family and was told

that the family members "almost simultaneously . . . developed medical problems." He

testified at the hearing that he diagnosed the mother, Joyce, with chronic inflammatory

demyelinating polyneuropathy (CIDP), and the daughter, Audrey, with the "[s]ame thing

. . . demyelinating polyneuropathy." He did not prove any specific diagnoses for Joseph,

Austen, and Andrew, but stated that their immune systems were "off." (2) He concluded their

symptoms resulted from molds in their home. Specifically, his diagnoses of appellants were

premised on his theory that their illnesses resulted from indoor exposure to mycotoxins.

Conn Appliances' motion to exclude Campbell's testimony asserts that Dr.

Campbell's diagnoses of mold-related autoimmune and/or neuropathic problems were "junk

science" and that there is no scientific or medical evidence to support Campbell's theory that

exposure to mycotoxins in an indoor environment is capable of causing any immunologic or

neurologic health effects. The trial court granted Conn Appliances' motion to exclude

Campbell's testimony under Rule 702.

Standard of Review and Reliability under Rule 702

An expert witness may testify regarding "scientific, technical, or other specialized"

matters if the expert is qualified and if the expert's opinion is relevant and based on a reliable

foundation. Tex. R. Evid. 702; Helena Chem. Co. v. Wilkins , 47 S.W.3d 486, 499 (Tex.

2001); E.I. du Pont de Nemours & Co. v. Robinson , 923 S.W.2d 549, 556 (Tex. 1995). In

determining whether expert testimony is reliable, a court must examine "the principles,

research, and methodology underlying an expert's conclusions." Exxon Pipeline Co. v.

Zwahr , 88 S.W.3d 623, 629 (Tex. 2002). If the testimony involves scientific knowledge, the

expert's conclusions must be "grounded 'in the methods and procedures of science,'" or

otherwise is "no more than 'subjective belief or unsupported speculation.'" Robinson , 923

S.W.2d at 557 (quoting Daubert v. Merrell Dow Pharms., Inc. , 509 U.S. 579 , 590 113 S.Ct.

2786 , 125 L.Ed. 2d 469 (1993)).

In determining the reliability of expert testimony involving scientific knowledge, a

trial court should consider several non-exclusive factors: (1) the extent to which the theory

has been or can be tested; (2) the extent to which the technique relies upon the subjective

interpretation of the expert; (3) whether the theory has been subjected to peer review and/or

publication; (4) the technique's potential rate of error; (5) whether the underlying theory or

technique has been generally accepted as valid by the relevant scientific community; and (6)

the non-judicial uses that have been made of the theory or technique. Robinson , 923 S.W.2d

at 557 .

Toxic tort cases require proof of both general and specific causation about the effects

of the toxic substance. Merrell Dow Pharms., Inc. v. Havner , 953 S.W.2d 706, 714-15, 720

(Tex. 1997). "General causation is whether a substance is capable of causing a particular

injury or condition in the general population, while specific causation is whether a substance

caused a particular individual's injury." Id . General causation may be proved either through

experiments to show that a substance is capable of causing a particular injury or by

attempting to show that exposure to a substance increases the risk of a particular injury. Id.

at 714-15 . The Robinson factors may be applied in toxic tort cases involving a no evidence

claim such as the claim brought here by Conn Appliances. See id. at 714.

A trial court has broad discretion in determining whether expert testimony is

admissible. Zwahr , 88 S.W.3d at 629 . A trial court's ruling on the admissibility of an

expert's testimony will be reversed only upon an abuse of discretion. K-Mart Corp. v.

Honeycutt , 24 S.W.3d 357, 360 (Tex. 2000). A trial court abuses its discretion when its

decision is arbitrary or unreasonable or acts without reference to any guiding rules or

principles. Id. A reviewing court cannot conclude that a trial court abused its discretion

merely because, in the same circumstances, the reviewing court would have ruled differently

or because the trial court committed a mere error in judgment. Robinson , 923 S.W.2d at 558 .

The trial court's order excluding Dr. Campbell's testimony concluded that Campbell's

theories, opinions, and analysis have not been sufficiently tested; Campbell's diagnosis of

causation and conclusions have not been sufficiently tested; Campbell's diagnosis of

causation and conclusions as to the Plaintiffs is subjective; Campbell's diagnoses made of

the Plaintiffs or his causation conclusion are not supported by sufficient peer reviews; and

"that the evidence does not demonstrate a theory of causation that is generally accepted in

the scientific and medical communities." In other words, the trial court relied on Robinson

factors 1, 2, 3, and 5 in excluding Campbell's testimony. See id.

Appellants argue on appeal that Dr. Campbell's testimony should not have been

excluded by the trial court because, on the issue of "reliability," his testimony satisfied

Robinson . Specifically, appellants argue that the trial court's decision to exclude Campbell's

testimony was based on the issue of general acceptance, which is only one of the six non-exclusive factors for the court to consider. Appellants assert the court failed to consider the

non-judicial uses of Campbell's theories and the publication of his theories in peer-reviewed

literature.

A trial court should consider the Robinson factors "when doing so will be helpful in

determining reliability of an expert's testimony, regardless of whether the testimony is

scientific in nature or experienced-based." Mack Trucks, Inc. v. Tamez , 206 S.W.3d 572, 579

(Tex. 2006). Although appellants argue in their reply brief that Gammill , which addresses

the admissibility of experts who are not in a scientific field or are professionals (3)

, is the

appropriate test for reliability of Campbell's testimony, we find the trial court acted within

its discretion in measuring the reliability of Campbell's testimony by considering the

Robinson factors. See id. ("A significant part of the trial court's gatekeeper function is to

evaluate the expert's qualifications, listen to the testimony, view the evidence, and determine

which factors and evaluation methodology are most appropriate to apply." ). We now turn

to the evidence presented to the trial court as to each of the Robinson factors to determine

whether the trial court abused its discretion in excluding Campbell's testimony.

The Robinson Factors

The Extent to Which the Theory Has Been or Can Be Tested

Conn Appliances argues there is no general causation and that Campbell's diagnoses

here are immaterial because of the absence of medical evidence that indoor inhalation

exposure to mycotoxins is capable of causing any toxic conditions in humans. Conn

Appliances maintains that Campbell's "diagnoses of mold related autoimmune/neuropathic

disorders [have] been roundly rejected by every major medical and governmental group that

has examined the . . . issue over the last five years, including: the National Academy of

Sciences; the Institute of Medicine; Center for Disease Control and Prevention (CDC);

National Institute of Occupational Safety and Health (NIOSH); American Academy of

Allergist & Immunologists; American College of Occupational and Environmental Medicine;

Texas Medical Association's Council on Scientific Affairs; and, most recently the Texas

Medical Association in 2006."

Conn Appliances attached to its motion the following recent literature in support of

its argument that there is no medical evidence that indoor inhalation exposure to mycotoxins

is cable of causing any toxic conditions in humans:

(1) an American Academy of Allergist and Immunologists position

paper published in the Journal of Allergy and Clinical Immunology for

February 2006 addressing the issue of mold-induced immune dysfunction

concluding that: (a) "[t]here is . . . no reliable evidence for mold exposure in

any setting being a [sic] linked to the induction of autoimmune diseases in

human subjects[;]" (b) "[e]xposure to molds and their products does not induce

a state of immune dysregulation (eg, immunodeficiency or autoimmunity)[;]"

and (c) "[t]he occurrence of mold-related toxicity (mycotoxicosis) from

exposure to inhaled mycotoxins in nonoccupational settings is not supported

by the current data, and its occurrence is improbable."

(2) a study by scientists from NIOSH and the CDC published in the

Annals of Allergy, Asthma, & Immunology for May 2004, entitled, "Clinical

use of immunoassays in assessing exposure to fungi and potential health

effects related to fungal exposure[,]" which states that "[r]ecent reviews of the

literature specifically addressing concerns about health effects related to

mycotoxins have concluded that there is as of yet no compelling scientific

evidence linking exposure to fungi in residential or commercial indoor

environments to toxin-induced adverse health effects."

(3) a report in the January 2003 issue of Clinical Microbiology Reviews

noting that: (a) "despite many reported subjective complaints, there is no

objective evidence for neurological compromise caused by indoor mold

exposure" and (b) "to date there is no good evidence of significant

immunological compromise from inhaled fungal toxins."

(4) a peer-reviewed policy statement issued October 27, 2002, by the

American College of Occupational and Environmental Medicine concluding

that "[c]urrent scientific evidence does not support the proposition that human

health has been adversely affected by inhaled mycotoxins in home, school, or

office environments."

(5) a Texas Medical Association's Council on Scientific Affairs policy

paper on Black Mold and Human Illness from September 2002, which

concluded that (a) "the proposition that molds in indoor environments may

lead to adverse health effects through mechanisms other than infection and

allergic/immunologic reactions is an untested impression" and (b) "[a]dverse

health effects from inhalation of Stachybotrys spores in water-damaged

buildings is not supported by available peer-reviewed reports in medical

literature."

(6) the Texas Medical Association's "Review of 'Damp Indoor Spaces

and Health' Reported by the Institute of Medicine May 2004," last published

in May 2005, finding that "there is no significant clinical evidence that humans

have adverse effects of immunotoxic, neurologic, respiratory or dermal

responses after exposure to mold other than allergic reactions and that, in the

clinical medical field, there is no known dose-response relationship between

a specific ambient concentration and any toxic human health effect."

The Extent to Which the Technique Relies Upon the Subjective Interpretation of the Expert

Appellants contend Campbell's underlying data for his diagnoses of mycotoxin-related illnesses in this case are: (1) a laboratory report based upon swab samples taken by

the company appellants hired for remediation of their home, (2) immunoassay tests for

mycotoxin antibodies conducted by Immunosciences Lab, Inc. ("ISL") and (3) his clinical

examination and neurophysiological testing of appellants. The report generated from the

remediation company fails to identify any particular species of mold, but concludes the home

has only the presence of "a black mold resembling Aspergillus niger" and a mold

"resembling Fusarium species[,]" and the report fails to quantify any mold found. Campbell

admitted under oath that the report did not actually identify which molds were present in

appellants' house or the amount present. As for the ISL immunoassay tests, the trial court

granted Conn Appliances' motion to exclude testimony or evidence based on these tests after

hearing Conn Appliances' evidence that there is no valid scientific basis for ISL's

immmunoassay tests as a diagnostic tool for mold-related health problems, and appellants

do not challenge that order on appeal. (4)

As for his clinical examination and neurophysiological testing of appellants, Campbell

chose to utilize his own methods instead of established diagnosing criteria. Campbell

acknowledged during his deposition that there is no specific criteria established for

diagnosing immune dysfunction. He also admitted that although there is a published standard

for diagnosing CIDP, he "use[s] basically [his] clinical judgment from the information [he

is] able to obtain." Conn Appliances attached to its motion an affidavit of Daniel Sudakin,

board certified in medical toxicology, public health, and general preventative medicine and

Assistant Professor of the Department of Environmental and Molecular Toxicology at

Oregon State University. In the affidavit, Sudakin states that when a physician uses clinical

laboratory tests to determine an individual's exposure to a chemical, the generally accepted

method is not to rely on immunoassay tests which do not measure mycotoxins at all, but to

directly measure that chemical in body fluids or tissues through techniques, such as

chromatography and mass spectrometry, to "directly detect and quantify the specific chemical

that is being investigated."

Appellants argue Campbell's testimony is objective because his examinations and

assessments (including myelin protein antibody testing, assessment of cranial nerves, bulk

muscle and power assessment, assessment of peripheral sensation, neurological gait

assessment, opthalmological assessment, and assessment of deep tendon reflexes) were

performed as appellants' treating physician and not in preparation for litigation. Appellants

also maintain Campbell's assessments were guided by data and information derived from his

own research and were ultimately published in peer-reviewed publications. Whether the Theory has Been Subjected to Peer Review and/or Publication and Whether

the Underlying Theory or Technique has been Generally Accepted as Valid by the

Relevant Scientific Community

In addition to the numerous documents Conn Appliances presented to the trial court

discrediting Campbell's diagnoses based on exposure to mold, Conn Appliance also attached

depositions of several physicians, including that of Dr. Timothy Lotze. Dr. Lotze is an

assistant professor of pediatrics and neurology at Baylor College of Medicine, clinical staff

member in the child neurology section at Texas Children's Hospital in Houston, and is board

certified in pediatrics and neurology. He testified that he found no peer-reviewed medical

articles associating Campbell's specific diagnoses of appellants with mold exposure.

Dr. William A. Fawcett also testified. He is a board certified allergist/immunologist,

former chair of the Asthma and Allergy Research Advisory Committee for the State of

Texas, former member of the education and research board of trustees of the American

Academy of Allergy, Asthma & Immunology, and former member of the grants and review

committee for the American Academy of Allergy, Asthma & Immunology. Dr. Fawcett

testified that from his review of molds and human illness that he has not seen any

neurological damage "in the typical exposure that human beings would have[.]"

Furthermore, when asked whether he has ever seen anyone with mold exposure have an

autoimmune disease that caused demyelination or attacking of myelin sheaths of neurons, he

answered, "I clearly have not seen it, nor have I seen any credible literature that would

suggest or indicate that."

Dr. Howard S. Derman, board certified neurologist and associate professor of

neurology at Cornell and the Neurologic Institute in Houston, testified in this case that

"there's no evidence whatsoever in the neurologic literature, no evidence, that mold causes

any problem with the peripheral nervous system or with the nervous system."

The trial court also heard evidence regarding the Texas Medical Board's 2006 second

amended complaint against Campbell. The charges brought by the Texas Medical Board are

based upon the same type of mold-related diagnoses as in this case and included these,

among numerous other, charges:

A. On each and every patient herein, [Campbell] has relied on junk science

to support his medical diagnosis and treatment of illnesses allegedly

attributable to mold exposure. [Campbell]'s reliance on junk science in

making medical diagnosis, treatment and decisions is below the

standard of care. [Campbell]'s position on mold exposure is contrary to

the nationally recognized positions of medical and health organizations

including, the Texas Medical Association (TMA), Center for Disease

Control (CDC), Environmental Protection Agency (EPA), and

American College of Occupational and Environmental Medicine

(ACOEM).

B. On each and every patient herein, [Campbell] made medically and

scientifically unsupported findings of "toxigenic mold exposure."

There is no scientific support, peer reviewed studies, or generally

accepted medical studies, literature or testing that has demonstrated a

causal connection between mold exposure and neurological and other

diseases as diagnosed by [Campbell].

Although Campbell has published his opinions in several peer-reviewed publications,

Conn Appliances argued that "Dr. Campbell and the other medico-legal players on the junk

science side of the 'toxic mold' docket have created a self-serving 'cottage industry' to

publish a number of articles regarding mold and their own novel theories on mold-related

illnesses." Conn Appliances argued that these publications were collected by another doctor

whose "mold theories" are also contested in the medical field. Moreover, Campbell admitted

that he knew of no epidemiological studies or blind studies that relate mold exposure to

CIDP, and that he knows of no controlled studies that relate mold exposure to CIDP, besides

those he and his associates have authored.

The Theory or Technique's Potential Rate of Error

Conn Appliances contends that Campbell's diagnoses of mold-related illnesses in this

case have a high potential rate of error because they are based on: (1) mold cultures that are

insufficient evidence of exposure or causation, (2) immunoassay tests that lack scientific

validity and are no evidence of mold or mycotoxin exposure or causation, and (3) his own

"clinical" evaluation as opposed to direct testing such as chromatography or mass

spectrometry on blood or urine samples to determine exposure to mycotoxins.

Appellants contend Campbell's review of the literature on health effects associated

with exposure to mycotoxins demonstrates that there is some belief within the scientific

community that exposure to mycotoxins can cause such illnesses as diagnosed by him in this

case. Appellants also argue that Conn Appliances' own evidence suggests that research is

still ongoing and that the authorities Conn Appliances relies on agree that there is insufficient

evidence to date on the causal connection.

The Theory or Technique's Non-Judicial Uses

Conn Appliances maintains that because the vast majority of the relevant medical and

scientific communities reject Campbell's theory that mold mycotoxins can cause

autoimmune/neuropathic disorders, the only remaining use for Campbell's theories is in the

medico-legal arena. Conn Appliances also states that to the extent that there are non-judicial

uses for "the diagnostic theories of Dr. Campbell and his 'associates,' such uses pale beside

the medico-legal uses to which Dr. Campbell has put them."

Our Review of the Trial Court's Order Excluding Campbell's Testimony

While appellants contend the trial court exclusively relied on "'general acceptance'

rather than [on] other pertinent [ Robinson ] factors, such as non-judicial uses and/or

publication of theories in peer review scientific texts and/or journals" in excluding

Campbell's testimony, we disagree. Based on our review of the evidence and the record,

Conn Appliances presented evidence for each of the factors, and the trial court's order stated

the factors it relied on in excluding Campbell's testimony. We also note appellants'

arguments that research is still ongoing as to the causal connection between indoor exposure

to mycotoxins and autoimmune/neurologic illnesses. While we "should not foreclose the

possibility that advances in science may require reevaluation of what 'good science' is in

future cases," we are required to look to what is generally accepted in the current scientific

community. Havner , 953 S.W.2d at 720-21 . We conclude that based on the evidence before

the trial court, the trial court did not abuse its discretion in finding Campbell's testimony

unreliable under Robinson and excluding his testimony. Issue one is overruled.

Summary Judgment

Conn Appliances moved for summary judgment on both no evidence and traditional

grounds. See Tex. R. Civ. P. 166a(c),(I). We review a no evidence summary judgment under

the same standard as a directed verdict. King Ranch, Inc. v. Chapman , 118 S.W.3d 742, 750-51 (Tex. 2003). Accordingly, we examine the record in the light most favorable to the non-movant, crediting evidence favorable to the non-movant if reasonable jurors could, and

disregarding contrary evidence unless reasonable jurors could not. See Mack Trucks, Inc. v.

Tamez , 206 S.W.3d 572, 582 (Tex. 2006). If the non-movant produces more than a scintilla

of probative evidence to raise a genuine issue of material fact, then summary judgment is

improper. Tex. R. Civ. P. 166a(I); King Ranch, Inc. , 118 S.W.3d at 751 . A party produces

more than a scintilla of evidence if the evidence allows reasonable and fair-minded people

to differ in their conclusions. 118 S.W.3d at 751 (citing Havner , 953 S.W.2d at 711 ). A

party produces less than a scintilla of evidence when the evidence is "so weak as to do no

more than create a mere surmise or suspicion" of fact. Id. (quoting Kindred v. Con/Chem,

Inc. , 650 S.W.2d 61, 63 (Tex. 1983)). When, as here, a trial court's order granting summary

judgment does not specify the grounds relied upon, we affirm the summary judgment if any

of the summary judgment grounds is meritorious. FM Props. Operating Co. v. City of

Austin , 22 S.W.3d 868, 872-73 (Tex. 2000).

Having held that the trial court properly excluded Campbell's testimony and

considering the trial court excluded any testimony and evidence related to ISL's

immunoassay tests, the appellants' only remaining offer of any proof of causation is the mold

culture report. Not only is the report no evidence that indoor exposure to mycotoxins cause

autoimmune/neurologic illnesses, but it also is no evidence of specific causation. See

Havner , 953 S.W.2d at 714-15 . The report fails to show that appellants were actually

exposed to any mycotoxins in their house, what specific molds they may have been exposed

to inside the house, and the levels of mold in the house. Finding no evidence of an essential

element of appellants' claim, we overrule appellants' second issue. The trial court's final

summary judgment order is affirmed.

AFFIRMED.

__________________________________

CHARLES KREGER

Justice

Submitted on May 8, 2007

Opinion Delivered September 6, 2007

Before McKeithen, C.J., Kreger and Horton, JJ.

1. Dr. Campbell testified in an earlier deposition that he is board-certified in family

practice and in forensic medicine, but admitted he is not a board-certified immunologist,

toxicologist, neurologist, epidemiologist, or a hematologist/oncologist.

2. At the hearing, Campbell's diagnoses of the appellants differed from his

diagnoses of the appellants in his prior deposition testimony. In his prior deposition, he

diagnosed Joseph, Joyce, and Audrey with three autoimmune/neuropathic disorders: (1)

chronic inflammatory demyelinating polyneuropathy (CIDP), (2) multifocal motor

neuropathy (MMN), and (3) paraproteinaemic demyelinating neuropathy (PDP). He

diagnosed Austen with an immune mechanism disorder called immune dysregulation and

Andrew with autoimmune disease, immune mechanism disorder, and mycosis.

3. When testimony is not scientific but involves technical or other specialized

knowledge, the Robinson factors may not apply. Gammill v. Jack Williams Chevrolet,

Inc. , 972 S.W.2d 713, 726 (Tex. 1998). Even under those circumstances, however, there

must be some basis for the opinion to show its reliability. Id . An expert's mere opinion

will not suffice. Merrell Dow Pharms., Inc. v. Havner , 953 S.W.2d 706, 711 (Tex.

1997). There cannot be "'too great an analytical gap between the data and the opinion

proffered.'" Gammill , 972 S.W.2d at 726 (quoting Gen. Elec. Co. v. Joiner , 522 U.S. 136,

146 , 118 S.Ct. 512 , 139 L.Ed.2d 508 (1997)).

4.

The trial court granted in a separate order Conn Appliances' motion to exclude

testimony or evidence based on the ISL immunoassay tests.