Appeals Court ruling keeps 'junk science' testimony out of lawsuit

David Yates Sep. 12, 2007, 11:21am

Justices on the Ninth Court of Appeals released an opinion on Sept. 6 banning the so-called "junk science" testimony of Dr. Andrew Campbell. Campbell theorized a local family's illness resulted from molds in their home, diagnosing them with indoor exposure to mycotoxins.

When the Gaudette family became ill, they sought treatment from Dr. Campbell. The family alleged a refrigerator "negligently installed by Conn's Appliances" was the culprit "infesting" them with fungi.

In 2001, Joseph and Joyce Gaudette, along with their three children, sued Conn's Appliances, Inc. for harm to their pulmonary, nervous, immune and digestive systems from toxic mold and fungi that resulted from the Conn's refrigerator.

The suit was assigned to Jefferson County Judge Donald Floyd, 172nd Judicial District.

The defendant filed a motion to exclude Dr. Campbell's testimony as an expert witness under Rule 702 of the Texas Rules of Evidence. Floyd granted the motion.

Conn's then filed a traditional and no-evidence motion for summary judgment.

The plaintiffs appealed the trial court's orders excluding Campbell's testimony and granting final summary judgment, but the justices on the appeals court affirmed Floyd's decision.

At the hearing on the motion to exclude Campbell's testimony, the doctor testified he began treating the Gaudettes in 2001 for complaints of headaches, memory loss, sleep disturbance, fatigue, and infections, the opinion stated.

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, and her daughter with chronic inflammatory demyelinating polyneuropathy.

"He did not prove any specific diagnoses for (the other family members) but stated that their immune systems were 'off,'" the opinion stated. "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."

The trial court's order excluding Dr. Campbell's testimony concluded that his theories, opinions, and analysis had not been sufficiently tested, and that his conclusions were subjective in nature.

"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," the justices' opinion stated.

In the motion to dismiss Campbell's testimony, Conn's lawyers referred to the doctor's theories as "junk science."

In addition to the numerous documents Conn's Appliances presented to the trial court discrediting Campbell's diagnoses based on exposure to mold, the defendant also attached depositions of several physicians, including that of Dr. Timothy Lotze, a physician board certified in pediatrics and neurology, an assistant professor of pediatrics and neurology at Baylor College of Medicine and clinical staff member in the child neurology section at Texas Children's Hospital in Houston.

"He testified that he found no peer-reviewed medical articles associating Campbell's specific diagnoses of appellants with mold exposure," the opinion stated.

Justices also noted the 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," the suit said. "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."

172nd Case No. E-166-259
9th Court of Appeals Case No. 09-06-444 CV

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