Moscicki v. Leno, 030620 NHSC, 2019-0092

Docket Nº:2019-0092
Opinion Judge:DONOVAN, J.
Attorney:Primmer Piper Eggleston & Cramer PC, of Manchester (Gary M. Burt and Brendan D. O'Brien on the brief, and Mr. Burt orally), for the appellant. Seufert Law Offices, P.A., of Franklin (Christopher J. Seufert on the brief and orally), for the appellees.
Judge Panel:HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred.
Case Date:March 06, 2020
Court:Supreme Court of New Hampshire







No. 2019-0092

Supreme Court of New Hampshire, Grafton

March 6, 2020

Argued: November 19, 2019

Primmer Piper Eggleston & Cramer PC, of Manchester (Gary M. Burt and Brendan D. O'Brien on the brief, and Mr. Burt orally), for the appellant.

Seufert Law Offices, P.A., of Franklin (Christopher J. Seufert on the brief and orally), for the appellees.


In this interlocutory appeal, see Sup. Ct. R. 8, Sandra Moscicki appeals an order of the Superior Court (MacLeod, J.) denying her motion to exclude expert testimony proffered by the appellees, Charles and Heidi Leno. The interlocutory question transferred to us asks us to determine whether, for an expert opinion on causation to be admissible in a toxic tort case, the expert must consider the "dose-response relationship" in reaching that opinion. We answer in the negative and remand.

I. Facts

We accept the statement of the case and facts as presented in the interlocutory appeal statement and rely upon the record for additional facts as necessary. See State v. Hess Corp., 159 N.H. 256, 258 (2009). In July 2008, the Lenos' twin children, a boy and a girl, were born. In September 2009, the Lenos and their children moved into an apartment owned by Moscicki's trust. Shortly thereafter, when the children were approximately eighteen months old, Heidi Leno "expressed concerns" regarding their son's "speech and development." Charles Leno had also observed that their son exhibited "significant developmental problems in the months before his eighteen-month checkup."

On October 21, 2009, both children were tested for lead. The test revealed that the son had elevated blood lead levels (EBLLs) of 4.6 micrograms per deciliter (μg/dl) and the daughter had EBLLs of 3.7 μg/dl. The children were again tested for lead on July 29, 2010, shortly after their second birthday. This test revealed that the son had EBLLs of 17 μg/dl and the daughter had EBLLs of 19 μg/dl. Thereafter, the Lenos and their children moved out of Moscicki's apartment.

Moscicki brought an action against the Lenos, seeking unpaid rent. The Lenos then filed an action against Moscicki, alleging that their children suffered harm as a result of lead exposure while living in the apartment. The trial court consolidated these actions.

The Lenos retained Dr. Peter Isquith, a psychologist, to perform a neuropsychological assessment of the children and issue reports pursuant to RSA 516:29-b (Supp. 2019). When assessing the son, Isquith administered the Reynolds Intellectual Assessment Scales (RIAS) and determined, based upon the son's performance, that he had a full scale IQ score of 40, "the lowest score that one could achieve" under the RIAS test. Other tests revealed that the son had "global deficits in cognition and communication complicated by deficits in motor planning and sequencing, the ability to adjust to change, self-regulation, and anxiety." Isquith also observed that the son's academic skills were "very limited." At the end of his report, Isquith discussed his opinion on the cause of the son's deficits, stating: "It is more likely than not that the lead exposure is a substantial contributing factor to [his] deficits."

Dr. Robert Karp, a medical doctor trained in pediatrics, also issued a report on the Lenos' children. Karp's report discussed, generally, the known consequences of low levels of lead exposure on children's development. He noted that studies show that "neurodevelopmental delays can occur" with EBLLs as low as 5 μg/dl. He also noted the son's specific levels of lead exposure and Isquith's conclusions regarding the son's developmental deficits. Based upon this information, Karp concluded: In my opinion, to a reasonable degree of medical certainty, [the son] was exposed to lead, experienced lead poisoning at a young age, at high levels, and over a sustained period of time. As documented by the IEP team and Dr. Isquith, the consequences of lead poisoning are readily apparent. These are certain to affect his achievement of his full potential for employment or life satisfaction.

Moscicki moved in limine to exclude the testimony of Isquith and Karp as to "the impact of lead exposure on [the son]'s neurological development," asserting that their conclusions "are unsupported by the prevailing medical literature" on the dose-response relationship, and are therefore unreliable. See RSA 516:29-a, I(b) (2007); David L. Eaton, Scientific Judgment and Toxic Torts - A Primer in Toxicology for Judges and Lawyers, 12 J.L. & Pol'y 5, 11, 15 (2003) ("The 'dose-response' in a given individual describes the relationship between the magnitude or severity of the effect(s)" and the "amount of chemical that enters the body."). She contended that "the literature indicates that [EBLLs] of 17 μg/dl are associated with a loss of approximately five to ten IQ points, whereas [the son]'s IQ of 40, as reported by Dr. Isquith, represented a substantially higher decrement of sixty points below the mean IQ of 100." Therefore, she argued, the experts' opinions lacked support "for the conclusion that [EBLLs] of 17 μg/dl can result in a drop of 60 points."

The trial court held a three-day evidentiary hearing on Moscicki's motion, in which it heard testimony from Isquith, Karp, and two experts called by Moscicki. Following the hearing, the trial court concluded that Isquith's and Karp's opinions were admissible. Moscicki filed a motion to reconsider, which the trial court denied. This interlocutory appeal followed.

II. Analysis

The superior court transferred the following question for our consideration: Whether in this jurisdiction in a toxic tort case the dose-response relationship for the toxin at issue as recognized in the scientific literature is an inherent or implicit and necessary component of the methodology that an expert witness must consider and/or include in his or her opinion as a condition or prerequisite for admissibility at trial under RSA 516:29-a, and, if not considered or included, must the expert's testimony be excluded where the expert's opinion is otherwise based on reliable data and methodology.

Moscicki argues that we must answer in the affirmative because "[t]he dose-response relationship is a necessary component that the...

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