Moscicki v. Leno, 030620 NHSC, 2019-0092
|Opinion Judge:||DONOVAN, J.|
|Party Name:||SANDRA MOSCICKI v. CHARLES LENO & a. MATTHEW LENO & a. v. SANDRA MOSCICKI & a.|
|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|
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.
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...
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