Moscicki v. Leno

• Decision Date: 06 March 2020
• Docket Number: No. 2019-0092,2019-0092
• Citation: 238 A.3d 1036,173 N.H. 121
• Parties: Sandra MOSCICKI v. Charles LENO & a. Matthew Leno & a. v. Sandra Moscicki & a.
• Court: New Hampshire Supreme Court

173 N.H. 121

238 A.3d 1036

Sandra MOSCICKI

v.Charles LENO & a.

Matthew Leno & a.

v.Sandra Moscicki & a.

No. 2019-0092

Supreme Court of New Hampshire.

Argued: November 19, 2019

Opinion Issued: March 6, 2020

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.

DONOVAN, J.

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, 982 A.2d 388 (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 expert must consider" in a toxic tort case, "and the failure to do so requires exclusion of the expert's opinion." We construe this interlocutory question as asking whether, as a matter of law, an expert opinion in toxic tort cases must be excluded when the expert does not consider a particular principle or methodology. See Murphy v. McQuade Realty, Inc., 122 N.H. 314, 316, 444 A.2d 530 (1982) (explaining that "the scope of review on an interlocutory appeal is necessarily narrow"). Because the statute and our case law governing expert testimony require courts to determine admissibility on a case-by-case basis, we decline to adopt a bright-line rule as to admissibility of expert testimony in toxic tort cases, and, therefore, answer in the negative. See RSA 516:29-a (2007); N.H. R. Ev. 702.

New Hampshire Rule of Evidence 702 authorizes the trial court to admit expert witness testimony. See N.H. R. Ev. 702. To be admissible, however, expert testimony must cross a threshold of reliability. Stachulski v. Apple New England, LLC, 171 N.H. 158, 163, 191 A.3d 1231 (2018). To determine the reliability of expert testimony, the trial court must apply RSA 516:29-a, portions of which codify principles outlined by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-95, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Id. ; see also Baker Valley Lumber v. Ingersoll-Rand, 148 N.H. 609, 614-16, 813 A.2d 409 (2002) (applying the Daubert framework to evaluate the reliability of expert testimony under Rule 702 ). RSA 516:29-a provides:

I. A witness shall not be allowed to offer expert testimony unless the court finds:

(a) Such testimony is based upon sufficient facts or data;

(b) Such testimony is the product of reliable principles and methods; and

(c) The witness has applied the principles and methods reliably to the facts of the case.

II. (a) In evaluating the basis for proffered expert testimony, the court shall consider, if appropriate to the circumstances, whether the expert's opinions were supported by theories or techniques that:

(1) Have been or can be tested;

(2) Have been subjected to peer review and publication; (3) Have a known or potential rate of error; and

(4) Are generally accepted in the appropriate scientific literature.

(b) In making its findings, the court may consider other factors specific to the proffered testimony.

When applying these factors, the trial court "functions only as a gatekeeper, ensuring a methodology's reliability before permitting the fact-finder to determine the weight and credibility to be afforded an expert's testimony." Stachulski, 171 N.H. at 164, 191 A.3d 1231 (quotation omitted). We, in turn, review the trial court's gatekeeping decisions to determine whether its exercise of discretion is sustainable. Id. Although the proponent of expert testimony bears the burden of proving its admissibility, the burden is not especially onerous because " ‘Rule 702 has been interpreted liberally in favor of the admission of expert testimony.’ " Id. (quoting Levin v. Dalva Bros., Inc., 459 F.3d 68, 78 (1st Cir. 2006) ). Indeed, the overall purpose of Rule 702 and RSA 516:29-a is to ensure that a fact-finder is presented with reliable and relevant evidence, not flawless evidence. Osman v. Lin, 169 N.H. 329, 335, 147 A.3d 864 (2016). Thus, as long as an expert's scientific testimony rests upon reliable grounds, it should be tested by the adversary process, rather than excluded from jurors' scrutiny for fear that they will not grasp its complexities or satisfactorily weigh its inadequacies. Stachulski, 171 N.H. at 164, 191 A.3d 1231.

Moscicki...