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By William A. Ruskin
In an Opinion and Order, dated May 31, 2013, the Hon. Sandra J. Feuerstein granted summary judgment to a defendant pesticide manufacturer after determining that plaintiff''s expert failed to meet the reliability requirements of Rule 702 and Daubert, in Mallozzi v. EcoSMART Technologies, Inc., E.D.N.Y., no. 11-cv-02884, 5/31/13 [enhanced opinion available to lexis.com subscribers].
Defending toxic tort claims against pesticide manufacturers is always challenging because pesticides, by their very nature, are designed to cause injury and death to pests. Plaintiff's counsel is only too willing to permit the jury to infer that a pesticide product that can be harmful to bugs can also be injurious to humans. Therefore, if a defendant pesticide manufacturer can subject plaintiff's expert to Daubert scrutiny prior to trial, it may be possible to dispose of scientifically suspect cases before they reach trial.
In Mallozzi, plaintiff claimed that he developed severe gastroesophageal reflux disease ("GERD") and laryngopharyngeal reflux ("LPR") as a result of an inhalatory exposure to EcoSmart Organic Home Pest Control, which contains 1% peppermint oil.
However, it was not until plaintiff returned from dinner at an Italian restaurant the night of the alleged pesticide exposure that he experienced nausea, a racing heartbeat and burning in his stomach and chest. Plaintiff obtained the expert opinion of Dr. Barry S. Levy, an occupational and environmental health physician and epidemiologist, that his exposure to peppermint oil caused his LPR by relaxing his lower esophageal sphincter.
In its motion for summary judgment, the defendant argued that Dr. Levy's testimony was unreliable and did not meet the Daubert standard primarily because Dr. Levy was unable to establish the amount of peppermint oil inhaled.
The articles that Dr. Levy relied upon discussed ingestion of peppermint oil rather than inhalation, which was the case here. Moreover, none of the articles relied upon by Dr. Levy addressed whether inhalation of a substance containing 1% peppermint oil, over the course of a matter of minutes, could relax the lower esophageal sphincter or cause LPR.
In part, defendant's motion was successful because defendant's counsel laid the groundwork for the motion by obtaining helpful testimony from plaintiff's expert in deposition. During Dr. Levy's deposition, defendant's counsel elicited testimony that none of the scientific articles relied upon by Dr. Levy involved inhalation of peppermint oil.
In addition to establishing a strong record in deposition, defendant's counsel was also able to raise issues concerning the cause of plaintiff's illness by obtaining a detailed medical history of plaintiff. The court rejected Dr. Levy's reliance on the temporal proximity between plaintiff's exposure to the product and the onset of plaintiff's symptoms. In particular, the court observed that plaintiff began experiencing reflux hours after having a heavy meal of "spaghetti with seafood."
Indeed, plaintiff had been hospitalized in 2001 for esophageal reflux after eating a donut and drinking coffee. On another occasion, he had experienced reflux prior to April 2010 when he had apparently overindulged on linguini with clam sauce. This prior medical history no doubt predisposed the court to believing plaintiff's causation claim was suspect. The court found that Dr. Levy had "failed to justify his conclusion that reflux specifically caused by inhalation of the product caused plaintiff's LPR and not reflux caused by plaintiff's persistent GERD, both before and after April 19, 2010."
For more cutting edge commentary on developing issues, visit Toxic Tort Litigation Blog by William A. Ruskin of Epstein Becker & Green.
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