CIVIL LITIGATION

Sam Harkinson
Previously employed as an Assistant County Attorney, and as an insurance adjuster, now as an associate at Hoefle, Phoenix, Gormley & Roberts

No. 2019-0092
March 6, 2020

Interlocutory Appeal Question Answered in the Negative and Remanded

  • Whether an expert in a toxic tort matter is required to consider the “dose- response relationship” in reaching an opinion on

After noting developmental issues with their twin children, the Lenos moved out of an apartment that they had been renting from Ms. Sandra Moscicki (“Moscicki”) in July, 2010. Soon thereafter, Moscicki brought action against the Lenos for unpaid rent and the Lenos counterclaimed against Moscicki, alleging that their children had suffered harm from lead exposure from the apartment rented from Moscicki.

In preparing for their case, the Lenos retained a psychologist to perform a neuropsychological examination on their children. The test indicated that the Lenos’ son tested at “the lowest score that one could achieve” on the Reynolds Intellectual Assessment Scales. The psychologist opined that his opinion on the cause of the son’s deficits by stating, “It is more likely than not that the lead exposure is a substantial factor to [his] deficits.” The Lenos also retained a medical doctor trained in pediatrics to issue a report on the Lenos’ children. The pediatrician discussed the general consequences of low levels of lead exposure to children’s development. In addressing the Lenos’ son’s developmental deficits, the pediatrician, relying on the report from the psychologist, concluded with a degree of medical certainty that the son had been exposed to lead and had experienced lead poisoning at a young age, at high levels and over a sustained period of time.

Prior to trial, Moscicki moved to exclude the testimony of the psychologist and pediatrician as to the impact of the lead exposure and any effect it may have had on the Lenos’ son’s development. Moscicki argued that both doctors’ conclusions were unsupported by the prevailing medical literature in failing to address the dose-response relationship. Moscicki’s contention was that the dose-response relationship did not support the conclusions of either doctor. The Trial Court held an evidentiary hearing at which both doctors testified in addition to Moscicki’s experts. The Trial Court ultimately concluded that the doctors would be allowed to testify to their conclusions and Moscicki took an interlocutory appeal on the issue. The Trial Court certified the question of whether in the State of New Hampshire, 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.

In declining to adopt a bright-line rule, the Court specifically relied on New Hampshire Statute and the Rules of Evidence. Specifically, the Court looked to New Hampshire Rule of Evidence 702, but also noted that in order to be admitted, expert testimony was required to meet a threshold issue of reliability, which can be found at NH RSA 516:29-a. The Court noted that the New Hampshire Statute codified the principles that can be found in the Daubert case. When the Court applied the Rule and Statute, the Court concluded that as long as an expert’s methods and conclusions were able to pass the threshold test, the issue of weight of the evidence should be left to the adversarial process. The Court specifically noted that the current principles require a Trial Court to determine whether the proffered testimony is based on generally accepted techniques and theories and does not require a Court to exclude testimony where the testimony is not supported by the theory or technique that has the most acceptance.

In conclusion, the Court provided that it should be left to the Trial Court to determine whether an expert’s exclusion of the dose-response relationship would have an effect on the reliability of an expert’s principle methods.

Gary M. Burt and Brendan D. O’Brien of Primmer, Piper, Eggleston & Cramer, PC, Mr. O’Brien on the Brief and Mr. Burt Orally, for the Appellant. Christopher J. Seufert of Seufert Law Offices, P.A. for the Appellees.