235 So. 3d 1087
La.2018Background
- In July 2010 Foris Pest Management applied Termidor-SC (containing fipronil) by drilling through a concrete slab and injecting termiticide under the Freeman home; plaintiffs later reported headaches, nausea, dizziness, and confusion.
- The Freemans sued Foris and its insurer for personal injuries and property damages allegedly caused by fipronil exposure.
- Plaintiffs retained four experts: Dr. Robert Geller (medical toxicologist), Dr. Lawrence Guzzardi (medical toxicologist), Dr. Jason Richardson (toxicologist), and Laurence Durio (certified industrial hygienist).
- Foris filed Daubert/C.E. art. 702 motions to exclude those experts and a motion for summary judgment; the district court granted exclusion after a Daubert hearing and then granted summary judgment; the court of appeal affirmed.
- The Louisiana Supreme Court granted writs in part, holding the lower courts erred in excluding the experts and in granting summary judgment, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of expert testimony under La. C.E. art. 702/Daubert | Geller, Guzzardi, Richardson, Durio used reliable methodologies (including qualitative exposure assessment) to opine causation | Experts lacked fipronil-specific publications, dose reconstruction, and biological/air data proving exposure; opinions unreliable | Court: Exclusion was error — focus was on conclusions not methodology; plaintiffs met burden to show methodologies were sufficient to survive exclusion at pleading stage |
| Requirement of peer-reviewed publications or fipronil-specific authorship | Not required; methodology may be peer-reviewed even if expert did not publish on fipronil | Argued lack of peer-reviewed work on fipronil undermines reliability | Court: Daubert does not require authorship of peer-reviewed fipronil articles; district court erred by treating that as dispositive |
| Need for quantitative dose reconstruction or biologic/air data to prove exposure | Causation may be shown qualitatively; quantitative reconstruction not mandatory | Plaintiffs failed to provide quantitative exposure or biological evidence, so causation unsupported | Court: Plaintiffs may prove exposure and causation qualitatively; exclusion for lack of quantitative data was erroneous |
| Conflicting expert testimony and its effect on admissibility | Disagreements go to weight and credibility, not admissibility | Conflicts among experts (routes of exposure, effects) render opinions unreliable and inadmissible | Court: Conflicts are credibility issues for the jury; not proper basis to exclude under Daubert/C.E. art. 702 |
Key Cases Cited
- Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (establishes admissibility standard focused on methodology reliability)
- Cheairs v. DOTD, 861 So.2d 536 (La. 2003) (Louisiana application of Daubert standard for expert testimony)
- Arabie v. CITGO Petroleum Corp., 89 So.3d 307 (La. 2012) (qualitative exposure assessments can support causation)