Metropolitan News-Enterprise


Tuesday, October 17, 2023


Page 1


Court of Appeal:

Judge Erroneously Relied on 2006 Opinion in Barring Expert Testimony on Effects of Mold

Gilbert Says Circumstances Not Identical, More Recent Studies Now Available


By a MetNews Staff Writer


Div. Six of the Court of Appeal for this district yesterday declared that a judge erred in barring expert testimony that a woman’s maladies were caused by exposure to toxic mold in the apartment she had occupied, rejecting the judge’s premise that a 2006 decision by that division mandated exclusion of the evidence.

Reliance on the 2006 case was misplaced, Presiding Justice Arthur Gilbert said, declaring:

“Here we decide an expert is qualified to render an opinion on whether a person’s exposure to toxic mold is harmful.”

Gilbert had concurred in the 2006 decision in Geffcken v. D’Andrea. That opinion was authored by Justice Kenneth Yegan who did not participate in yesterday’s ruling.

Joining Gilbert were Justices Hernaldo J. Baltodano and Tari L. Cody.

Motions in Limine

In both Geffcken and the case at bar, expert testimony as to mold having caused disease was excluded by way of the granting of motions in limine. In the present case, Santa Barbara Superior Court Judge Timothy J. Staffel granted a motion to exclude the testimony of Ronald A. Simon, a medical doctor and researcher, without which the plaintiff, Dana Brancati, was unable to proceed, resulting in the dismissal.

Explaining the decision in Geffcken, Gilbert said:

“There we held two scientific tests to link mold to illness had not achieved scientific acceptance, and an expert was not qualified to testify about a causal link between, among other things, mold and lung cancer. We noted that the plaintiffs’ theory was not supported by a single peer-reviewed scientific reference and that the test results to prove causation were unreliable. There was no forensic investigation, there were chain of custody errors that invalidated the integrity of the sampling results, and samples had been inaccurately transposed. We also said our decision was fact specific and ‘[did] not constitute precedent for the exclusion’ of evidence ‘under materially different factual scenarios….’ ”

Differences Noted

He continued:

“Brancati does not rely on the testing or theories mentioned in Geffcken and she does not claim mold causes cancer. The trial court’s reliance on Geffcken was misplaced. Our decision was not intended to prevent medical doctors who examine their patients, as here, from performing a differential diagnosis to determine and opine on the cause of the patient’s illness. Moreover, as Brancati notes, there have been new scientific studies about mold that were not in existence in 2006 when we decided Geffcken.”

The case is Brancati v. Cachuma Village, LLC, 2023 S.O.S. 3772.


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