Michael, a minor, through his mother and guardian, Mary, sued Andy’s Termite and Pest Control Inc. for use of “Dursban” pesticide while spraying his residence. Allegedly, the spraying might have caused Michael’s autism because his mother was pregnant at the time.

Shortly after the spraying, Mary gave birth to Michael. He suffers from “chronic static encephalopathy,” brain damage, cognitive impairment (IQ of 70-75), speech disorder and learning disabilities.

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In support of the theory that household spraying by the pest control company with Dursban caused Michael’s autism, expert testimony was offered by several toxicologists and medical doctors. The U.S. Environmental Protection Agency (EPA) prohibits human experimentation so animal studies were the scientific basis for its banning residential applications of Dursban in June 2000, but after Michael’s birth.

The attorney representing Andy’s Termite and Pest Control Inc. objected to presenting the evidence offered by Michael’s experts that the household spraying of Dursban, which was not prohibited by the EPA before Michael’s birth, could have caused his brain damage.

If you were the judge would you allow evidence to be presented that the household spraying of Dursban, which was not a prohibited pesticide at the time, might have caused Michael’s autism?

The judge said yes!

Expert medical testimony should be admitted in a trial for the jury to decide if it is credible, the judge began. Based on the credentials of the expert witnesses, he continued, the jury should be allowed to accept or reject their testimony that the pesticide could have caused Michael’s autism.

The testimony offered by plaintiff’s experts in this case both had the tendency in reason to prove causation, and was based on studies and protocol of a type that reasonably may be relied upon by a medical expert witness, the judge explained. Therefore, the expert testimony should be admitted, he ruled.

Based on the 2004 California Court of Appeal decision in Roberti v. Andy’s Termite and Pest Control Inc., 6 Cal.Rptr.3d 827.

(For more information on Bob Bruss publications, visit his
Real Estate Center
).

***

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