MICHAEL ROBERTI MARY ROBERTI v. ANDY TERMITE PEST CONTROL INC

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Court of Appeal, Second District, California.

MICHAEL ROBERTI, a Minor, by and through his Guardian ad Litem, MARY ROBERTI, Plaintiff and Appellant, v. ANDY'S TERMITE & PEST CONTROL, INC., Defendant and Respondent.

B201438

Decided: February 23, 2011

Robins, Kaplan, Miller & Ciresi, David Martinez and Steven D. Archer for Plaintiff and Appellant. Charlston, Revich & Wollitz and Alan H. Lazar for Defendant and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

introduction

Plaintiff Michael Roberti (through his mother as guardian ad litem) sued defendant Andy's Termite and Pest Control, Inc., alleging that he suffered brain damage caused by in utero exposure to the pesticide chlorpyrifos (marketed as Dursban), which defendant applied at his home.   In a previous appeal, we reversed a judgment of dismissal entered by the trial court, which had ruled that plaintiff's expert witness testimony was inadmissible under the test set forth in People v. Kelly (1976) 17 Cal.3d 24.   We concluded that the expert medical opinion involved here is not subject to the Kelly test.   (Roberti v. Andy's Termite & Pest Control, Inc. (2003) 113 Cal.App.4th 893.)   On remand, the matter was tried by a jury and resulted in a defense verdict.

Plaintiff appeals from the judgment in favor of defendant, contending that the trial court committed evidentiary error by (1) permitting a defense expert to testify concerning the hearsay opinions of anonymous experts that those experts and the relevant scientific community disagreed with plaintiff's causation experts;  (2) precluding plaintiff's counsel from cross-examining a defense expert based upon statements made in the opinion filed by this court in the prior appeal;  and (3) permitting a defense expert to speculate that plaintiff's condition could have an unknown genetic cause.   We conclude that no evidentiary error occurred and no prejudice.

Plaintiff also contends that the trial court erred in awarding costs to defendant.   He asserts that the entirety of defendant's memorandum of costs was unreliable and should have been stricken, that defendant's pretrial offer of compromise was patently unreasonable and therefore should not have given rise to an award of expert witness fees, that fees should not have been awarded for experts who did not testify at trial, and that other specific cost items were improperly awarded.   We find no abuse of discretion in the trial court's cost award, and affirm the judgment.

factual and procedural background

1. Plaintiff's Claims

Plaintiff's operative second amended complaint alleged causes of action for negligence, strict liability, breach of implied warranty, breach of express warranty, and negligent misrepresentation.   The theory underlying these claims was that defendant used inappropriate methods to apply chlorpyrifos in the subarea of his home.   According to plaintiff, his mother ingested the pesticide while she was pregnant with him, and this exposure caused plaintiff to suffer neurological, cognitive, and developmental injuries.

2. Plaintiff's Trial Evidence

Defendant's employees applied chlorpyrifos solution in the subarea of plaintiff's home in 1989 and 1991.   Plaintiff presented evidence to the effect that because the chlorpyrifos was not adequately covered with untreated soil, it was in the topsoil and able to escape into the surrounding air.   Tests conducted in 1998 revealed chlorpyrifos in and on the topsoil in the subarea of the home.

In 1992, plaintiff's mother had entered the subarea about twice per week for 10 minutes each time.   In January 1993, plaintiff's mother learned she was pregnant, and stopped going into the subarea.   Plaintiff was born in August 1993.

In 2000 the Environmental Protection Agency (EPA) and signatories registered to manufacture and use products containing chlorpyrifos entered into a memorandum of agreement to the effect that chlorpyrifos would no longer be used in residential applications.

Plaintiff introduced expert testimony to prove that he suffers from “chronic static encephalopathy,” brain damage, cognitive impairment (IQ of 70-75, in the borderline retarded range), and learning disabilities which include developmental language disorder/delay and a speech disorder.   As here relevant, Dr. Ronald Gabriel, plaintiff's treating pediatric neurologist, testified that plaintiff suffered from mild central and cortical atrophy of the brain, consistent with the diagnosis of “chronic static encephalopathy.”   The known causes of this condition include complications of labor and delivery, chromosomal defects, maternal vaccinations, traumatic injuries during pregnancy, and in utero toxic exposure.   Dr. Gabriel performed a differential diagnosis that ruled out all of the possible recognized causes of Michael's condition other than his in utero toxic exposure.   He concluded that plaintiff's brain atrophy was secondary to his prenatal exposure to chlorpyrifos.

Similarly, Dr. Edward Ritvo, an expert in child psychiatry, mental retardation, and autism, testified that plaintiff does not suffer from autism, but from chronic static encephalopathy, which manifests as “pervasive developmental disorder,” secondary to his in utero exposure to chlorpyrifos.

Jack Thrasher, Ph.D., an environmental toxicologist and immunotoxicologist, testified that a fetus is exposed to chlorpyrifos when its mother inhales it, and there is no detoxification by the mother's organs.   It travels through the uterine arteries and crosses the placenta into the fetus.   He calculated that plaintiff's mother was exposed to a chlorpyrifos dose of .02 micrograms per kilogram each time she entered the subarea of her home during the first trimester of her pregnancy, and opined that this dose was sufficient to cause plaintiff's brain injury.

Plaintiff's showing of causation depended primarily on the testimony of Dr. Mohamed Abou-Donia, an agricultural chemist, pharmacologist and pesticide toxicologist, who teaches toxicology, pharmacology, cell biology, and neurobiology at Duke University, and has studied chlorpyrifos and similar organophosphate compounds for over 30 years.   He has published numerous books and articles on the subject, and has conducted studies using animals as test subjects.

Dr. Abou-Donia testified that chlorpyrifos is inherently dangerous because it is by design a neurotoxin.   It is a cholinesterase inhibitor that, in certain amounts, causes symptoms of acetylcholine toxicity.   Organophosphates such as chlorpyrifos interfere with fetal brain development, causing irreparable neuronal cell death and brain atrophy.   A developing fetal brain is highly susceptible to exposure to toxins during the first trimester of pregnancy, and therefore doses that are insufficient to cause any maternal symptoms can still cause permanent fetal harm.   Dr. Abou-Donia testified that the dose received by plaintiff's mother on each of her visits to the subarea of her home was 1,580 times the safe level of exposure.   Even using the dose calculated by the defense of .0021 mcg/kg per visit, the exposure was 158 times the safe level inhalation dose.

His review of the EPA literature indicated that experimental animal and human data confirmed that a fetus is especially vulnerable to the toxic effects of pesticides such as chlorpyrifos.   In his opinion, the peer-reviewed scientific literature confirmed that low dose exposure to chlorpyrifos, at doses that were not high enough to cause symptoms in the mother, could cause injury to a fetus.   He said the EPA had relied on that information when it prohibited residential use of chlorpyrifos, as well as many agricultural uses.   Dr. Abou-Donia said that the EPA routinely relies on data from animal studies to establish safeguards and regulations for humans because it is not possible to test potentially toxic substances on humans.   Asked if the EPA had ever found that chlorpyrifos caused injury to fetuses, Dr. Abou-Donia said that one of the reasons the EPA decided to restrict its use in agriculture and prohibit its use in homes was because children were being injured by it.   He pointed to one published study in which chlorpyrifos was sprayed in the interior of homes for pest control purposes, and children exposed to it (including in utero exposure) were found to perform badly on tests of behavior, memory, and school performance.   The higher a child's blood level of chlorpyrifos, the worse the child did.

Dr. Abou-Donia opined that low dose domestic applications of chlorpyrifos were causally connected to findings of pervasive developmental disorder and attention deficit disorder in children.   Based on all of the information available to him, including Dr. Gabriel's diagnosis of chronic static encephalopathy, he concluded that each single in utero exposure to chlorpyrifos was sufficient to cause plaintiff's injuries.

3. Defense Evidence

Defendant's owner, Andrew Santonello, testified that chlorpyrifos degrades quickly when exposed to light and air, but remains active as a barrier to termites for long periods of time if buried in soil.

Dr. Ira Lott, a neurologist, testified that plaintiff does not suffer from brain damage, his CT scan appears normal, and he shows no sign of brain atrophy.   Dr. Lott examined plaintiff in 2001 and opined that he was autistic.   However, when he examined plaintiff again in 2005, he concluded that plaintiff showed no neurological signs of autism and had no impairments, although his information was limited by the fact that plaintiff's mother was not present at the examination to allow Dr. Lott to take an updated history from her.

Dr. Lott testified that an illustration used by plaintiff's expert, Dr. Gabriel, to demonstrate the brain atrophy he observed in plaintiff's CT scan, was a false depiction of the actual CT scan.   According to Dr. Lott, the scan showed no cortical atrophy, no abnormality in the ventricles, and no abnormality or brain damage of any kind.

Dr. Gideon Koren, a maternal-fetal toxicologist specializing in “teratology” (toxicology as related to pregnancy and children) questioned the validity of the opinions offered on causation by plaintiff's experts, especially Dr. Abou-Donia's reliance on animal studies.   As part of the basis for his testimony, Dr. Koren referred to his work with Motherisk, an organization he founded in Canada in 1985.   Through Motherisk, which relies on the services of 70 or more individuals with various areas of specialization, he and his colleagues provide consultations to pediatricians, obstetricians, and other professionals, as well as to the general public, regarding how toxic exposure in a pregnant mother can affect the fetus.

Dr. Koren stressed that the dose of any substance to which a pregnant woman is exposed is critical in determining the likelihood of the substance acting as a teratogen.   Indeed, 95 percent of all compounds in a mother's blood cross the placenta into the fetus, but cause no harm unless the concentration is “huge.”   He found no proof that residential use of chlorpyrifos in the soil causes birth defects or impairment of brain development in humans.   He also testified that there is no scientific literature citing evidence that autism is caused by chlorpyrifos.   Further, as we discuss in more detail below concerning plaintiff's evidentiary contentions, he repeatedly refuted the probative value of using qualitative extrapolation from animal research to prove causation in humans of brain disorders such as plaintiff's.   He stated that human epidemiological evidence would be needed, and none existed.

The Verdict

The jury returned a verdict finding that defendant's conduct was not a substantial factor in causing harm to plaintiff.   Among other specific findings, the jury found that plaintiff's harm was not the kind of harm that would be anticipated as a result of the risk created by pesticide application, that defendant did not fail to exercise extreme caution in selecting or applying chlorpyrifos in the subarea of plaintiff's home, that the chlorpyrifos-containing Dursban performed as safely as an ordinary consumer would have expected, that Dursban's design was not a substantial factor in causing harm to plaintiff, and that while Dursban had potential risks that were known or knowable in the scientific and medical community at the time of the application, the potential risks did not present a substantial danger to plaintiff.

The trial court entered judgment in favor of defendant.   Thereafter, plaintiff filed a motion for a new trial, which the trial court denied.

After defendant filed a memorandum of costs, plaintiff filed a motion to tax costs, which the trial court granted in part and denied in part.

This timely appeal followed.

discussion

I. The Opinion in the Prior Appeal

As mentioned, this is the second time this matter is before us.   In the prior appeal, we considered whether the trial court erred in granting defendant's motion in limine to prevent plaintiff from introducing the opinions of his expert witnesses to the effect that plaintiff's medical condition 1 was caused by exposure to chlorpyrifos, because their opinions were based on novel methodologies of scientific proof unsupported by peer-reviewed scientific literature;  in other words, because their opinions did not meet the admissibility test set forth in People v. Kelly, supra, 17 Cal.3d 24.   (Roberti v. Andy's Termite & Pest Control, Inc., supra, 113 Cal.App.4th 893, 897-898 (Roberti I ).)

In reversing the judgment of dismissal, we held that medical opinion testimony is generally exempted from the Kelly rule, and a trial court does not evaluate whether there is general acceptance of a medical opinion concerning causation before admitting such testimony.  “Under California Law, the predicate for application of the Kelly rule is that the expert testimony is based, at least in some part, on a new scientific technique, device, procedure, or method that is not generally accepted in the relevant scientific community.   The predicate is not that the opinion or underlying theory asserted by the expert is itself not generally accepted in the relevant scientific community or is faulty.  ‘Absent some special feature which effectively blindsides the jury, expert opinion testimony is not subject to Kelly-Frye.’  (People v. Stoll (1989) 49 Cal.3d 1136, 1155-1157.)”  (Roberti I, supra, 113 Cal.App.4th at p. 902.)   Medical theories of causation such as those at issue here are not subject to the Kelly rule when they are based entirely upon generally accepted diagnostic methods and tests, “even though the proffered evidence presents a new theory of medical causation.”  (Id. at p. 901.)   Instead of contesting admissibility, an opposing party may present contrary expert testimony to refute a medical opinion regarding causation, for example by presenting testimony that information gathered through animal studies is not sufficiently indicative of causation in humans.  (Id. at p. 903.)

Based on this analysis, we reversed the judgment of dismissal because “[t]he 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.”  (Id. at p. 906.)   We concluded that plaintiff was entitled to present his evidence at trial, to be weighed and evaluated by a jury, rather than have the trial court bar its admission in the first instance.   Plaintiff did just that, and the resulting verdict is now before us on appeal.

II. Plaintiff's Contentions of Evidentiary Error

A. The Purported Introduction of the Opinions of Unnamed, Undesignated Experts

Plaintiff contends that the trial court erred by allowing defense expert Dr. Koren to repeatedly testify that the medical and scientific communities had uniformly rejected the causation opinions of plaintiff's experts as “junk science.”   According to plaintiff, Dr. Koren was permitted to testify to the opinions of numerous, unnamed experts even though such testimony was hearsay, and these unnamed experts were not designated as experts by defendant.   We disagree.2

The challenged testimony occurred during the cross-examination of Dr. Koren by plaintiff's counsel.   In his opening brief, plaintiff merely excerpts portions of the testimony with little or no explanation.   Our review shows that as to all but two incidents, plaintiff forfeited any claim of error by failing to make a timely and appropriate objection.   As to the two portions to which an objection was made, only one was objected to on the ground of hearsay.   In any event, we find no error and no prejudice.   In addition, even if we were to overlook all the failures to object and consider each incident of testimony together as a whole, the present case is not analogous to the decision on which plaintiff relies, Whitfield v. Roth (1974) 10 Cal.3d 874.

We set forth the relevant exchanges.3

1. The Challenged Testimony

a. First Exchange

Plaintiff's counsel asked:  “[I]f a witness was to come into this courtroom and testify under oath that, in her opinion, the descriptive term ‘chronic static encephalopathy’ was a term that wasn't used in neurology for the last 40 years, that would be wrong?”   Dr. Koren testified:  “That is correct.   Yesterday, I explained to the jury that it's used for carbon monoxide, for many things.   But you cannot use it for something like Dursban where the medical books do not show it.   You cannot produce it for the court.   You cannot produce science to the court.   What I tried to say yesterday, sir, is that you produce science for the court, that the medical books and the medical professors, and the association do not know about.”

Plaintiff's counsel did not object to this testimony, and thereby forfeited any challenge on appeal.  (Platzer v. Mammoth Mountain Ski Area (2002) 104 Cal.App.4th 1253, 1260 (Platzer ) [to preserve error in admission of evidence for review, party must object at trial, state specific grounds, and direct objection to specific evidence];  see also Evid.Code, § 353.)

b. Second Exchange

Plaintiff's counsel asked Dr. Koren if he remembered giving the following testimony:  that if asked by a woman for advice whether she would be exposed to danger from pesticides if she worked in agriculture, Dr. Koren had responded that he would look to the literature and tell her there was no proof of such a danger.   In response to the question whether he remembered such testimony, Dr. Koren replied that he could not “attest” to the words used by counsel, but that his prior testimony was that “[a]t the present time, the view of people in the field, teratologists, maternal-fetal toxicologists, the society of teratology -”

Plaintiff's counsel interposed a hearsay objection, which the court overruled.   Dr. Koren then finished his answer, explaining that his prior testimony was that “if a woman is exposed to agricultural exposure, the overall literature of today does not suggest that she has an increased risk of organophosphates, and she can continue to work in that context.”

The trial court did not err in overruling the hearsay objection.  “ ‘While an expert may state on direct examination the matters on which he relied in forming his opinion, he may not testify as to the details of such matters if they are otherwise inadmissible.  [Citations.]  The rule rests on the rationale that while an expert may give reasons on direct examination for his opinions, including the matters he considered in forming them, he may not under the guise of reasons bring before the jury incompetent hearsay evidence.’ ”  (People v. Coleman (1985) 38 Cal.3d 69, 92 (Coleman ).)

Here, Dr. Koren did not run afoul of this rule.   Plaintiff's counsel asked if Dr. Koren remembered his prior testimony making reference to relevant literature.   Dr. Koren replied that he could not remember the precise words, but explained, in substance, what his prior testimony had been, including a reference to the literature.   To the extent this explanation mentioned the literature, it did not mention the details, and did not refer to the literature for the truth of the matter asserted, but rather merely to explain the basis for Dr. Koren's opinion that toxic exposure presented no danger to women working in agriculture.   The court did not abuse its discretion in overruling the hearsay objection.  “ ‘A trial court's exercise of discretion in admitting or excluding evidence ․ will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice․’  (People v. Rodriguez [ (1999) ] 20 Cal.4th [1] at pp. 9-10, citations omitted;  see Evid.Code, §§ 353, 354.)”  (San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1419.)

c. Third Exchange

Plaintiff's counsel asked Dr. Koren whether in his testimony he was saying “there's nothing in the peer-reviewed literature that speaks to teratogenic effects of pesticides?”   Explaining his prior testimony, Dr. Koren replied in relevant part that “we, as people who work in this field, weighting all the evidence together, do not believe that there is a risk for birth defects․  You have to do statistics to show that those who took that medication have more malformations than the regular chance of a woman.   For that reason, my answer to the woman will not be, sir, that there has not been a single case.   The answer will be that the experts in Motherisk, in the American Society of Teratology -”

Counsel interrupted to instruct, “Wait a second.   You can't talk about other people, just you.”  “Speak for yourself.”

Dr. Koren then testified, “Myself, as a member of the American Teratology Society, myself as a member of the organization of Teratology Information Service based in the United States of America, all of us together did not find evidence for pesticides use in agriculture, or even less, caused malformations in humans.   And that's why ourself and the EPA and other organizations do not tell woman to stop working in agriculture or to be at homes where there is application of Dursbans and similar ones.”

Counsel's instruction to the witness was not a proper objection:  it did not state a legal ground and did not call for any ruling by the court.   Moreover, plaintiff's counsel made no objection to the testimony Dr. Koren gave after the instruction and made no motion to strike.   Thus, plaintiff forfeited any objection on appeal.  (Platzer, supra, 104 Cal.App.4th at p. 1260;  Evid.Code, § 353.)

d. Fourth Exchange

To cross-examine Dr. Koren about his testimony that the literature did not support the notion that pesticides posed a risk to women working in agriculture, plaintiff's counsel asked whether Dr. Koren had read certain articles.   In that context, plaintiff's counsel asked whether Dr. Koren remembered being shown a particular article in his deposition and testifying that he did not remember reading it.   Dr. Koren replied:  “Sir, I don't remember my answer.   And what I want to tell you again and again, the view that I make is built on a large body of evidence, all my expertise in the field.   And any attempt by you now to suggest that paper ‘X’ or ‘Y’ I did not mention to you look to me out of context.   You still have not shown me any proof that my views and the views of consensus people on that field is -”

Plaintiff's counsel interrupted to request a side bar conference.   At side bar, plaintiff's counsel complained that Dr. Koren “seems to be taking every opportunity he can to speak on behalf of people or organizations other than himself․  He's here as an independent, individual witness.   He should testify what his opinion is.   He should not be a speaker for other groups, other organizations, or other people who aren't here.   That's totally improper.”   The court responded, “He's answering your questions.”   Counsel later reiterated that it was “inappropriate and improper for this witness to speak on behalf of any other person or group or organization when he answers,” and requested that the court so instruct the witness.   The court replied, “Counsel, you keep asking what he bases his opinion on, and he has to go into this thing to explain to you what his feeling is that he's relied upon, and it's gone on and on and on.”   When counsel said, “he's testifying on behalf of all these groups,” the court replied, “It's been asked about, what he relies upon, and part of it was he relied upon these groups.   It's all been brought out.   I don't think that he's that far off.”

Resuming proceedings in the presence of the jury, the court instructed Dr. Koren:  “Please try to listen to the question and make a response to the question.   It's to you and what you know, unless he asks for something about something else.   So please try to be clear․  You're speaking for yourself.   Sometimes it's based on your experience and background, and I think you've made that clear to the jury.”

Plaintiff's counsel did not make a proper objection to the testimony that occurred before the sidebar conference, and did not request that it be stricken.   Rather, he asked that the court instruct the witness, which the court did.   Plaintiff has thus forfeited any objection on appeal.  (Platzer, supra, 104 Cal.App.4th at p. 1260;  Evid.Code, § 353.)

Even if we deem the exchange at side bar to be a proper objection on hearsay grounds, the court did not err in overruling it.   There was nothing objectionable.   The only possibly objectionable part of the answer was the incomplete statement, “You still have not shown me any proof that my views and the views of consensus people on that field is-“ But this statement did not result in the admission of hearsay, that is, out of court statements of others offered for the truth of the matter asserted.

e. Fifth Exchange

Plaintiff's counsel asked, in substance, whether the risk to women from toxic exposure was “why the EPA in its memorandum of agreement has prohibited the use of chlorpyrifos-containing pesticides for the treatment of subterranean termites?”   Dr. Koren replied, “No. It's not because of pregnancy.   It's because of general consent that exists-that's my understanding-among citizens, lawyers, physicians that we should not increase the level of poisons in our environment․  That does not prove ․ that the levels existing today cause birth defect.   The extrapolation you are doing [from animal studies] for the court.   It's not accepted by the medical community.”

There was no objection to this testimony, and therefore the issue is forfeited.  (Platzer, supra, 104 Cal.App.4th at p. 1260;  Evid.Code, § 353.)

f. Sixth Exchange

Plaintiff's counsel asked Dr. Koren if, when he updated his book, “Maternal-Fetal Toxicology,” he reviewed the available literature.   Dr. Koren gave a rambling answer, in relevant part as follows:  “Unlike yourself, sir, that do this case and, unfortunately, do not understand it after five years ․, I practice this area 30 years [and] review the literature every day․  So when you now pick out one study ․ and ask me about it and the new book, it's based on ongoing literature review.   And it's not just done by myself.   It's a team of 70 people doing it․  Not everything that we read is relevant for the case.   So many times, when you ask me, ‘Did you read that? ․’ and I don't remember after so many years because I do it every day, sir, it does not mean it was not considered․  And you can go now for another hour asking me this page and this page, and the answer is you are producing junk science for the court to believe that something that no scientist believe is a human teratogen is teratogen.   That will not change, because Dursban is not teratogenic in humans as of [2007].”

Plaintiff's counsel moved to strike the answer as not responsive, but the court overruled the objection, concluding that the answer “was explanatory.”   Plaintiff did not object on the ground of hearsay, and thus forfeited his hearsay objection on appeal.  (Platzer, supra, 104 Cal.App.4th at p. 1260;  Evid.Code, § 353.)   Although the non-responsive objection should have been sustained (we note that on appeal, plaintiff does not argue this point), the error was not prejudicial.   Though the testimony was quite argumentative, its substance was simply that the scientific literature did not support the notion that Dursban was toxic to humans.   This was a proper source for Dr. Koren's opinion testimony concerning a lack of causation.  (See Coleman, supra, 38 Cal.3d at p. 92 [expert may state basis of opinion, but cannot testify to details of inadmissible out of court sources].)

2. Inapplicability of Whitfield v. Roth, supra, 10 Cal.3d 874

Plaintiff relies on Whitfield v. Roth, supra, 10 Cal.3d 874 (Whitfield ) for the proposition that Dr. Koren's repeated statements to the effect that he spoke for the whole teratologic community constituted hearsay.   Even if we disregard all the failures to make a proper objection, and consider all the challenged testimony together, Dr. Koren's testimony does not run afoul of Whitfield.

In Whitfield, the plaintiff sued the defendant radiologists for negligently failing to detect the existence of a brain tumor when they examined her skull X-rays.   The defendants presented expert testimony from three doctors, who opined that the X-ray revealed no abnormality.   One of the experts testified over objection that he showed the X-rays to four neurological and radiological experts, and none of them detected any abnormality.  (Id. at pp. 893-894.)   Another defense expert testified over hearsay objections that he presented the plaintiff's X-rays at “grand rounds” at a teaching hospital to about 50 people, including students, resident staff, and faculty doctors, and no one felt the X-ray demonstrated any significant pathology.  (Id. at p. 894.)   The jury returned a verdict in favor of the defendants.

On appeal, the Supreme Court held:  “It is obvious that the testimony concerning the

In the instant case, Dr. Koren's testimony did not purport to put before the jury other expert's opinions for the improper hearsay purpose of independent proof rebutting a particular diagnosis.   Though Dr. Koren's testimony was sometimes phrased in argumentative and awkward ways, its substance was that the scientific and medical literature, which reflected the consensus of persons working in the field, supported, rather than undercut, his opinion that organophosphates such as chlorpyrifos does not cause birth defects in humans.   He was entitled to rely on that literature and the state of knowledge in the relevant field in formulating and articulating his opinion.   He did not go into the details of the literature on which he was relying.   The challenged testimony was not analogous to the evidence in Whitfield :  testimony that four experts examined particular X-rays and found no abnormality, and testimony that approximately 50 people (students, resident staff, and faculty doctors) examined the X-rays and found no pathology.  (Id. at p. 894.)   Dr. Koren simply testified to the consensus of knowledge in the relevant field as a basis for his opinion testimony;  he did not purport to repeat the opinions of unnamed persons whose expert qualifications were unknown.

B. Barring Cross-Examination of Dr. Koren with the Roberti I Opinion

Plaintiff contends that the trial court erred by precluding his counsel from cross-examining Dr. Koren based upon statements made by this court in Roberti I. We find no error.

To refute Dr. Koren's opinion testimony that the causation opinions of plaintiff's experts were not supported by the consensus of knowledge in the scientific and medical communities, plaintiff's counsel sought to cross-examine Dr. Koren using statements in Roberti I, which plaintiff's counsel described as being the “law of the case.”   Plaintiff's counsel asked Dr. Koren whether he had discussed with defense counsel certain statements that appeared in Roberti I (without identifying them as such).   In particular, plaintiff's counsel asked whether the defense attorney had told him:  that Drs. Abou-Donia and Thrasher “based their opinions upon research papers and studies, primarily those conducted on animals, found in peer-reviewed journals regarding Dursban and its effects and used techniques that are generally accepted in the relevant scientific community” (see Roberti I at p. 901);  that plaintiff's experts “did not rely upon any new scientific technique or procedure that had not already gained general acceptance in the relevant scientific community” (ibid.);   that their “opinions had a tendency in reason to prove causation” (see id. at p. 906);  and that their opinions “were based on studies and protocol of a type that reasonably may be relied upon by a scientific expert witness.”  (Ibid.) Dr. Koren responded that he did not recall discussing any of that with defense counsel.

Plaintiff's counsel then asked if defense counsel had told Dr. Koren that “all of what I just asked you was ruled on by the Court of Appeals [sic ] and is the law in this case.”   Defense counsel objected pursuant to Evidence Code section 352, and the trial court sustained the objection.

Thereafter, plaintiff filed a trial brief seeking the court's permission to conduct cross-examination of Dr. Koren based upon the holding in Roberti I. Plaintiff asserted that Dr. Koren's opinion testimony was “impeached by the Roberti I decision (the law of this case and the law in California), which holds, contrary to what Dr. Koren testified to, that the Plaintiff's experts opinions are probative of causation and based on methodology that is well-accepted by the scientific and medical communities in California.”   After the parties presented argument on the matter, the trial court denied the request.

Plaintiff's attempt to rely statements we made in Roberti I as a means of impeaching Dr. Koren's testimony demonstrates a fundamental misunderstanding of the doctrine of the law of the case.  “ ‘Under the law of the case doctrine, when an appellate court “ ‘states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout [the case's] subsequent progress, both in the lower court and upon subsequent appeal․’ ”  [Citation.]   Absent an applicable exception, the doctrine “requir[es] both trial and appellate courts to follow the rules laid down upon a former appeal whether such rules are right or wrong.”  [Citation.]  As its name suggests, the doctrine applies only to an appellate court's decision on a question of law;  it does not apply to questions of fact.  [Citation.]'  (People v. Barragan (2004) 32 Cal.4th 236, 246.)”  (Gunn v. Mariners Church, Inc. (2008) 167 Cal.App.4th 206, 213.)

Here, the statements at issue from Roberti I were made in the context of the legal issue whether plaintiff's expert testimony was barred from admission by the Kelly rule.   We held it was not.   Our holding that the testimony was admissible is law of the case only as to the admissibility of the evidence.   The holding (and the statements we made in reaching it) is not “law of the case” declaring that plaintiff's experts' reliance on animal studies to conclude that chlorpyrifos causes brain damage and/or autism is immune from attack by other experts.   Indeed, plaintiff's counsel's characterization of our statements as “law of the case” was actually an improper attempt to use those inadmissible hearsay statements as substantive proof bolstering the testimony of plaintiff's experts.   As the trial court properly understood, Roberti I “allowed testimony to be given by the [plaintiff's] doctors as to their versions,” but did not prevent “[defendant's] doctors from being truthful and giving their opinions based on their experience.”

C. Introduction of Testimony that Michael's Condition Could Be of Unknown

Genetic Origin

1. Factual Background

Plaintiff's final contention of evidentiary error is that the court erred by permitting Dr. Koren to offer speculative testimony that plaintiff's condition could be due to unknown, undiscovered causes.   Plaintiff filed a motion in limine seeking to preclude Dr. Koren from offering such an opinion.   Plaintiff quoted a portion of Dr. Koren's deposition testimony, in which he said that it was not his opinion that plaintiff has a genetic or chromosomal disorder.   Plaintiff argued that Dr. Koren thus had no opinion that plaintiff has a genetic or chromosomal disorder but nevertheless would want to testify that plaintiff may have a genetic disorder that science has not yet discovered.   Plaintiff contended that such testimony should be precluded because it was wholly speculative and lacking in foundation, and also presented a substantial danger of causing undue prejudice and confusing the issues (Evid.Code, § 352).

When the parties argued the motion in limine, defense counsel read into the record additional deposition testimony by Dr. Koren, in order to place in context Dr. Koren's statements that it was not his opinion that plaintiff had a genetic or chromosomal disorder.   He said at deposition that while some chromosomal analyses had been done on plaintiff and revealed no chromosomal defects, that was only “to the extent that we can check chromosomes today.”   He continued that “more than 90 percent of developmental disorders are not diagnosed today, so that in five years, there may be ten new chromosomal things that will be detected․  [M]ost cases there is no diagnosis.   So that does not rule out genetic reason not known to us today.   It's just that we don't know what to check for.”   Dr. Koren said that the inability to check for abnormalities did not mean that genetic abnormalities do or do not exist.  “But I wanted it to be clear that I'm against any attempt to suggest that this is not a genetic disorder because we do not know.”

Plaintiff's counsel summarized Dr. Koren's opinion as being “that [plaintiff] may have some unknown disorder that he has no idea about that hasn't yet been discovered by science.”   Counsel argued that there was no foundation for the opinion, it had no basis in science, was purely speculative, and highly prejudicial.  “He's saying that, ten years from now, we may discover things that we don't know about today and that that may be the cause.”

The trial court denied the motion in limine, ruling that Dr. Koren could testify at trial as he did in his deposition.

Thereafter, Dr. Koren testified that one of the factors he considers in his work is whether various birth defects have genetic causes, as opposed to being caused by exposure to drugs or other toxins.   He said the science of genetics is in a relatively early stage, so often the reasons for birth defects are not known, but “[h]opefully in five, six years when the genes are better understood, we'll know more.”   Plaintiff's counsel objected, and explained to the trial court at sidebar:  “He is speculating that there may be a test in the future at some point in time which may show something which may lead to the ability to diagnose a genetic condition which may occur in the future but doesn't exist now.   So there's no foundation, and it's speculation.”   The trial court overruled the objection.

Asked “[i]f a child tests negative for fragile X [a chromosomal disorder], does that eliminate all genetic origins of that child's developmental problems,” Dr. Koren responded that “most genetic things we cannot see, even as we talk now.”   He later testified:  “I did not mean to say that Michael has or does not have a genetic cause.   But no genetic cause was found.   It may well be that Michael who - in five years, there will be a blood test that will show genetics.   So the extent of what we know today, I am not aware that Michael has identified a genetic cause.   That does not mean that there won't be one.”   Plaintiff's counsel asked again, “It's your opinion in this case that Michael does not have a genetic disorder, isn't it?”   Dr. Koren answered, “At present time, there is no proof that there is a genetic reason.   That does not mean that there is no genetic reason,” because new scientific discoveries could in the future reveal a new cause.  “Chromosomal testing does not show a problem today.   But in five years, it may be found.   So I don't think anyone can say that he has no genetic problem.”

2. Discussion

On appeal, plaintiff asserts that it was error to permit Dr. Koren to offer this opinion because it was speculative, devoid of any foundation, and based on improper matter.   He also contends it presented a substantial danger of undue prejudice:  “[A]llowing defense experts in toxic exposure cases to testify that the defendant is not liable because the injury might have been caused by some unknown condition not yet known to science essentially gives defendants a thermonuclear weapon to always defeat causation.”   We disagree.

Dr. Koren's opinion was not speculative or devoid of foundation.   He merely pointed out that the current state of medical science does not allow him to confirm, or to rule out, a genetic or chromosomal abnormality as the cause of plaintiff's condition.   It was a factually accurate statement to say that often birth defects are linked to genetic abnormalities, but that relatively little is known about identifying the precise genetic defect responsible for various conditions.   Dr. Koren did not speculate that a genetic cause for plaintiff's condition would be discovered, he simply said that it was possible that a genetic cause was responsible.   This was not speculation;  it was a statement relevant to Dr. Koren's opinion regarding causation based on his scientific knowledge.   In addition, we note that the opinion was offered to refute plaintiff's counsel's attempt to definitively confirm that plaintiff did not have a genetic disorder.   The testimony was relevant and admissible to fully explain Dr. Koren's opinion.

Moreover, the opinion expressed by Dr. Koren was not unduly prejudicial within the meaning of Evidence Code section 352.   The testimony simply pointed out that plaintiff's condition might have a genetic cause that medical science is unable to diagnose at the present time.   It had little effect on the plaintiff's evidentiary burden to prove that the pesticide defendant used was the cause of plaintiff's condition.   Merely suggesting that the injury could have another cause that cannot be verified is hardly prejudicial or likely to mislead the jury.

III. Error in Awarding Costs

Defendant filed a memorandum of costs that included a request for $276,296 in witness fees, and total costs in the amount of $400,152.   Plaintiff filed a motion to tax costs, which the trial court denied in part and granted in part, awarding the full amount of the witness fees requested, and total costs of $369,850.

Plaintiff contends on appeal that defendant's memorandum of costs contained several errors-which defendant admitted were errors-and as a result, the memorandum of costs was inherently unreliable and should have been rejected in its entirety.   Plaintiff also contends that the trial court erred by awarding expert witness fees because defendant's offer of compromise was unreasonable.   He asserts that defendant failed to demonstrate entitlement to recover witness fees for experts who did not testify at trial.   Finally, plaintiff also contests the award of “clerk of the court” fees, and costs for models, blow ups and photocopies of exhibits.   Because we disagree with each of these contentions, we affirm the award of costs.

A. Reliability of the Memorandum of Costs

In its opposition to the motion to tax costs, defendant admitted that its memorandum of costs contained errors.   However, defendant withdrew its request for certain court reporter fees, fees for an unrelated deposition, charges incurred due to defense counsel's failure to attend scheduled depositions, and investigation fees.

Plaintiff contends on appeal, as he did in his reply brief in the trial court, that defendant's numerous errors rendered invalid the verification of costs (Cal. Rules of Court, rule 3.1700(a)(1)), and resulted in the entirety of defendant's memorandum of costs being suspect and unreliable.   He argues that given defendant's “gross overreaching” by requesting unrecoverable costs, and defendant's failure to factually substantiate each item of costs, the entirety of defendant's memorandum of costs should have been stricken.   However, plaintiff cites no authority that supports the contention that admitted errors in a memorandum of costs render the entire cost bill and verification unreliable,4 and we have found no such authority.   We find no merit to the assertion that defendant's admission of errors as to some items of costs should result in the entirety of the cost bill being stricken, and conclude that the trial court did not abuse its discretion by rejecting this claim.

B. Defendant's Offer of Compromise Was Not Patently Unreasonable

Plaintiff argued in his motion to tax costs that defendant's expert witness fees were not properly recoverable because its $50,000 offer of compromise was patently unreasonable given plaintiff's alleged damages of $20 million.   Plaintiff asserted that his offer of compromise was $999,999.99, although the record does not contain his written offer or even a declaration attesting to that fact.   Plaintiff argued that these facts alone demonstrated that defendant did not meet the good faith requirement inherent in Code of Civil Procedure section 998.

The trial court found, however, that considering the evidence available to the parties when the offer was made, defendant's offer of $50,000, with each party to bear its own costs, was a reasonable and good faith offer to compromise.   “Defendant accumulated substantial evidence of lack of causation on its part and therefore the offer made to plaintiff was a reasonable offer.”

“Code of Civil Procedure section 998 sets forth procedures whereby a party to a civil lawsuit can make a pretrial offer to settle the case.  [Fn.] The statute further prescribes conditions whereby the offeror may recover costs and expert witness fees if the offer is not accepted and the offeror obtains a judgment at least as favorable as that proposed in the offer.”  (Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 695-696 (Elrod ).)   “[O]nly good faith offers qualify as valid offers under section 998.”   (Id. at p. 698.)  “[A] good faith offer ‘must be realistically reasonable under the circumstances of the particular case.’  [Citation.]  It must carry with it some reasonable prospect of acceptance.  [Citation.]”  (Ibid.) “As a general rule, the reasonableness of a defendant's offer is measured, first, by determining whether the offer represents a reasonable prediction of the amount of money, if any, defendant would have to pay plaintiff following a trial, discounted by an appropriate factor for receipt of money by plaintiff before trial, all premised upon information that was known or reasonably should have been known to the defendant.”  (Id. at p. 699, fn. omitted.)  “If the offer is found reasonable by the first test, it must then satisfy a second test:  whether defendant's information was known or reasonably should have been known to plaintiff.”  (Ibid.)

As in the trial court, plaintiff argues on appeal that defendant's $50,000 offer was patently unreasonable because plaintiff's alleged damages were $20 million.   He relies solely on the disparity between plaintiff's claimed damages and the amount of defendant's offer, citing two cases in which the trial court concluded that defendant's offer was so disproportionate to the plaintiff's demand that it was unreasonable to expect it would be accepted.  (See Elrod, supra, 195 Cal.App.3d 692;  Pineda v. Los Angeles Turf Club, Inc. (1980) 112 Cal.App.3d 53 (Pineda ) [no abuse of discretion for trial court to deny defendant's claim for expert fees even though jury returned defense verdict].)   However, those cases are readily distinguishable because in the case before us we review for an abuse of discretion the trial court's decision to award costs, rather than to deny costs as in Elrod and Pineda.

Whether a Code of Civil Procedure section 998 offer was reasonable and made in good faith is left to the sound discretion of the trial court.  (Elrod, supra, 195 Cal.App.3d at p. 700.)   The trial court here concluded that defendant's offer was reasonable because defendant had “accumulated substantial evidence of lack of causation on its part.”   Plaintiff does not argue that defendant, when it made its section 998 offer in August 2001, had no reason to believe that the offer was reasonable.   He does not challenge the notion that, based on discovery conducted up to that point, defendant had reason to know that plaintiff would have difficulty proving causation.   Because plaintiff has not challenged the basis for the court's exercise of discretion, he has thereby failed to demonstrate the trial court abused that discretion.   The disparity between the amount of defendant's section 998 offer on the one hand, and plaintiff's settlement demand or claimed damages on the other, is alone insufficient reason for us to conclude that the trial court erred in awarding expert witness fees.   We find no abuse of discretion.

C. Awarding Costs for Experts Not Called at Trial Is Permissible

Plaintiff also argues that the trial court erred by awarding $70,059.75 in costs for experts that defendant did not call at trial.   Specifically, the court awarded $16,500 for Dr. Charles Becker, who plaintiff asserts merely “provided [defendant] with contact information for defense expert Gideon Koren, who did testify at trial.”   The court awarded $1,893.75 for the services of James McElroy (an expert on the standard of care), although he did not testify.5  Steve Molina, for whom defendant claimed costs of $44,624, and Ted Vavoulis, for whom defendant claimed costs of $7,040, also did not testify at trial.   Defendant claimed their services were important to formulate its damages model, but plaintiff argues that this is inconsistent with defendant's damages theory before and during trial (that plaintiff suffered no damages at all).

Pursuant to Code of Civil Procedure section 1033.5 (section 1033.5) a defendant may file a cost bill claiming “allowable” costs (id., subd. (a)), as well as other costs that may be allowed in the court's discretion (id., subd. (c)(4)).  “[S]ection 1033.5, enacted in 1986, codified existing case law and set forth the items of costs which may or may not be recoverable in a civil action.  [Citation.]”  (Van de Kamp v. Gumbiner (1990) 221 Cal.App.3d 1260, 1291-1292.)   An item not specifically allowable under subdivision (a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (§ 1033.5, subd. (c)(2).)

“If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary.   On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.   [Citations.]  Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion.  [Citation.]”  (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.)

The trial court concluded that the cost incurred by defendant for Dr. Becker's services for “assist[ing] with the strategy to bring in Dr. Gideon Koren for his expertise on fetal toxic exposures,” was reasonably necessary.   The trial court accepted that the services went beyond merely providing contact information, and were important to developing the defense case.   It is not our role to second guess the trial court, as the court was in a far better position to evaluate the importance of the services at issue.

Similarly, as to the reasonable necessity of the services provided by the damages experts, we will not interfere with the trial court's conclusion.   Although defendant took the position that plaintiff suffered no damages as a result of defendant's conduct, defendant still had to be prepared to address plaintiff's claims of damages.

D. Clerk of the Court Fees

Plaintiff also challenged a cost item for $18,807, which he asserts represented costs for transcripts of court proceedings that were not ordered by the court, and were therefore disallowed pursuant to statute. (§ 1033.5, subd. (b)(5).)   However, defendant indicated to the trial court that it intended this item to reflect its costs for statutory court reporter fees, as allowed under section 1033.5, subdivision (a)(11).   The court accepted this representation, and we find no abuse of discretion in its having done so.

E. Costs for Models, Blow Ups, and Photocopies of Exhibits

Finally, plaintiff challenges the award of $8,912 for models, blow ups, and photocopies of exhibits, even though these costs are allowable under section 1033.5, subdivision (a)(12) if they were reasonably helpful to aid the trier of fact.   He contends that defendant introduced just a handful of exhibits and only two graphics at trial.   However, defendant's explanation of the manner in which these items were reasonably helpful to aid the trier of fact (including that defendant marked over 100 exhibits at trial, and incurred costs for photocopying plaintiff's more than 600 exhibits) was accepted by the trial court.   Plaintiff has demonstrated nothing further on appeal that would justify our finding that the trial court abused its discretion in so doing.

disposition

The judgment is affirmed.   Costs on appeal are awarded to defendant Andy's Termite and Pest Control, Inc.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. We noted in Roberti I that for purposes of the opinion, our conclusion would be the same regardless of the precise label applied to plaintiff's condition, whether it was properly termed autism or brain damage.  (Id. at p. 897, fn. 2.) As detailed above, plaintiff's diagnosis was heavily disputed by the parties at trial..  FN1. We noted in Roberti I that for purposes of the opinion, our conclusion would be the same regardless of the precise label applied to plaintiff's condition, whether it was properly termed autism or brain damage.  (Id. at p. 897, fn. 2.) As detailed above, plaintiff's diagnosis was heavily disputed by the parties at trial.

FN2. Before trial, plaintiff filed a motion in limine seeking to preclude defense expert Dr. Lott from testifying regarding the purported hearsay opinions of other unnamed and undesignated neuroradiologists, to whom he showed plaintiff's CT scan after already reaching his own opinion and conclusions regarding its interpretation.   The trial court granted the motion and excluded this testimony as inadmissible hearsay.   Plaintiff contends that defendant nonetheless elicited the same inadmissible, foundationless hearsay testimony from its causation expert, Dr. Koren.   As we will explain, Dr. Koren's testimony was distinguishable from the testimony by Dr. Lott that the trial court ruled inadmissible..  FN2. Before trial, plaintiff filed a motion in limine seeking to preclude defense expert Dr. Lott from testifying regarding the purported hearsay opinions of other unnamed and undesignated neuroradiologists, to whom he showed plaintiff's CT scan after already reaching his own opinion and conclusions regarding its interpretation.   The trial court granted the motion and excluded this testimony as inadmissible hearsay.   Plaintiff contends that defendant nonetheless elicited the same inadmissible, foundationless hearsay testimony from its causation expert, Dr. Koren.   As we will explain, Dr. Koren's testimony was distinguishable from the testimony by Dr. Lott that the trial court ruled inadmissible.

FN3. English is Dr. Koren's second language.   Some of the testimony contains grammatical errors and somewhat awkward phrasing that we have not corrected.   We mean no disrespect to Dr. Koren..  FN3. English is Dr. Koren's second language.   Some of the testimony contains grammatical errors and somewhat awkward phrasing that we have not corrected.   We mean no disrespect to Dr. Koren.

FN4. Plaintiff cites Fennessy v. DeLeuw-Cather Corp. (1990) 218 Cal.App.3d 1192, 1195, as holding that a party moving to tax costs may put at issue the entirety of a cost bill by showing the majority of the costs claimed were improper.   Here, the majority of the requested costs were not shown to be improper.   In any event, Fennessy is inapposite because it involves apportionment of costs among joint defendants and the method by which a plaintiff challenging a request for costs by one defendant must place in issue the defendant's right to recover costs incurred by all of the joint defendants..  FN4. Plaintiff cites Fennessy v. DeLeuw-Cather Corp. (1990) 218 Cal.App.3d 1192, 1195, as holding that a party moving to tax costs may put at issue the entirety of a cost bill by showing the majority of the costs claimed were improper.   Here, the majority of the requested costs were not shown to be improper.   In any event, Fennessy is inapposite because it involves apportionment of costs among joint defendants and the method by which a plaintiff challenging a request for costs by one defendant must place in issue the defendant's right to recover costs incurred by all of the joint defendants.

FN5. Plaintiff does not explain his objection to awarding costs for McElroy's services other than to note that McElroy did not testify at trial.   We therefore conclude that plaintiff has forfeited any claim of error in this regard..  FN5. Plaintiff does not explain his objection to awarding costs for McElroy's services other than to note that McElroy did not testify at trial.   We therefore conclude that plaintiff has forfeited any claim of error in this regard.

EPSTEIN, P.J. SUZUKAWA, J.