Attorney Search
Advocacy at a Higher Level

Horvitz & Levy is a solutions-based firm focused on appellate success. We are distinguished by our commitment to responsive service and on-going innovation in the areas of civil appellate litigation, amicus curiae support, and trial strategy consultation.

Our firm history, honors and awards, and locations speak to our collaborative approach and commitment to serving clients as well as the outstanding legal resources we bring to bear.


View Opinion View Opinion

Darcee Dee lived in an apartment for slightly over four months. She sued her landlord and property management company for alleged physical injuries, as well as fear of cancer, from living in an apartment that purportedly had toxic mold in it. After hearing the plaintiff’s experts testify over several days of a 402 hearing, the trial court granted the defendants’ motions in limine to exclude most of the plaintiff’s experts’ testimony based on a lack of foundation under Evidence Code 801. The plaintiff did not dispute that certain novel tests should be excluded under Kelly. The remaining portions of Dee’s claims were tried to a jury, and the jury rejected her claims.

The Second Appellate District, Division Four affirmed the judgment, concluding in a portion of the opinion ordered published May 28 that the trial court did not abuse its discretion by excluding plaintiff’s experts under Evidence Code 801 for lack of an adequate foundation. The court relied on the decision in another mold case, Geffcken v. D’Andrea (which Horvitz & Levy LLP also handled) and distinguished its own decision in Roberti v. Andy's Termite, the only published opinion to have rejected the trial court's authority under the California Evidence Code to thoroughly analyze the foundation for expert testimony in order to determine its admissibility. The court reasoned that, unlike Roberti, this case involved an emerging area of scientific analysis (adverse health effects from residential mold exposure) and experts who also purported to rely on novel scientific tests which the plaintiff conceded were inadmissible. The implication of the court’s opinion is that, at least where a cutting edge scientific issue is involved or where experts purport to rely on unreliable tests, an analysis of the foundation of an expert’s opinion is appropriate under 801.

H&L’s victory in this case was profiled in The Voice, the weekly newsletter of the Defense Research Institute. (See And the Defense Wins, The Voice, Aug. 12, 2009.)