MS. DEE APPEALS JUDGMENT ON SPECIAL VERDICT SEEKING TO REVERSE JUDGE ETTINGER’S PREJUDICIAL ERRORS PREVENTING TESTIMONY OF MS. DEE’S TOXIC MOLD EXPERTS ON CAUSATION AND REVERSAL OF INSTRUCTION TO THE JURY ON MS. DEE’S FEAR OF CANCER.
THE CALIFORNIA SUPREME COURT HAS GRANTED REVIEW IN THE LOCKHEED LITIGATION CASES RELIED ON BY JUDGE ETTINGER, AND A DECISION IS EXPECTED IN THE NEXT 90 DAYS
Los Angeles, CA – September 15, 2005, Dee vs. PCS. (Case No. LC057263) Attorney for Ms. Dee, Scott B. Whitenack Stubblefield states, “On September 12, 2005, Ms. Dee filed her timely Appeal seeking reversal of the Judgment granting the Defense Special Verdict and Court Costs and expert fees of $331,000.00. This was a direct result of Judge Ettinger reversing his prior order of February 16, 2000 L.A. Judge Rules Neuropsychologist Qualified For Expert Testimony In $6M Landmark Toxic Mold Case and “reversing his prior order that the Jury would be instructed on Ms. Dee’s lifetime fear of cancer as a result of Ms. Dee’s exposure to toxic mold/mycotoxins that are know carcinogenic.”
Mr. Whitenack states that during the final week of Ms. Dee’s Jury Trial, on April 13, 2005, The California Supreme Court granted the Petition For Review of the Lockheed Litigation cases, which judge Ettinger relied on in excluding Ms. Dee’s experts. This was contrary to the law as stated by the California Supreme Court in Roberti vs. Andy’s Termite & Pest Control, Inc. (March 2005) 113 CalApp.4th 893 and Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 25 Cal.Rptr. 2d 550. The Lockheed Litigation Cases (S132167) did not follow the Roberti decision, and the issue presented on review, which should be determined in 90 days is: Does Evidence Code section 801, subdivision (b), permit a trial court to review the evidence an expert relied upon in reaching his or her conclusion in order to determine whether that evidence provides a reasonable basis for the expert’s opinion?
Mr. Whitenack, further states, “Unlike Roberti and Lockheed, Ms. Dee’s case may be the first Toxic Mold Case upholding the law in California, and the same Appellate Defense firm of Horvitz & Levy LLP, that lost in Roberti, and is now representing the Respondents in the Lockheed Litigation Cases and PCS and Ms. Thaler in Ms. Dee’s Appeal.”
Mr. Whitenack further states, that “The California Supreme Court denied requests to review or de-publish the Roberti opinion in March of 2004. The basis for the review was almost identical to the issue raised in the Lockheed Litigation Cases. The Request was made by the Lockheed Martin Corporation, the National Ass. of Manufactures, U.S. Chamber of Commerce, California Chamber of Commerce, Occidental Petroleum Corp, Reichold, Inc. White & White Properties, etc.. and that “It is Mr. Whitenack’s opinion that the California Supreme Court will affirm the long standing rule in California as set forth in Roberti, and they will not permit the Judges to use evidence code section 801 as a guise to get around the Kelley Rule and the holding of Roberti.”
In conclusion, Mr. Whitenack states, “WE LOOK FORWARD TO THE FINAL BATTLE ON RETRIAL.”