Expert Testimony on Permanency of Respiratory Injury Requires Reference to Empirical Data

This matter involved a plaintiff’s claim that he developed reactive airway disease syndrome (RADS) from exposure to the fogging disinfectant HaloSpray. HaloSpray had been used to fog a room located adjacent to where the plaintiff was cleaning as a janitor. He quickly developed respiratory distress and nausea from the exposure and sought emergent treatment. At trial, the plaintiff argued the defendant had utilized the spray in a negligent manner by failing to properly seal off the room being fogged. The jury found in the plaintiff’s favor and awarded $500,000 non-economic losses and $500,000 in future medical expenses. The trial court struck down the award for future medical expenses on the defendant’s motion for judgment notwithstanding the verdict (JNOV) for a dearth of expert testimony on the issue of the duration/concentration of exposure to HaloSpray required to cause permanent lung damage. The Superior Court upheld JNOV on the future medical expenses claims on the grounds that the plaintiff’s two experts failed to “cite any credible or accepted scientific studies that link a single exposure of unknown quantity or intensity of the irritant identified in HaloSpray . . .to the delayed response they opined was RADS.” This decision highlights the importance or probing the underlying scientific basis for an expert to propound on the permanency of an injury, even where the expert’s testimony on causation of the initial underlying injury is uncontroverted. 

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