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Neal v. Dow Agrosciences LLC

74 S.W.3d 468 (2002)

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Neal v. Dow Agrosciences LLC

Texas Court of Appeals, Fifth District

74 S.W.3d 468 (2002)

Facts

Tim and Laura Neal (plaintiffs) rented an apartment while Laura was pregnant. When the apartment became infested with ants, the Neals complained to the apartment complex’s management. The management had the apartment sprayed with the pesticide Dursban, manufactured by Dow Agrosciences LLC (Dow) (defendant). Laura gave birth to her baby, Tim Neal, Jr. Several months later, the baby died from a malignant brain tumor. The Neals sued Dow and others for, among other things, the wrongful death of their son. They alleged that exposure to Dursban caused Tim Neal Jr.’s brain tumor. At trial, Dr. John Midtling testified that exposure to Dursban more likely than not caused Tim Neal Jr.’s brain cancer. He based this conclusion in part on his review of four studies. According to Midtling, these studies linked exposure to pesticides with a risk of childhood brain cancer, and found a significant association between the risk of brain cancer and spraying for pesticides in the home. However, when the court reviewed these articles, it found that they did not conclude that the chemicals contained in Dursban caused childhood brain cancer. Instead, the articles found the data inconclusive and suggested further research. Dow filed for summary judgment. The trial court struck Midtling’s testimony from the record as inadmissible, and granted summary judgment in favor of Dow. The Neals appealed. On appeal, they argued that the trial judge abused his discretion by striking Midtling’s testimony.

Rule of Law

Issue

Holding and Reasoning (Whittington, J.)

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