Plaintiffs Briana Leakas and her minor son, D.L., along with Theodore Leakas, Leakas’ spouse and D.L.’s guardian ad litem, initiated a legal action in the Monterey County Superior Court alleging personal injuries resulting from toxic mold contamination in a home they leased from Defendants, Monterey Bay
Military Housing, LLC. The Plaintiffs claimed they sustained these injuries while residing in the U.S. Army Garrison Presidio of Monterey from approximately June 2019 to May 2020. The Defendants, citing the occurrence of the events in a federal enclave, removed the case to the United States District Court for the Northern District of California.
After the Court granted the Defendants’ motion to dismiss the complaint with leave to amend, the Plaintiffs filed an amended complaint, which served as the operative pleading. This amended complaint asserted ten state and common law claims for relief, including negligence, nuisance, negligent misrepresentation, negligent infliction of emotional distress, breach of implied warranty of habitability, breach of implied covenant of quiet use and enjoyment, gross negligence, premises liability, constructive (wrongful) eviction, and fraud—concealment.
Rebecca Czarnik, a registered nurse retained by the Plaintiffs solely for providing a projection of future medical costs, based her testimony entirely on the proposed testimony of another expert, David Ross, concerning Leakas’ long-term care and life-care planning needs. Defendants sought to exclude Czarnik’s testimony, arguing that it did not meet the admissibility requirements of Rule 702 of the Federal Rules of Evidence. They claimed her cost projections were unreliable due to mathematical and geographical errors and because she did not adjust amounts to present value. Plaintiffs opposed the motion, arguing that Defendants’ objections to Czarnik’s calculations were matters concerning the weight, rather than the admissibility, of her proposed testimony.
Life Care Planning Expert Witness
Rebecca Czarnik, RN, MS, CNLCP, also known as Becky Czarnik, is a Registered Nurse with an exemplary 44-year career encompassing various healthcare settings, including hospitals, hospital administration, teaching in university nursing programs, home care, private medical office practice, and the insurance industry. She holds active and unrestricted nursing licenses in both Nevada and California. Additionally, Czarnik is a Certified Nurse Life Care Planner, equipped to serve as both a care expert and a cost of care expert. In her role, she determines the future care needs of individuals by establishing patterns of past, present, and future care, while also identifying the associated costs of those services. She currently holds the position of CEO/Owner of Sierra Nurse Consultants. Czarnik earned her Bachelor of Science in Nursing from St. Olaf College, following her, Master of Science in Nursing from The Ohio State University.
Neuropsychiatry Expert Witness
Dr. David Edward Ross, M.D., holds a distinguished position as the Director of the Virginia Institute of Neuropsychiatry, serves as the CEO of NeuroGage LLC, and holds the role of Clinical Assistant Professor at Virginia Commonwealth University. He boasts board certification in General Psychiatry, Neuropsychiatry, and Brain Injury Medicine. Ross completed both medical school and residency in psychiatry at Virginia Commonwealth University, followed by a fellowship in neuropsychiatry at the Maryland Psychiatric Research Center, University of Maryland. His expertise lies in the treatment and research of patients with traumatic and other types of brain injury. He identifies his major career interests as encompassing traumatic brain injury, MRI brain volume measurement, acquired brain injury, mold-related illness, and other neuropsychiatric disorders.
Discussions by the Court
Defendant pressed for the exclusion of Czarnik’s report for a number of reasons. For instance, Defendants alleged that Czarnik’s calculations were based not on her independent review of Plaintiff’s medical records, but simply on a laundry list of future care items that another of Plaintiffs’ experts, Ross, provided in his report. Czarnik failed to consider, offer opinions on, or factor into her calculations what items of future care on the list provided by Ross were due to Plaintiff’s myriad and undisputed pre-existing conditions (which pre-dated her tenancy at the subject property) and her various non-mold related genetic conditions (Ehlers Danlos Syndrome and its associated illnesses) versus what was actually due to her claimed symptoms or ailments allegedly stemming from living at the Property. Czarnik’s opinion was flawed in that her report used the wrong geographical location for the Plaintiff in reaching her calculations because Czarnik priced her future care costs based on Monterey, California, despite Plaintiff residing in rural North Carolina. Czarnik did not review a single medical record of Plaintiff prior to reaching her opinions as to the reasonable value of Plaintiff’s “future medical care.” The sole basis for her opinions was her review of the report prepared by another expert in this matter, David Ross. Defendants alleged that she did not even consult with Ross or any of Plaintiff’s treating doctors as to Ross’ diagnosis and treatment plan. Even though Czarnik characterized her opinions in this matter as a “Medical Cost Projection” as opposed to a “Life Care Plan”, her methodology did not attempt to establish a medical foundation through which the future treatment and care will be necessary, which is the requisite standard. Czarnik failed to even properly value the purported costs of such care considering her report contained a number of mathematical errors which grossly overstated the cost of the purported future care needs of Plaintiff.
David Ross, a board-certified neuropsychiatrist, examined Leakas on June 28, 2023, and reviewed her medical records and other documents. Ross concluded that Leakas developed an acquired brain injury due to biotoxin (mold) exposure at the home the Plaintiffs leased in Monterey, caused by CIRS (Chronic Inflammatory Response Syndrome), a mold-related illness.
Czarnik was retained solely to provide a calculation of future medical costs based on Ross’ proposed testimony regarding Leakas’ long-term care and life-care planning requirements, yet in a separate order the Court held that Ross was not qualified to testify regarding Leakas’ long-term care or life-care planning needs. The Court noted that Plaintiffs presented no evidence or argument in response, and failed to demonstrate that Ross’ proposed testimony regarding Leakas’ long-term care or lifecare planning needs met the admissibility requirements of Rule 702. Accordingly, Czarnik’s proposed testimony was also excluded by the Court.
Held
The Court granted the Defendants’ Daubert motion to exclude testimony of Rebecca Czarnik.
The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways
Czarnik’s expert testimony came under scrutiny for various shortcomings. Her report was heavily criticized for containing numerous mathematical errors and using an incorrect geographical location for the Plaintiff’s calculations, which significantly skewed the projected future care costs. Moreover, Czarnik failed to conduct an independent review of the Plaintiff’s medical records, basing her calculations solely on a list of future care items provided by another expert, Dr. Ross. This lack of comprehensive analysis led to concerns about the accuracy and reliability of her conclusions. Additionally, Czarnik did not adequately consider the Plaintiff’s pre-existing conditions or consult with Ross or the plaintiff’s treating doctors, further undermining the credibility of her opinions. On the other hand, Ross, a board-certified neuropsychiatrist, diagnosed the Plaintiff with an acquired brain injury attributed to mold exposure, forming the basis for the Plaintiff’s claim for future medical costs. However, the Court found Ross unqualified to testify regarding the Plaintiff’s long-term care and life-care planning needs, casting doubt on the foundation of Czarnik’s calculations. The Court’s assessment also raised questions about the admissibility of expert testimony under Rule 702, as Plaintiffs failed to demonstrate that Ross’ proposed testimony met the requisite standards. Overall, the expert testimony presented significant challenges and uncertainties in the legal proceedings.
Case Details
| Case Caption | Leakas v. Monterey Bay Mil. Hous., LLC |
| Docket Number | 5:22cv1422 |
| Court | United States District Court, California Northern |
| Citation | 2024 U.S. Dist. LEXIS 26183 |
| Order Date | February 8, 2024 |
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