Miller v. Elisea

188

Argued and submitted January 5, 2018, reversed and remanded

February 12, 2020

Sherri Kaye MILLER

and Joshua Miller,

Plaintiffs-Appellants,

v.

Cesar ELISEA,

Defendant-Respondent,

and

Jane Doe ELISEA,

Defendant.

Multnomah County Circuit Court

15CV29373; A164445

459 P3d 887

Plaintiffs appeal from a judgment dismissing their personal injury claim

after the trial court, exercising its “gatekeeper” function to admit or exclude

expert evidence under OEC 702, excluded the testimony of plaintiffs’ expert wit-

nesses, who were prepared to testify that plaintiff Sherri Miller’s fibromyalgia

was brought on by a neck injury that she sustained in a car accident caused by

defendant. The trial court reasoned that the evidence was not scientifically valid

because there was not consensus in the medical community that fibromyalgia

can be brought on by physical trauma. Held: Whether there is consensus in the

medical community concerning a theory of medical causation is relevant to the

determination of the scientific validity of evidence, but its absence is not disqual-

ifying. Plaintiffs’ witnesses were prepared to give testimony that was scientifi-

cally principled and that was, therefore, scientifically valid. Defendant’s expert

witnesses’ testimony that plaintiffs’ theory of causation did not have consensus in

the medical community was an issue to be considered by the trier of fact but was

not dispositive in the court’s function as a gatekeeper to admit or exclude expert

evidence under OEC 702. The trial court erred in excluding the evidence.

Reversed and remanded.

Christopher J. Marshall, Judge.

Steven P. Krafchick argued the cause and filed the briefs

for appellants.

Douglas F. Foley argued the cause for respondent. Also

on the brief were Vernon Finley and Douglas Foley &

Associates, PLLC.

Before Armstrong, Presiding Judge, and Tookey, Judge,

and Sercombe, Senior Judge.

Cite as 302 Or App 188 (2020) 189

ARMSTRONG, P. J.

Reversed and remanded.

190 Miller v. Elisea

ARMSTRONG, P. J.

Plaintiffs Sherri and Joshua Miller appeal from a

judgment dismissing their personal injury claim against

defendant after the trial court excluded the testimony of

plaintiffs’ expert witnesses, who were prepared to testify

that Sherri Miller’s fibromyalgia was caused by a neck

injury that she sustained in a car accident caused by defen-

dant. We review the trial court’s ruling excluding the evi-

dence for legal error, Jennings v. Baxter Healtcare Corp.,

331 Or 285, 299, 14 P3d 596 (2000), conclude that the court

erred in excluding the evidence, and therefore reverse and

remand.

Several months after plaintiff Sherri Miller was

in a minor car accident caused by defendant, she began to

develop symptoms that were ultimately diagnosed as fibro-

myalgia. Plaintiffs brought this personal injury action,

seeking damages for Sherri’s injuries and for Joshua’s

loss of consortium as a result of defendant’s negligence.

Plaintiffs intended to call two physicians, Drs. Brown

and Freeman, as expert witnesses who would testify that

the physical trauma of the car accident caused Sherri’s

fibromyalgia.

Expert medical testimony must meet a test of “sci-

entific validity.” Marcum v. Adventist Health System/West,

345 Or 237, 240, 193 P3d 1 (2008). Defendant did not dispute

the professional qualifications of Brown and Freeman or the

diagnosis of fibromyalgia. But defendant sought to exclude

their testimony as to causation based on the opinion of their

own expert that there is insufficient concrete evidence of a

causal link between physical trauma and the development

of fibromyalgia. After a hearing under OEC 104(1),1 the trial

court determined that plaintiffs had not met the threshold

to establish the admissibility of the evidence as scientific

evidence, because plaintiffs had not shown that there is a

1

OEC 104(1) provides:

“Preliminary questions concerning the qualifications of a person to be a

witness, the existence of a privilege or the admissibility of evidence shall be

determined by the court[.]”

Cite as 302 Or App 188 (2020) 191

“consensus in the medical community” that physical trauma

can cause fibromyalgia.2

Plaintiffs appeal, contending that the trial court

erred in excluding the expert testimony. Specifically, plain-

tiffs contend that the trial court mistakenly rejected the

evidence based on a lack of consensus in the medical com-

munity concerning physical trauma as a potential cause of

fibromyalgia. In response, defendant contends that there is

no scientific support for a causal relationship between phys-

ical trauma and fibromyalgia onset and, for that reason, the

trial court did not err in excluding expert testimony that

depended on a theory that Sherri’s fibromyalgia was caused

by physical trauma.

The Supreme Court’s most recent discussion of the

admissibility of scientific evidence as to medical causation

is in Marcum. There, the court considered the admissibility

of expert testimony concerning the cause of the plaintiff’s

vasospastic disorder. The expert, having worked through

a differential diagnosis,3 determined that the plaintiff’s

vasospastic disorder had been caused by an injection of

gadolinium into the plaintiff’s hand for medical imaging,

which had leaked from the vein into the surrounding tissue,

causing damage. The issue in Marcum, similar to that pre-

sented here, was the scientific validity of the expert’s theory

of causation, in the absence of a “demonstrable mechanism

of causation,” and for which there was not some indepen-

dent, verifiable corroboration. 345 Or at 240, 249. The court

described the considerations relevant to the admissibility of

scientific evidence under OEC 401, 702, and 403, State v.

Brown, 297 Or 404, 687 P2d 751 (1984), and State v. O’Key,

2

The trial court explained its ruling from the bench:

“[B]ased on all of the record that we have here and arguments of the par-

ties, the Court’s going to find that, as its gatekeeper function on the Rule

104 motion, that the plaintiff has not shown the required standard to show

that consensus in the medical community, that the proffered evidence here

about causation, meets the standard; so we would not allow the evidence of

causation that’s been proposed here.”

3

“ ‘Differential diagnosis’ is an accepted technique in which ‘a doctor devel-

ops a list of all diseases that might cause a patient’s symptoms and then, by a pro-

cess of elimination, narrows the list’ * * * until the expert can identify the likely

cause from among those remaining.” Marcum, 345 Or at 247 (citing treatise).

192 Miller v. Elisea

321 Or 285, 899 P2d 663 (1995),4 and the court’s role as a

“gatekeeper” in determining, based on a preponderance of

the evidence, whether the scientific evidence is sufficiently

valid to assist the trier of fact. Marcum, 345 Or at 243-45.

The court noted in Marcum that the general rules for

the admissibility of scientific evidence in Brown and O’Key,

while helpful, provide only limited guidance on the issue of

scientific evidence of medical causation. Marcum, 345 Or at

245. The court instead referred for guidance to Jennings,

which had also involved a question of medical causation.

The court in Jennings explained that the inquiry into the

admissibility of evidence of medical causation focuses on the

differential diagnosis and whether the particular use of the

differential diagnosis to determine causation has met the

general test of scientific validity. 331 Or at 307. There the

court had also concluded that OEC 702 does not preclude the

admission of “novel” theories of causation that are scientifi-

cally valid. Id.

In Marcum, the court explained that the consider-

ations that bear on the scientific validity of a differential

diagnosis will vary depending on the type of injury. 345 Or

at 248. For example, the court explained, in a case involv-

ing a toxic exposure, reliable testimony of causation might

require extremely accurate data and methods, peer-reviewed

studies, and small and controlled error rates, to “rule in”

a possible cause. Id. In a case such as Marcum, involving

a single event, where the injury was immediate and local-

ized, it may be possible to rule in the exposure when there

are few obvious alternative causes. Id. at 249. The court

explained that, when “ruling in” a potential cause, “a trial

court should insist that the causation theory be biologically

plausible, that is, that the exposure could have caused the

4

The primary source of a trial court’s gatekeeping function with respect to

expert testimony is OEC 702, which provides:

“If scientific, technical or other specialized knowledge will assist the trier

of fact to understand the evidence or to determine a fact in issue, a witness

qualified as an expert by knowledge, skill, experience, training or education

may testify thereto in the form of an opinion or otherwise.”

Scientific knowledge does not assist the trier of fact if it is not sufficiently valid or

reliable to warrant the unusually high degree of persuasive power that it is likely

to have. O’Key, 321 Or at 291.

Cite as 302 Or App 188 (2020) 193

injury.” Id. A particular possible cause should not neces-

sarily be excluded “on the ground that the expert cannot

describe the precise mechanism of causation or point to sta-

tistical studies of cause and effect.” Id.

The court in Marcum described the factors relied on

by the plaintiff’s expert, including his own clinical experi-

ences and observations, a review of medical literature, the

suddenness of the onset of the plaintiff’s symptoms after

the injection, and the elimination of other potential causes.

Id. The court explicitly rejected the defendant’s view that

the expert’s testimony must be excluded in the absence of

a well-understood mechanism of cause or published studies

and acceptance of the particular theory of causation by the

medical community. Id. at 250-51. The court concluded that

the plaintiff had made an adequate showing of a scientifi-

cally valid reason for “ruling in” gadolinium extravasation

as a potential cause of her vasospastic disorder. Id.

As in Marcum, the focus of this appeal is on the

narrow question of the admissibility of scientific evidence of

medical causation—specifically on whether the trial court

erred in concluding that the opinions of plaintiffs’ experts,

who believed that physical trauma should be included among

potential causes in a differential diagnosis of fibromyalgia,

were scientifically valid in the absence of consensus in the

medical community that physical trauma can cause fibro-

myalgia. The trial court’s rationale here for excluding the

disputed evidence was that, in the absence of concurrence

in the medical community as to a theory of causation, the

theory is not scientifically valid.

We disagree with the trial court. As the court said

in Marcum, the general acceptance of a theory of causation

in the medical community is certainly relevant to the deter-

mination of the scientific validity of a theory, but its absence

is not disqualifying. Id. at 250-53 (absence of corroboration

of the theory of medical causation through studies and com-

parisons is not a basis for exclusion of a theory of causation

that is biologically plausible); see Jennings, 331 Or at 308-09

(although the degree of acceptance in the relevant commu-

nity is a factor under O’Key, the admissibility of scientific

evidence does not depend on peer acceptance or publication);

194 Miller v. Elisea

Kennedy v. Eden Advanced Pest Technologies, 222 Or App

431, 446, 193 P3d 1030 (2008) (a difference of opinion in the

scientific community alone is not a basis to exclude scientific

evidence).

Here, plaintiffs’ experts supported their theory that

physical trauma can cause fibromyalgia with evidence from

their own clinical experience that there is a high correlation

between physical trauma and fibromyalgia, peer-reviewed

medical literature, and studies describing a possible neuro-

logical mechanism of causation. Freeman, an epidemiologist,

described the process by which he determines whether a fac-

tor belongs in the causal framework, including an analysis

of “plausibility,” temporal relationship, and alternative

explanations. In addressing plausibility, Freeman described

a condition known as central sensitization, thought to be

a mechanism of fibromyalgia. The condition, recognized

in the medical literature and thought to be brought on by

trauma, exists when the brain and spinal cord interpret

a normally nonpainful stimulus as painful. Freeman also

addressed the temporal relationship of Sherri’s fibromyalgia

to the car accident, and explained that Sherri’s development

of the condition was well within the typical time frame for

the development of fibromyalgia after a traumatic event.

Freeman also explained that, although Sherri’s medical his-

tory showed that she had several preexisting conditions that

were potentially related to central sensitization and “was

somewhat fragile,” until the accident, there was no record of

escalating and increasingly frequent complaints of spread-

ing pain, as characteristic of fibromyalgia.

Plaintiffs’ evidence is of the type that the court in

Jennings and Marcum said is scientifically valid under the

Brown/O’Key factors. It is true that defendant’s witness,

Dr. Wolfe, contradicted Freeman, based on his own conclu-

sion that there is no consensus in the medical community

as to a connection between physical trauma and fibromyal-

gia, and his own conclusion that evidence to date showing

a relationship between the two is unreliable because it has

depended on patient self-reporting. Those issues are rele-

vant but are for the trier of fact to consider in weighing the

evidence; they are not dispositive in the court’s function as

Cite as 302 Or App 188 (2020) 195

a gatekeeper to admit or exclude expert evidence. O’Key,

321 Or at 301 n 18 (“A trial court, acting as a gatekeeper,

does not sit as a trier of fact to determine which side has

presented the more credible (or more persuasive) expert or

scientific evidence.”). Rather, the trial court’s function was

to determine whether the offered evidence was based on sci-

entifically valid principles. Id. at 303. We conclude here that

it was. The trial court therefore erred in excluding the testi-

mony of Brown and Freeman, and we reverse the judgment.

Reversed and remanded.