# Christophersen v. Allied-Signal Corp. > Court of Appeals for the Fifth Circuit · August 15, 1991 · 939 F.2d 1106 URL: https://www.frixlaw.com/law-library/cases/8991725 ## Case - **Full name:** Rosemarie CHRISTOPHERSEN, Surviving Spouse of Albert Roy Christophersen, and Steven Roy Christophersen v. ALLIED-SIGNAL CORPORATION, Inco Alloys International, Inc., United Catalysts, Inc., the Hall Chemical Company, Marathon Manufacturing Company, and CP Chemicals, Inc. - **Court:** Court of Appeals for the Fifth Circuit - **Decided:** August 15, 1991 - **Citations:** 939 F.2d 1106; 1991 WL 154204 - **Precedential status:** Published - **Opinion:** Dissent by King - **Judges:** Barksdale, Clark, Davis, Duhé, Garwood, Higginbotham, Johnson, Jolly, Jones, King, Reavley, Smith, Whom, Wiener - **Cited by:** 136 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Abrogated on other grounds by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8991725 ## How later opinions describe it (automated extraction) - holding, in a pre-Daubert decision, that if the "expert's methodology is well founded, the nature of the expert's conclusion is generally irrelevant [to a determination of its admissibility], even if it is controversial or unique" - holding in a pre-Daubert decision that if the expert’s methodology is well-founded, the nature of the expert’s conclusion is generally irrelevant to a determination of its admissibility even if it is controversial or unique - holding that the district court did not abuse its discretion in excluding an expert’s opinion that was based on insufficient data regarding the dosage of a harmful substance and the duration of exposure to that substance - holding that review of a district court’s decisions regarding admissibility of scientific expert testimony is under a clearly erroneous standard - concluding that an “M.D. degree ... alone is not enough to qualify [an expert] to give an opinion on every conceivable medical question.” ## Opinion text KING, Circuit Judge, with whom, REAVLEY, JOHNSON and WIENER, Circuit Judges, join dissenting: I concur fully in Judge Reavley's thorough and forceful dissent, and I agree with Chief Judge Clark’s careful analysis of Rules 702 and 703. I write separately to emphasize what I perceive to be the message and import of the majority opinion. The tremendous impact of the majority opinion comes not from the opinion itself, but from the simple fact that it could be written at all in the face of the summary judgment record described with such care by Judge Reavley. The juxtaposition of the majority opinion and the record in this case sends a clear message to the district courts in this circuit. Henceforth, a dispute among qualified experts as to the appropriate scientific methodology or reasoning that an expert in the particular field should use to connect the facts to his conclusions is to be resolved by the district judge. If the district judge resolves this aspect of the battle among the experts by concluding that the plaintiff’s expert has employed a methodology or reasoning which has not gained general acceptance in the scientific community, the case is to be terminated before trial. The jury will no longer be the arbiter of disputes over alternative forms of scientific methodology or reasoning. Lest anyone misunderstand, at root this is not a case about the Federal Rules of Evidence, albeit that two of them may have been mangled in the process. It is instead about the outcomes in toxic tort cases. 1 What the majority is saying is that in its view, the outcomes in toxic tort cases that have been left to the jury have too often *1137 been unacceptable. The majority’s solution is to re-write the Federal Rules of Evidence, which have been on the books for more than fifteen years and which, implicitly, have too often been misapplied by “our able trial colleagues.” In terms of its practical impact, today’s decision will require a penurious plaintiff represented by a personal injury lawyer on a contingent fee basis, already limited in investigative and expert resources, to pass a preliminary mini-trial on his expert’s methodology. At such a mini-trial, the plaintiff will be exposed to all of the industry’s heavy artillery, and may be at the receiving end of a district court ruling that will eviscerate his case. To compound the injury, because the majority has conveniently used the hook of the Federal Rules of Evidence, rather than openly announcing a new principle of federal substantive law, 2 the district court’s ruling will be reviewed under the manifestly erroneous standard. Plaintiffs attempting to establish liability in areas in which scientific methodology or reasoning is not yet well-established will face a nearly insurmountable burden. The result will be to deprive plaintiffs with possibly meritorious claims of a jury’s assessment of their right to recovery. As Judge Reavley and Chief Judge Clark make abundantly clear, the majority disregards the plain language of Rules 702 and 703 in its zeal to approve the district court’s dismissal of the plaintiff’s evidence in this case. Based on an intellectual elitism that prefers to entrust scientific evaluation to a judge, trained in law, rather than to the good sense of the community, the majority judicially amends the Federal Rules of Evidence in order to deprive the plaintiff of his or her day in court. Before today’s decision, I should have thought that a dispute among qualified experts would preclude, not mandate, summary judgment. The majority, so willing to decry judicial activism in other contexts such as prison overcrowding or supervision over schools, engages in the worst sort of judicial legislation. Undoubtedly, modern toxic tort litigation presents novel, challenging problems for the courts. Such cases may encompass massive numbers of plaintiffs, may involve scientific disputes which the courts are sometimes ill-suited to resolve, and may cause severe and perhaps unwise economic disruptions. If the Federal Rules of Evidence are inadequate in this context, however, then Congress, who enacted them, is the proper branch to amend or repeal them. If a federal substantive rule needs to be devised to supplant state law criteria for recovery, then Congress is the proper branch to devise it. But at least until now, the decisions when and under what circumstances corporate America or its insurers pay in the area of toxic torts have not been vested by the Constitution or the Supreme Court in federal judges. Those decisions have been determined by state law, as applied by juries. Today’s decision places a far greater hurdle in the path of toxic tort plaintiffs in federal court than such plaintiffs face in a *1138 state forum. This lack of congruence with the state courts in cases dependent on our diversity jurisdiction is fundamentally at odds with the Supreme Court’s decision in Eñe. As a result, we encourage reverse forum shopping and deprive plaintiffs of the substantive rights that should be available to them under state law. The majority, in its haste to achieve more acceptable results, tramples on fundamental Constitutional principles that one might have expected this court, above all others, to hold dear — the separation of powers between Congress and the federal courts, the right to a jury trial and the role of the states in our federal system. With the mandate of neither Congress nor the Supreme Court, we today create federal substantive law, through the technique of amending the Federal Rules of Evidence, in order to tilt toxic tort litigation in favor of defendants. Such result-oriented decision-making can only erode respect for the federal judiciary. . Because the majority employs the Federal Rules of Evidence in its mission, however, one can reasonably predict that today's new rules will wreak havoc in many other types of cases as well. . I recognize that the application of a rule of evidence can have a determinative impact on the outcome of a case without being appropriately considered a rule of substantive law. But the interpretation of Rules 702 and 703 announced today goes beyond the proper scope of a rule of evidence because it dramatically affects substantive rights in whole categories of cases. For example, there are diseases that are sufficiently uncommon as to be relatively unexplored in the scientific community and for which all that a plaintiff will be able to offer is testimony based on a considered medical hypothesis as to causation, not a methodology or reasoning that is generally accepted in the relevant scientific community. There are other diseases that may be increasingly common, such as asbestos-induced mesothelioma was many years ago, but are still in early stages of scientific discovery and for which all that a plaintiff again will be able to offer is testimony based on a considered medical hypothesis as to causation. Even though qualified experts for these plaintiffs may be of the opinion that causation has been established to a reasonable medical probability, today’s decision on Rules 702 and 703 precludes recovery for these plaintiffs in federal court because these experts may be employing a methodology or reasoning that has yet to gain general acceptance in the scientific community. The Texas state courts would clearly permit such a case to go to trial and the jury to assess the weight and sufficiency of the plaintiff's evidence. As newly constructed by the majority, Rules 702 and 703 have crossed the line between rules of evidence and principles of substantive law. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8991725. Public record. Not legal advice.