Petition for Writ of Certiorari — Cynthia Madej, et vir, Petitioners v. Jeff Maiden, Athens County Engineer
Supreme Court briefAug 21, 2020
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App. 1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0054p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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CYNTHIA MADEJ; ROBERT MADEJ,
Plaintiffs-Appellants,
v.
No. 18-4132
JEFF MAIDEN, Athens County
Engineer,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 2:16-cv-00658—Edmund A. Sargus, Jr.,
District Judge.
Argued: October 22, 2019
Decided and Filed: February 24, 2020
Before: GUY, BUSH, and MURPHY, Circuit Judges.
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COUNSEL
ARGUED: David T. Ball, ROSENBERG & BALL CO.,
LPA, Granville, Ohio, for Appellants. Molly Gwin,
ISAAC, WILES, BURKHOLDER & TEETOR, LLC, Columbus, Ohio, for Appellee. ON BRIEF: David T. Ball,
ROSENBERG & BALL CO., LPA, Granville, Ohio, Fazeel S. Khan, HAYNES, KESSLER, MYERS & POSTALAKIS, INC., Worthington, Ohio, for Appellants.
App. 2
Molly Gwin, Maribeth Meluch, ISAAC, WILES,
BURKHOLDER & TEETOR, LLC, Columbus, Ohio, for
Appellee. Donald Horak, DIOCESE OF STEUBENVILLE, Athens, Ohio, for Amici Curiae.
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OPINION
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MURPHY, Circuit Judge. Cynthia Madej is very
ill. On top of her other ailments, her doctors say she
has “multiple chemical sensitivity.” She thus goes to
great lengths to avoid everyday materials that she believes will trigger harmful reactions like burning eyes
and throat, dizziness, or nausea. This suit arose because Ms. Madej fears that the use of asphalt on a road
near her home will cause more harm still. She and her
husband sued the county engineer to stop the roadwork, alleging violations of the Fair Housing Amendments Act of 1988 and the Americans with Disabilities
Act of 1990. Applying the well-known rules from Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), the district court excluded the opinions of the
Madejs’ experts that the asphalt would injure Ms.
Madej. Without expert causation evidence, the court
added, the Madejs could not withstand summary judgment. As far as we are aware, “no district court has
ever found a diagnosis of multiple chemical sensitivity
. . . to be sufficiently reliable to pass muster under
Daubert.” Gabbard v. Linn-Benton Hous. Auth., 219
F. Supp. 2d 1130, 1134 (D. Or. 2002), aff ’d sub nom.
Wroncy v. Or. Dep’t of Transp., 94 F. App’x 559 (9th Cir.
App. 3
2004). We thus see no abuse of discretion in the district
court’s evidentiary ruling and affirm its judgment for
the county engineer.
I.
Cynthia Madej has suffered through decades of
debilitating maladies, including chronic fatigue syndrome, fibromyalgia, anemia, and severe vitamin
deficiencies. Since 1997, the Social Security Administration has found her completely disabled and entitled to benefits. Two of her doctors, Barbara Singer (a
primary-care physician) and Allan Lieberman (an environmental-medicine specialist), have opined that she
also suffers from multiple chemical sensitivity, which
is not a disease recognized by the World Health Organization or the American Medical Association. Dr.
Lieberman takes the view that the phrase “multiple
chemical sensitivity” (like the word “headache”) is
more description than diagnosis because it conveys
that many chemicals negatively affect Ms. Madej’s
health. Ms. Madej says that she has reacted to countless substances, including fertilizers, pesticides, fragrances, cleaning products, glues, paint, newsprint,
polyurethane, varnish, vinyl, gas, oil, propane, rubber,
plastics, carpet, wood, and new clothes. Her reactions
have included burning eyes and throat, chest tightness, shortness of breath, chronic headaches, nausea,
and dizziness.
Ms. Madej takes extraordinary measures to avoid
the common materials that trigger these harmful
App. 4
reactions. She is effectively homebound, leaving her
home maybe a couple of times per year, largely for medical appointments. She also sleeps in a structure on her
property that is lined with glass (floors, walls, and ceiling) to avoid the wood in her house. She stays warm in
this glass structure over the winter by using a string
of incandescent light bulbs (supplemented by glass
bottles filled with hot filtered water on extremely cold
nights).
In 2010, given her sensitivities, Ms. Madej and her
husband, Robert, moved to a home in rural Athens
County, Ohio. Located some 280 feet off of Dutch Creek
Road, their home was built for another individual with
chemical sensitivities. After moving there, the Madejs
gave a letter from Dr. Lieberman to the existing Athens
County Engineer asking for advance notice of planned
chemical sprayings within three blocks of their home.
The letter stated that “[e]xposure to even small doses
of certain substances, including “herb[i]cides, pesticides, fertilizers, oil, road tar, asphalt, diesel exhaust
and other petroleum and roadway materials, could create a life-threatening situation [for Ms. Madej].”
A new county engineer, Jeff Maiden, took office in
January 2013. In 2014, when Maiden’s office paved a
nearby road, Ms. Madej reportedly experienced headaches, throat and eye burning, and chest tightness for
months. So, beginning in the spring of 2015, her husband repeatedly called the office to remind Maiden’s
staff of his wife’s poor health. Each time, employees responded that the office had no maintenance plans for
Dutch Creek Road.
App. 5
In March 2015, however, dozens of residents had
petitioned the county commissioners to improve this
pothole-ridden road. Maiden had also received more
complaints about the dust on Dutch Creek Road than
the dust on any other road in the county. When cars
drove on the road in the summertime, billowing dust
turned nearby foliage brown. One resident even vandalized a road sign to read “Dust Creek Road” rather
than “Dutch Creek Road.”
To address these complaints, Maiden decided to
“chip seal” the road. The chip-seal process helps maintain rural roads and prevent dust. Workers spray a
thin layer of heated asphalt liquid on the surface, place
small stones or “chips” on top of the liquid, compress
the chips into the liquid, and sweep excess chips off the
roadway.
Maiden’s staff recalled Ms. Madej having asphalt
allergies. In late August 2015, therefore, an employee
informed the Madejs that the office planned to start
work on the road the next day. The Madejs objected.
Maiden agreed to delay things until after a public
meeting at which the Madejs could air their concerns
to the community. That same day, though, workers
patched two smaller areas of the road, located a half
mile from the Madejs’ home. Even this work reportedly
left Ms. Madej feeling ill.
On September 10, the public meeting generated a
standing-room-only crowd. Maiden discussed the roadwork while Mr. Madej explained his wife’s poor health.
Neighbors proposed various accommodations—such as
App. 6
paying for the Madejs’ hotel or helping them stay at a
campsite during the work—to no avail. Seeing no room
for compromise, Maiden chose to start the roadwork on
September 14. The parties dispute whether Mr. Madej
had told Maiden at or before this meeting about his research into fixing the road with non-asphalt alternatives to chip seal. But we will assume that he did so
given the case’s procedural posture.
On September 15, the Madejs brought a tort suit
against Maiden in his official capacity. A state court
granted preliminary relief halting any chip-seal work
within a mile of the Madejs’ home. The Madejs later
amended their complaint to assert claims under the
Fair Housing Amendments Act of 1988 and the Americans with Disabilities Act of 1990. Maiden removed the
suit to federal court. He then moved to exclude the
opinions of the Madejs’ three doctors: her two treating
doctors (Drs. Singer and Lieberman) and an expert (Dr.
John Molot). Maiden also sought summary judgment
on all claims.
The district court initially held that the opinions
of the Madejs’ doctors did not satisfy the reliability requirements of Federal Rule of Evidence 702. Madej v.
Maiden, No. 2:16-cv-658, 2018 WL 5045768, at *4–14
(S.D. Ohio Oct. 17, 2018). Invoking the causation rules
from toxic-tort cases, the court noted that the Madejs
must show both general causation (that the asphalt in
chip seal can cause the type of injury that a plaintiff
alleges) and specific causation (that this asphalt will,
in fact, cause Cynthia Madej’s injury). Id. at *4–5. The
court found that the doctors did not offer reliable
App. 7
opinions on specific causation: that chip seal would
harm Ms. Madej. Id. at *5–14.
The court next held that the Madejs’ lack of expert
causation evidence warranted summary judgment for
Maiden. Id. at *14–16. It noted that the Fair Housing
Amendments Act requires a reasonable accommodation for a person with a handicap when that accommodation is necessary to give the person an equal
opportunity to enjoy a dwelling. Id. at *15. Finding
that this “necessary” element contains a causation test,
the court reasoned that the Madejs could not show that
chip seal would harm Ms. Madej and so could not show
any need for alternatives. Id. The court rejected the
Madejs’ claim under the Americans with Disabilities
Act for an identical reason. Id.
The Madejs now appeal the district court’s evidentiary ruling and its rejection of their federal claims.
They have abandoned their state-law claims. And
while they separately challenge the court’s rejection of
what they call their “injunction” count, an injunction is
a remedy, not a claim. If they cannot show “actual success” on their claims, they cannot obtain a permanent
injunction. Jolivette v. Husted, 694 F.3d 760, 765 (6th
Cir. 2012) (citation omitted).
App. 8
II.
The opinion testimony of a doctor (whether an expert or a treating physician) generally must pass muster under Rule 702. See Gass v. Marriott Hotel Servs.,
Inc., 558 F.3d 419, 426 (6th Cir. 2009). Before a “witness who is qualified as an expert by knowledge, skill,
experience, training, or education may” testify, the
party who seeks to call the witness must prove: (1) that
“the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue”; (2) that “the
testimony is based on sufficient facts or data”; (3) that
“the testimony is the product of reliable principles and
methods”; and (4) that “the expert has reliably applied
the principles and methods to the facts of the case.”
Fed. R. Evid. 702(a)–(d). These factors, in short, require
“scientific testimony” to be both “relevant” and “reliable.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,
147 (1999) (quoting Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579, 589, (1993)). A district court must
perform a “gatekeeping role” to ensure that the testimony meets those mandates, Daubert, 509 U.S. at 597,
and we review its conclusion for an abuse of discretion,
Kumho Tire, 526 U.S. at 142, 158.
The Madejs assert that the district court committed both relevancy and reliability errors when undertaking this gatekeeping role. As for relevancy, they
argue that the district court mistakenly required them
to meet common-law tort standards that do not apply
to their federal statutory claims. As for reliability, they
argue that their doctors had a sufficient factual basis
App. 9
for opining that the chip seal would harm Ms. Madej.
Neither argument warrants reversal.
A.
Relevancy
Rule 702’s first condition requires that an “expert’s
scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or
to determine a fact in issue.” Fed. R. Evid. 702(a).
Daubert tells us that “[t]his condition goes primarily to
relevance.” 509 U.S. at 591. “Expert testimony which
does not relate to any issue in the case is not relevant
and, ergo, non-helpful.” Id. (citation omitted). Or, as we
have said, “[t]he issue with regard to expert testimony
is not the qualifications of a witness in the abstract,
but whether those qualifications provide a foundation
for a witness to answer a specific question.” Berry v.
City of Detroit, 25 F.3d 1342, 1351 (6th Cir. 1994).
Whether an opinion “relates to an issue in the case” or
helps a jury answer a “specific question” depends on
the claims before the court. Thus, when analyzing the
relevancy of expert testimony, a court should consider
the elements that a plaintiff must prove.
Here, the Madejs argue that the district court focused on irrelevant causation standards from state tort
law, not on the standards for their federal statutory
claims. They have a point. The court said things like
the following: “In cases involving exposure to toxic substances, the plaintiff ‘must establish both general and
specific causation through proof that the toxic substance is capable of causing, and did cause, the
App. 10
plaintiff ’s alleged injury.’ ” Madej v. Maiden, No. 2:16cv-658, 2018 WL 5045768, at *4 (S.D. Ohio Oct. 17,
2018) (quoting Pluck v. BP Oil Pipeline Co., 640 F.3d
671, 676–77 (6th Cir. 2011)). But Pluck and other cited
cases addressed tort claims. E.g., Pluck, 640 F.3d at
674–77. This is not a toxic-tort case. It involves claims
under the Fair Housing Amendments Act and the
Americans with Disabilities Act.
Ultimately, though, the Madejs’ argument that the
district court wrongly relied on toxic-tort cases does
them no good. When we turn to the federal statutes on
which they rely, we are not even sure that the Madejs
have stated cognizable claims. At the least, these statutes require the Madejs to show that the use of chip
seal on Dutch Creek Road will cause Ms. Madej harm.
In the end, then, the district court properly asked
whether the doctors’ opinions were reliable enough to
help answer this causation question for these federal
claims. See Berry, 25 F.3d at 1351.
1. Fair Housing Amendments Act. The Madejs allege that the county engineer violated the Fair Housing Amendments Act by rejecting their proposed
“reasonable accommodation”: using alternatives to
chip seal that do not contain asphalt. This Act
“amended the Fair Housing Act to bar housing discrimination against the handicapped.” Davis v. Echo Valley
Condo. Ass’n, 945 F.3d 483, 489 (6th Cir. 2019) (citing
42 U.S.C. § 3604(f )). Section 3604(f ) makes it unlawful
“[t]o discriminate against any person . . . in the provision of services or facilities in connection with [a]
dwelling, because of a handicap of ” that person. 42
App. 11
U.S.C. § 3604(f )(2)(A). It defines “discrimination” to include “a refusal to make reasonable accommodations
in rules, policies, practices, or services, when such accommodations may be necessary to afford such person
equal opportunity to use and enjoy a dwelling.” Id.
§ 3604(f )(3)(B).
Before deciding if the Madejs’ claim requires them
to prove any type of causation, we must express uncertainty over whether the claim even falls within the Act.
As its name implies, the Fair Housing Amendments
Act does not bar discrimination in all services; it bars
discrimination in the “provision of services or facilities
in connection with [a] dwelling.” Id. § 3604(f )(2) (emphasis added). In other contexts, the Supreme Court
has viewed the phrase “in connection with” as “essentially ‘indeterminat[e]’ because connections, like relations, ‘stop nowhere.’ ” Maracich v. Spears, 570 U.S. 48,
59 (2013) (citation omitted). The Court has thus told us
to read this relational text as adopting the “limiting
principle” most “consistent with the structure of the”
statute. Maracich, 570 U.S. at 60; see also Chadbourne
& Parke LLP v. Troice, 571 U.S. 377, 387–88 (2014).
Lower courts have done just that in this housing
context. They have refused to extend the Fair Housing
Act “to any and every municipal policy or service that
touches the lives of residents” because that view would
“expand that Act into a civil rights statute of general
applicability rather than one dealing with the specific
problems of fair housing opportunities.” Ga. State Conference of the NAACP v. City of LaGrange, 940 F.3d 627,
633 (11th Cir. 2019) (citation omitted). The Fourth
App. 12
Circuit, for example, rejected a claim that public agencies violated another subsection, 42 U.S.C. § 3604(b),
when selecting a new highway’s path. Jersey Heights
Neighborhood Ass’n v. Glendening, 174 F.3d 180, 192–
94 (4th Cir. 1999). The court reasoned that treating the
highway siting as a “housing ‘service’“ was a “strained
interpretation of the word.” Id. at 193 (citation omitted); see also A Soc’y Without a Name v. Virginia, 655
F.3d 342, 349–50 (4th Cir. 2011).
Here too, it is not obvious that roadwork on Dutch
Creek Road amounts to a “provision of services” “in
connection with” the Madejs’ home. 42 U.S.C.
§ 3604(f )(2); compare Bullock v. City of Covington, No.
16-56-HRW, 2016 WL 6694486, at *6 (E.D. Ky. Nov. 14,
2016), aff ’d 698 F. App’x 305 (6th Cir. 2017), with Vance
v. City of Maumee, 960 F. Supp. 2d 720, 732–33 (N.D.
Ohio 2013). Yet the county engineer did not raise this
argument on appeal, so we merely flag it for future
cases, lest our opinion be taken as impliedly accepting
the validity of the Madejs’ claim.
Even if the Act applies, the Madejs still must show
that their “accommodation” (a chip-seal alternative
that does not use asphalt) is “necessary to afford [Ms.
Madej] equal opportunity to use and enjoy” her home.
42 U.S.C. § 3604(f )(3)(B). We have noted that this “necessity element” mandates “a causation inquiry that
examines whether the requested accommodation or
modification would redress injuries that otherwise
would prevent a disabled resident from receiving the
same enjoyment from the property as a non-disabled
person would receive.” Hollis v. Chestnut Bend
App. 13
Homeowners Ass’n, 760 F.3d 531, 541 (6th Cir. 2014).
In other words, “[n]ecessity functions as a but-for causation requirement, tying the needed accommodation
to equal housing opportunity.” Vorchheimer v. Philadelphian Owners Ass’n, 903 F.3d 100, 110 (3d Cir. 2018).
In this case, if the asphalt in chip seal would not
cause Ms. Madej’s negative reactions, the Madejs could
not show that the roadwork would create an unequal
opportunity for her to enjoy her home. Without that
causal connection, the Madejs’ proposed alternatives
would also not be necessary (that is, “ ‘indispensable,’
‘essential,’ something that ‘cannot be done without’ ”)
to redress what turned out to be non-existent harms.
Davis, 945 F.3d at 490 (quoting Cinnamon Hills Youth
Crisis Ctr. v. St. George City, 685 F.3d 917, 923 (10th
Cir. 2012)).
2. Americans with Disabilities Act. The Madejs
also allege that the county engineer violated the Americans with Disabilities Act by refusing their same proposed “reasonable modification”: using alternatives to
chip seal that do not contain asphalt. Their textual
support for this theory has been a moving target. The
Americans with Disabilities Act forbids disability discrimination in employment (Title I), public services
(Title II), and public accommodations (Title III). The
complaint alleged that the use of chip seal violated Title III’s reasonable-modification rules for public accommodations. 42 U.S.C. § 12182(b)(2)(A)(ii). But the Act
defines “public accommodation” to cover “private entities,” not public entities. Id. § 12181(7); Sandison v.
Mich. High Sch. Athletic Ass’n, Inc., 64 F.3d 1026, 1036
App. 14
(6th Cir. 1995). When the county engineer made this
point in the district court, the Madejs switched to Title
II. On appeal, however, they do not tell us the title on
which they rely. We assume they mean to invoke Title
II.
Title II provides that “no qualified individual with
a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits
of the services, programs, or activities of a public entity,
or be subjected to discrimination by any such entity.”
42 U.S.C. § 12132. Unlike Title III or the Fair Housing
Amendments Act, Title II does not expressly define
“discrimination” to include a refusal to make a reasonable accommodation for a person with a disability (in
addition to intentional discrimination). Wis. Cmty.
Servs. v. City of Milwaukee, 465 F.3d 737, 750 (7th Cir.
2006) (en banc). The Attorney General has instead
passed a regulation imposing that mandate: “A public
entity shall make reasonable modifications in policies,
practices, or procedures when the modifications are
necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that
making the modifications would fundamentally alter
the nature of the service, program, or activity.” 28
C.F.R. § 35.130(b)(7)(i). Like the Attorney General, we
have read § 12132 to cover “claims for a reasonable accommodation.” Roell v. Hamilton County, 870 F.3d 471,
488 (6th Cir. 2017). Yet we have also said that a Title
II “plaintiff must show that the defendants intentionally discriminated against him because of his disability.” Smith v. City of Troy, 874 F.3d 938, 947 (6th Cir.
App. 15
2017). We need not reconcile these cases here, as the
county engineer does not challenge the reasonablemodification regulation under the statute. So we take
as a given that “discrimination” includes a failure to
accommodate.
Even so, it is not clear how the Madejs’ claim fits
within Title II. Section 12132 indicates that no “qualified individual with a disability” shall “by reason of
such disability” (1) “be excluded from participation in
or be denied the benefits of the services, programs, or
activities of a public entity,” or (2) “be subjected to discrimination by any such entity.” We have read even the
“subjected to discrimination” text to require discrimination that “relate[s] to services, programs, or activities” of a public entity. Johnson v. City of Saline, 151
F.3d 564, 569 (6th Cir. 1998); cf. Brumfield v. City of
Chicago, 735 F.3d 619, 627–29 (7th Cir. 2013). And we
have distinguished the “services, programs, or activities” covered by § 12132 from the noncovered “facilities” in which they are conducted. Babcock v. Michigan,
812 F.3d 531, 535–40 (6th Cir. 2016).
How does this caselaw play out here? It is debatable. The Madejs primarily allege that the use of chip
seal will deny Ms. Madej the benefits of her home, but
her private dwelling is not a “service, program, or activity” of a public entity. When questioned on this point
at argument, counsel responded that the roadwork
qualifies as a “service” and that the use of chip seal
would deny Ms. Madej the “benefit” of the road. Those
theories, too, raise difficult interpretive questions. Babcock holds that “facilities” (in contrast to “services,
App. 16
programs, or activities”) generally are not covered by
§ 12132, 812 F.3d at 535–40, and regulations define “facility” to include “roads,” 28 C.F.R. § 35.104. But Babcock involved the “design features in a building” and
suggested that those facts might distinguish it from a
case that found a transportation facility (a sidewalk)
covered. 812 F.3d at 538 n.5 (discussing Frame v. City
of Arlington, 657 F.3d 215, 221 (5th Cir. 2011) (en
banc)). The Babcock plaintiff also did not argue (as the
Madejs suggested here) that the construction of a facility can itself qualify as a “service.” Id. Because the
county engineer raised none of these issues on appeal,
we again merely flag them for future cases and will assume that Title II extends to the denial of the benefits
of Dutch Creek Road.
Nevertheless, the Madejs’ claim again requires
proof of causation. The regulation compels reasonable
modifications “when the modifications are necessary to
avoid discrimination on the basis of disability.” 28
C.F.R. § 35.130(b)(7)(i) (emphasis added). Like the Fair
Housing Amendments Act’s text, this text “links necessity to a causation inquiry,” albeit one with a different
object. Wis. Cmty. Servs., 465 F.3d at 752. While the
Fair Housing Amendments Act asks whether an accommodation is needed for an “equal opportunity” to
enjoy a home, 42 U.S.C. § 3604(f )(3)(B), the regulation
asks whether the modification is needed “to avoid discrimination on the basis of disability,” 28 C.F.R.
35.130(b)(7)(i). Given our prior assumptions, we read
this text to be satisfied in this case if a plaintiff
“show[s] that, ‘but for’ [her] disability, [she] would have
App. 17
been able to access the services or benefits desired.”
Wis. Cmty. Servs., 465 F.3d at 752. Here, then, if the
asphalt in chip seal would not cause Ms. Madej’s reactions, the Madejs could not show that the chip seal
would deny her access to the road. Without that causal
connection, the Madejs’ proposed modifications would
not be necessary “to avoid” that non-existent denial of
access.
*
*
*
In sum, while the Madejs are correct that these
laws do not codify a toxic-tort regime, the laws require
proof of causation all the same. This conclusion—that
the Madejs must prove that the chip seal will cause Ms.
Madej harm—leads to one final question: Did the district court correctly hold that they needed expert causation testimony to survive summary judgment? See
Madej, 2018 WL 5045768, at *14. Courts have been unclear about whether this question raises a matter of
substance (and so depends on the meaning of the federal laws) or a matter of procedure (and so depends on
the meaning of Federal Rule of Civil Procedure 56). Cf.
Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938).
On the one hand, some cases seem to treat this
question as substantive by asking whether the plaintiff ’s claim should be read to require expert testimony.
When considering tort suits under our diversity jurisdiction, for example, we have held that a party needs
expert causation testimony if a state supreme court
has imposed that mandate on its courts. Vaughn v.
Konecranes, Inc., 642 F. App’x 568, 578 (6th Cir. 2016);
App. 18
Pluck, 640 F.3d at 677; Kolesar v. United Agri Prods.,
Inc., 246 F. App’x 977, 981–82 (6th Cir. 2007). While
these cases overlook this initial process-versussubstance question, other courts that have addressed
the question have likewise found it substantive. See
Wallace v. McGlothan, 606 F.3d 410, 419 (7th Cir.
2010); In re Lipitor (Atorvastatin Calcium) Mktg.,
Sales Practices & Prods. Liab. Litig., 227 F. Supp. 3d
452, 467–69 (D.S.C. 2017), aff ’d 892 F.3d 624, 646 (4th
Cir. 2018). Under this view, whether the Madejs need
expert causation evidence would turn on our interpretation of their two federal claims.
On the other hand, none of these cases accounts
for Shady Grove Orthopedic Associates, P.A. v. Allstate
Ins. Co., 559 U.S. 393 (2010). That decision directs
courts to consider “whether the Federal Rules of Civil
Procedure answer the question in dispute” before analyzing anything else. Gallivan v. United States, 943
F.3d 291, 293 (6th Cir. 2019). And Rule 56 does have
something to say on a question about the evidence
needed to create a fact issue for trial. Cf. McEwen v.
Delta Air Lines, Inc., 919 F.2d 58, 60 (7th Cir. 1990).
After all, it says that “[t]he court shall grant summary
judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). Under this view, the requirement that the
Madejs offer expert causation evidence would turn on
whether only that kind of evidence can create a factual
dispute that we would consider “genuine” under Rule
56.
App. 19
We leave this issue for another day too. The
Madejs’ counsel conceded at oral argument that they
do not challenge the district court’s ruling that they
need expert testimony on causation to survive summary judgment. If the court properly found their experts unreliable, it correctly granted summary
judgment on their federal claims. We end with that reliability ruling.
B.
Reliability
Two general factors (one about the standard of review, the other about precedent) show that the Madejs
face a daunting task in challenging the district court’s
conclusion that their three doctors provided unreliable
opinions under Federal Rule of Evidence 702. Start
with the standard of review. District courts have “considerable leeway in deciding in a particular case how
to go about determining whether particular expert testimony is reliable,” Kumho Tire, 526 U.S. at 152, and so
we will review that type of decision only for an abuse
of discretion, Nelson v. Tenn. Gas Pipeline Co., 243 F.3d
244, 248 (6th Cir. 2001). This deferential standard
makes sense because Daubert establishes a “flexible”
test that considers many indicia of reliability, some of
which may have more relevance than others depending
on the particular science and the particular scientist
before the court. Kumho Tire, 526 U.S. at 150 (quoting
Daubert, 509 U.S. at 594).
Turn to precedent. The Madejs’ doctors based their
opinions that asphalt would harm Ms. Madej in large
App. 20
part on their views that she suffers from multiple
chemical sensitivity. Many courts have held that similar expert testimony did not pass muster under Rule
702. As the Tenth Circuit noted, multiple chemical sensitivity “is a controversial diagnosis that has been excluded under Daubert as unsupported by sound
scientific reasoning or methodology.” Summers v. Mo.
Pac. R.R. Sys., 132 F.3d 599, 603 (10th Cir. 1997); see,
e.g., Bradley v. Brown, 42 F.3d 434, 438 (7th Cir. 1994);
Snyman v. W.A. Baum Co., No. 04 Civ. 2709, 2008 WL
5337075, at *1 (S.D.N.Y. Dec. 22, 2008), aff ’d 360 F.
App’x 251 (2d Cir. 2010); Gabbard v. Linn-Benton Hous.
Auth., 219 F. Supp. 2d 1130, 1134 (D. Or. 2002), aff ’d
sub nom. Wroncy v. Ore. Dep’t of Transp., 94 F. App’x
559 (9th Cir. 2004); Comber v. Prologue, No. 99-2637,
2000 WL 1481300, at *4–5 (D. Md. Sept. 28, 2000);
Coffey v. Cty. of Hennepin, 23 F. Supp. 2d 1081, 1086
(D. Minn. 1998); Zwillinger v. Garfield Slope Hous.
Corp., No. CV 94–4009, 1998 WL 623589, at *21–22
(E.D.N.Y. Aug. 17, 1998); Coffin v. Orkin Exterminating
Co., Inc., 20 F. Supp. 2d 107, 110–11 (D. Me. 1998);
Frank v. State of New York, 972 F. Supp. 130, 133–37
(N.D.N.Y. 1997); Sanderson v. Int’l Flavors and Fragrances Inc., 950 F. Supp. 981, 1001–02 (C.D. Cal.
1996); see also Kuxhausen v. Tillman Partners, L.P., 197
P.3d 859, 862–68 (Kan. Ct. App. 2008), aff ’d 241 P.3d
75 (Kan. 2010).
To prevail, therefore, the Madejs must establish
that the district court abused its discretion by declining to shun a mountain of precedent. That is a tall order. To be sure, most of these cases are over a decade
App. 21
old. That could be significant because “[s]cientific conclusions are subject to perpetual revision.” Daubert,
509 U.S. at 597. But “[l]aw lags science; it does not lead
it.” Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 674 (6th
Cir. 2010) (citation omitted). And the Madejs have not
shown that more recent scientific advancements have
led the scientific community to come to accept a multiple-chemical-sensitivity diagnosis, one of the relevant
reliability factors. See Kumho, 526 U.S. at 150. Instead,
their own doctors acknowledged that the diagnosis remains unrecognized by the American Medical Association and unlisted in the World Health Organization’s
International Classification of Diseases. Madej, 2018
WL 5045768, at *9.
Reviewing the district court’s decision against this
general backdrop, we find no reversible error in its exclusion of the opinions of the Madejs’ three experts on
more fact-specific grounds.
1. Dr. Molot. We begin with Dr. John Molot, the
Madejs’ expert. The district court could reasonably
conclude that his causation opinion was not “based
upon sufficient facts or data” or the “product of reliable
principles and methods . . . applied . . . reliably to the
facts of the case.” Tamraz, 620 F.3d at 670 (quoting Fed.
R. Evid. 702(b)–(d)); see Madej, 2018 WL 5045768, at
*5–8. Courts have repeatedly found opinions unreliable when they were based more on an expert’s “subjective belief ” than on an objective method that can be
tested. Tamraz, 620 F.3d at 670 (quoting Daubert, 509
U.S. at 590); see, e.g., Nelson, 243 F.3d at 254; Rosen v.
Ciba-Geigy Corp., 78 F.3d 316, 318 (7th Cir. 1996). As
App. 22
we have said, “[t]he ‘ipse dixit of the expert’ alone is not
sufficient to permit the admission of an opinion.”
Tamraz, 620 F.3d at 671 (citation omitted).
Dr. Molot’s opinion shares this defect. He opined
that asphalt would cause Ms. Madej to suffer harmful
reactions. When asked to list the chemicals that cause
those reactions, however, he responded: “I have no idea,
because there’s no way to test it. We can’t test. And I
get asked that question, well, which chemicals is it exactly, do you think? Nobody knows, including me.” He
thus did not observe Ms. Madej display any sensitivity
to asphalt because he did not conduct any objective
tests. Instead, he reaches his opinions about the chemicals causing a patient’s harmful reactions based
“[o]nly from the history of what the patient identifies”;
that is, his opinions rest “strictly on a subjective criteria of history and reported symptoms.” He also conceded that he controls for the possibility that other
chemicals might be the true root of a patient’s reactions based on the patient’s own self-reporting: “How
do you control for that? You know, patients make their
observations based on, I smelled this and it makes me
sick. And that’s all we have.”
Dr. Molot’s reliance on Ms. Madej’s opinions gave
the district court an adequate ground to find that he
did not “reliably rule out” non-asphalt causes for her
sensitivities. Tamraz, 620 F.3d at 674. Indeed, “lay
speculations on medical causality, however plausible,
are a perilous basis for inferring causality.” Rosen, 78
F.3d at 318. But that sort of speculation appears to undergird Dr. Molot’s opinion here. Not only that, the
App. 23
Madejs identify nothing suggesting that the relevant
scientific community would accept this subjective
method of proving causation “in their professional
work.” Id. So they failed to show that the “methodology
underlying [Dr. Molot’s] testimony is scientifically
valid.” Daubert, 509 U.S. at 592–93; cf. Summers, 132
F.3d at 604.
2. Dr. Lieberman. We next turn to Dr. Allan
Lieberman, the environmental-medicine specialist
who treated Ms. Madej from his clinic in Charleston,
South Carolina. The district court could reject Dr.
Lieberman’s opinion that asphalt (as opposed to other
items) would cause Ms. Madej’s sensitivities for the
same reasons that it rejected Dr. Molot’s opinion.
Madej, 2018 WL 5045768, at *10–14. Despite being Ms.
Madej’s treating physician for many years, Dr. Lieberman is not even sure he ever met her in person. She
visited his center one time in 1999 and was seen by
another doctor. Id. at *10. Instead, Dr. Lieberman
treated Ms. Madej only over the phone. So, for the most
part, Dr. Lieberman (like Dr. Molot) relied primarily on
Ms. Madej’s self-reporting to form his opinion concerning her sensitivities. What we have said about Dr.
Molot’s opinion thus fully applies to Dr. Lieberman’s
opinion too, with one exception.
The exception: At the initial 1999 visit, Dr. Lieberman’s colleague conducted a test of Ms. Madej, and she
reacted when he “plac[ed] a substance he described as
‘petroleum derived ethanol’ under her tongue.” Madej,
2018 WL 5045768, at *10. Yet Dr. Molot opined that
“testing for sensitivity using sublingual challenges”
App. 24
(under the tongue) “has not been documented as reliable for the diagnosis of chemical sensitivity.” And Dr.
Lieberman himself admitted that it was possible that
those test results would change over time. So the district court could reasonably conclude that this decadesold test did not fill in the gap in the doctors’ causation
testimony.
3. Dr. Singer. That leaves Dr. Barbara Singer, Ms.
Madej’s primary-care physician. The district court did
not abuse its discretion in finding her opinion unreliable because her “qualifications” did not “provide a foundation . . . to answer” this causation question. Berry, 25
F.3d at 1351; Madej, 2018 WL 5045768, at *8–10. When
a doctor’s opinion “strays from” the doctor’s “professional experience,” the opinion is “less reliable, and
more likely to be excluded under Rule 702.” Gass, 558
F.3d at 427–28; United States v. Farrad, 895 F.3d 859,
884 (6th Cir. 2018). Dr. Singer’s opinion fits that bill.
As a primary-care physician, she conceded that “it’s not
my skill set to diagnose” multiple chemical sensitivity
and that she does not “know the criteria for diagnosing” that trait. When asked if she tested Ms. Madej for
sensitivity to asphalt, she responded: “I don’t even
know where we begin with that, if there are tests that
are accurate for that. That’s again in that chemical
sensitivity specialty that I don’t have.” Instead, she
formed her opinion that asphalt would harm Ms.
Madej only “[b]ecause she had the diagnosis of multiple chemical sensitivity from Dr. Lieberman.” Yet Dr.
Lieberman did not actually diagnose “multiple chemical sensitivity.” Unlike Dr. Molot, he does not view that
App. 25
phrase as a “diagnosis” since it is not a recognized disease. Instead, he calls it “a wonderful description of
what the patients have” just as “headache” and “muscle pain” describe the pain that patients feel. So Dr.
Singer’s opinion rested not only on another doctor’s
views, but also on an apparent misunderstanding of
those views.
*
*
*
All told, the district court did not abuse its discretion in finding the opinions of these doctors inadmissible. Because the Madejs do not challenge the need for
expert causation testimony, the absence of that evidence compels summary judgment for the Athens
County Engineer. That said, we second the district
court’s hope that the county engineer will give the
Madejs “notice far in advance of road work.” Madej,
2018 WL 5045768, at *16. But that is all we can do.
Our task is solely to answer the legal questions arising
out of the parties’ dispute. The policy questions about
how best to reconcile the needs of the residents who
travel Dutch Creek Road with the needs of Cynthia
Madej are for the county engineer and the local community to whom he answers.
We affirm.
App. 26
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
CYNTHIA MADEJ, et al.,
Plaintiffs,
v.
ATHENS COUNTY
ENGINEER
JEFF MAIDEN,
Defendant.
Case No. 2:16-cv-658
CHIEF JUDGE
EDMUND A.
SARGUS, JR.
Magistrate Judge
Chelsey M. Vascura
OPINION AND ORDER
(Filed Oct. 17, 2018)
This matter is before the Court on Plaintiffs Cynthia and Robert Madej’s (“Ms. Madej,” “Mr. Madej”, or
collectively, “Plaintiffs”) Motion for Partial Summary
Judgment (Pl.’s Mot. S.J., ECF No. 109), Defendant’s
memorandum in opposition (Def. Mem. Opp., ECF No.
119), Plaintiffs’ Reply (Pl. Reply, ECF No. 135), Plaintiffs’ motion in limine to exclude the testimony of Jonathan Raab (Pl. MIL, ECF No. 138), Defendant’s
response (Def. Response MIL, ECF No. 141), and Plaintiffs’ Reply (Pl. Reply MIL, ECF No. 143). Also before
the Court are Defendant’s Motion for Summary Judgment (Def. Mot. S.J., ECF No. 117), Plaintiffs’ memorandum in opposition (Pl. Mem. Opp., ECF No. 120),
Defendant’s Reply (Def. Reply, ECF No. 134), Defendant’s motion in limine to exclude the testimony of Dr.
John Molot (Def. MIL, ECF No. 106), Plaintiffs’
App. 27
response (Pl. Response MIL, ECF No. 126), Defendant’s
Reply (Def. Reply MIL, ECF No. 134), Defendant’s motion in limine to exclude the testimony of Dr. Barbara
Singer and Dr. Allan Lieberman (Def.’s MIL, ECF No.
107), Plaintiffs’ response (Pl. Response MIL, ECF No.
125), Defendant’s Reply (Def. Reply MIL, ECF No. 133);
Defendant’s motion in limine to exclude Plaintiffs’ engineering experts (Def. MIL, ECF No. 108), Plaintiffs’
response (Pl. Response MIL, ECF No. 124), and Defendant’s Reply (Def. Reply MIL, ECF No. 132). Additionally, Defendant has filed a Motion for Leave to File
a Sur-reply (Def. Mot. Sur-reply, ECF No. 140), Plaintiffs have filed a response (Pl. Response Sur-reply, ECF
No. 144), and Defendant has filed a Reply (Def. Reply,
ECF No. 145). The issues are joined and ripe for consideration. For the reasons that follow, Defendant’s motions to exclude the opinions of Dr. John Molot (Def.’s
MIL, ECF No. 106), and Dr. Barbara Singer and Dr. Allan Lieberman (Def.’s MIL, ECF No. 107) are welltaken, and are GRANTED. As a consequence of granting those motions, Defendant’s motion for summary
judgment (Def. Mot. S.J., ECF No. 117) is also welltaken and is GRANTED, and the remaining motions
are DENIED as MOOT.
I.
BACKGROUND
This dispute arose out of the road resurfacing
“chip and seal” or “chip seal” project on Dutch Creek
Road in Athens County, Ohio. (Third Am. Comp. ¶¶ 3,
4, ECF No. 16.) Residents complained that the dust on
the road was affecting their health, and as part of his
App. 28
statutory obligation to maintain the roads of Athens
County, the Engineer decided to chip seal Dutch Creek
Road (Def. Mot. S.J., ECF No. 117, p. 10.)
Plaintiffs allege that the completion of the “chip
and seal” project within one mile of their residence
could cause Mrs. Madej serious physical harm or even
death. (Id. at ¶¶ 6, 7, 8, 11, 15, 23, 33, 39, 41, 42, 48.)
Specifically, Plaintiffs allege that “Cindi suffers from
chemical sensitivity, also known as environmental illness, which renders many substances used in road paving highly toxic to her, including but not limited to
petrochemicals used in ‘chip and seal’ road surfacing.”
(Id., at ¶ 4.) In support of their claims, Plaintiffs rely
on three medical experts, John Molot, M.D., a Canadian physician whom they engaged as an expert witness, and treating physicians Barbara Singer, M.D.
and Allan Lieberman, M.D. Discovery was completed
in June, 2018, and the issues were fully joined on September 11, 2018.
A. The State Court Preliminary Injunction
On September 15, 2015, Plaintiffs filed an action
in state court against the Athens County Engineer, Jeff
Maiden, in the Athens County Court of Common Pleas
seeking “a temporary restraining order, preliminary
injunction, and permanent injunction” to stop the paving project. (ECF No. 1-1, PgId 10). Judge Patrick Lang
granted a temporary restraining order, and then replaced the temporary restraining order with a preliminary injunction on September 23, 2015, following a
App. 29
hearing on the preliminary injunction on September
21, 2015. (Decision, ECF No. 16, PgId 144.) The state
court injunction remains in place, and Dutch Creek
Road has not been resurfaced. (Def. Mot. S.J., ECF No.
117, p. 2.)
During the hearing on the preliminary injunction,
the Court heard testimony from Mr. Madej, and from
Ms. Madej, who was permitted to testify via telephone,
including testimony that Ms. Madej sleeps “in a small
glass-lined room, with an old recliner being the only
furniture she feels her health can tolerate. In winter,
the only heat source in the room is a string of incandescent light bulbs, augmented on extremely cold
nights by the addition of glass bottles filled with hot
filtered water.” (Decision, ECF No. 16, PgId 145-46.)
The Court also heard testimony from Dr. Barbara
Singer, who testified that Ms. Madej “is in extremely
poor health, and suffers from ailments including anemia, several vitamin deficiencies, protein deficiency,
anxiety and depression.” (Id., PgId 146.) “Dr. Singer
testified that in her professional medical opinion, these
symptoms are caused by extreme chemical sensitivity,
and that Mrs. Madej would likely suffer severe physical injury or death if the project moved forward at the
current time. Finally, Dr. Singer testified that hospitalization is not a viable option, because the plastics and
chemicals used at hospitals would exacerbate Mrs.
Madej’s illness.” (Id.) In granting the preliminary injunction, the Court explained:
While there may be some cause to doubt the
diagnosis, it is undisputed that Mrs. Madej is
App. 30
a very sick woman. The question of what is
causing her symptoms is one for medical science. The Court is limited to deciding this Motion based only upon the facts in evidence
before it, and the only medical testimony offered at hearing is that Mrs. Madej is likely to
suffer serious injury or death if the project
moves forward at the present time. In the absence of contrary medical opinion, the Court
is not willing to disregard Dr. Singer’s testimony outright.
(Id., PgId 149-50.) On June 30, 2016, Plaintiffs filed a
second amended complaint adding federal claims, and
on July 7, 2016, Defendant removed the case to this
court. (ECF No. 1.)
B. Plaintiffs’ Third Amended Complaint
Plaintiffs filed a third amended complaint on October 18, 2016 (“complaint”) asserting claims arising
under the Fair Housing Amendments Act, 42 U.S.C.
§ 3601 et seq., and the Americans with Disabilities Act,
42 U.S.C. § 12101 et seq., as well as state-law claims. In
addition to monetary relief, Plaintiffs seek an order enjoining Defendant Athens County Engineer Jeff
Maiden (“Engineer” or “Defendant”) from completing
the road resurfacing “chip and seal” project, and a declaratory judgment to the effect that “should the defendant proceed with the threatened chip and seal
project on the section of Dutch Creek Road extending
from S.R. 550 to Stanley Road Mrs. Madej will suffer
serious physical harm or death and that the Defendant
App. 31
will be liable for civil assault and battery and/or
wrongful death.” (Third Am. Comp., ECF No. 16, PgId
138-39.) In support of the injunction, Plaintiffs attached as Exhibit 1 to the complaint an affidavit dated
September 15, 2015, from Dr. Barbara Singer, Ms.
Madej’s treating physician, declaring that Ms. Madej
“suffers from chronic chemical sensitivity resulting
from toxic exposure.” (Singer Aff., ECF No. 16, Ex. 1,
PgId 140.) “She also currently suffers from a lifethreatening anemic condition as evidenced by very low
hemoglobin levels and severe vitamin B12 deficiency,
as well as extreme weight loss and cardiometabolic decompensation. She is in a precarious state and even
small exposures to chemical stressors create a serious
hazard for her.” (Id.) Dr. Singer stated that Ms. Madej
“requires limited exposure or avoidance of many common materials and chemicals which include but are
not limited to: diesel, jet and other fuels, exhaust, tar
and asphalt, oil, herbicides and pesticides, smoke.” (Id.)
She stated that “[r]oadway construction and maintenance activities are of particular concern. Exposures,
even in small amounts, to numerous volatile organic
compounds found in petrochemical products like tar
(e.g. anthracene, benzene, and phenols), many of which
outgas for months are dangerous and even life-threatening for [Ms. Madej]. Potential impacts include: difficulty breathing, heart attack, paralysis, migraines,
neurologic stress and damage.” (Id.) Additionally,
“[a]voiding exposure is crucial. [Ms. Madej] is unable
to relocate from her home due to the severity and
breadth of her sensitivities and the specialized living
environment she requires.” (Id.) “If [Ms. Madej’s] road
App. 32
has a chip and seal or asphalt surface (or other surfacing that contains volatile organic compounds or toxins
to which she is sensitive) especially while she is already in a weakened state from her anemia condition,
weight loss, and cardiometabolic decompensation it is
my opinion to a reasonable degree of medical certainty
that she will suffer serious physical harm or possible
death.” (Id., PgId 141.)
Count I seeks injunctive relief to prevent the paving of Dutch Creek Road with asphalt or chip seal
(Third Am. Comp., p. 1); Count II claims civil assault,
battery, and/or wrongful death (Id., p. 4); Count III
seeks a declaratory judgment that, should Defendant
proceed with chip seal Ms. Majed will suffer assault,
battery and/or death (Id., p. 5); Count IV claims a violation of the Fair Housing Amendments Act, 42 U.S.C.
§ 3601, et seq. (Id.); and Count V claims a violation of
the Americans with Disabilities Act, 42 U.S.C. § 12101,
et seq. (Id., p. 6.)
II.
EVIDENTIARY MOTIONS
Defendant moves to exclude the testimony of the
Ms. Madej’s treating physicians, Dr. Singer and Dr.
Lieberman (Def.’s MIL, ECF No. 107); Plaintiff ’s medical expert, Dr. Molot (Def.’s MIL, ECF No. 106); and the
three engineers (Def.’s MIL, ECF No. 108). Plaintiff
moves to exclude the opinion testimony of Defendant’s
geotechnical engineer, Mr. Raab (Pl.’s MIL, ECF No.
138). Both parties move to exclude this proffered expert testimony pursuant to Daubert v. Merrell Dow
App. 33
Pharmaceuticals, Inc., 509 U.S. 579 (1993). The parties
have fully briefed the issues, filed the relevant reports,
and have provided relevant portions of the experts’
depositions.
III.
STANDARD
Federal Rule of Evidence 702 requires the trial
judge to perform a “gatekeeping role” when considering the admissibility of expert testimony. Daubert, 509
U.S. at 597. The rule provides as follows:
A witness who is qualified as an expert by
knowledge, skill, experience, training, or education
may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier
of fact to understand the evidence or to
determine a fact in issue;
(b) the testimony is based on sufficient facts
or data;
(c) the testimony is the product of reliable
principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Fed. R. Evid. 702. The Supreme Court explained the
gatekeeping role:
To summarize: “General acceptance” is not a
necessary precondition to the admissibility of
scientific evidence under the Federal Rules of
Evidence, but the Rules of Evidence—
App. 34
especially Rule 702—do assign to the trial
judge the task of ensuring that an expert’s testimony both rests on a reliable foundation and
is relevant to the task at hand. Pertinent evidence based on scientifically valid principles
will satisfy those demands.
Daubert, 509 U.S. at 597.
The Sixth Circuit has described the district court’s
gatekeeping function under Daubert as an “obligation
. . . to exclude from trial expert testimony that is unreliable and irrelevant.” Conwood Co., L.P. v. U.S. Tobacco
Co., 290 F.3d 768, 792 (6th Cir. 2002) (internal quotation marks omitted). The gatekeeping role progresses
in three steps: First, the witness must be qualified according to his or her “knowledge, skill, experience,
training, or education.” In re Scrap Metal Antitrust
Litig., 527 F.3d 517, 529 (6th Cir. 2008) (quoting Fed.
R. Evid. 702). Second, the expert’s testimony must be
relevant, in that it will help “the trier of fact to understand the evidence or to determine a fact in issue.” Id.
(same). On this point, the Court’s inquiry focuses on
whether the expert’s reasoning or methodology can be
properly applied to the facts at issue. See Daubert, 509
U.S. at 591-93. Third, the testimony must be reliable.
See Kendall Holdings, Inc. v. Eden Cryogenics, LLC, No.
2:08-cv-390, 2013 WL 53661 (S.D. Ohio Sept. 24, 2013).
To determine whether expert testimony is “reliable,”
the court’s role, and the offering party’s responsibility,
“is to make certain that an expert . . . employs in the
courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant
App. 35
field.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,
152 (1999). Generally, the expert’s opinions must reflect “scientific knowledge . . . derived by the scientific
method,” representing “good science.” Daubert, 509
U.S. at 590, 593. Reliability hinges on whether the reasoning or methodology underlying the testimony is scientifically valid. See Daubert, 509 U.S. at 590. The
expert must ground his or her testimony in the methods and procedures of science and must entail more
than unsupported speculation or subjective belief. Id.
Plaintiffs bear the burden to prove by a preponderance
of the evidence that the testimony is reliable. Wellman
v. Norfolk & Western Railway Co., 98 F. Supp.2d 919,
923 (S.D. Ohio 2000) (citing In re Paoli R.R. Yard PCB
Litig., 35 F.3d 717, 744 (3d Cir. 1994)).
Daubert outlines several factors for courts to consider to help determine reliability, including “testing,
peer review, publication, error rates, the existence and
maintenance of standards controlling the technique’s
operation, and general acceptance in the relevant scientific community.” United States v. Langan, 263 F.3d
613, 621 (6th Cir. 2001) (citing Daubert, 509 U.S. at
593-94). This inquiry is “flexible,” however, and Daubert’s factors “do not constitute a definitive checklist or
test.” Kumho Tire Co., 526 U.S. at 150 (emphasis in
original, citation and internal quotation marks omitted). The Court’s gatekeeper role “is not intended to
supplant the adversary system or the role of the jury.”
Wellman v. Norfolk and Western Ry. Co., 98 F.Supp.2d
919, 924 (S.D. Ohio 2000) (citing Daubert, 509 U.S. at
596). Rather, it is “to keep unreliable and irrelevant
App. 36
information from the jury because of its inability to assist in factual determinations, its potential to create
confusion, and its lack of probative value.” Id.
IV.
DISCUSSION
The inquiry of whether a witness qualifies as an
expert depends on his or her “knowledge, skill, experience, training, or education.” Fed. R. Evid. 702. After
review of the expert’s qualifications, the district court
makes this determination as a preliminary question
under Fed. R. Evid. 104(a). Kingsley Associates, Inc. v.
Del-Met, Inc., 918 F.2d 1277, 1286 (6th Cir. 1990). In
doing so, the district court “has broad discretion in the
matter of the admission or exclusion of expert evidence.” United States v. Kalymon, 541 F.3d 624, 636 6th
Cir. 2008) (quoting United States v. Demjanjuk, 367
F.3d 623, 633 (6th Cir. 2004)). As a guiding principle,
the decision of whether to allow expert testimony depends on whether “it will assist the trier of fact.” Id.
“The issue with regard to expert testimony is not the
qualifications of a witness in the abstract, but whether
those qualifications provide a foundation for a witness
to answer a specific question.” Berry v. City of Detroit,
25 F.3d 1342, 1351 (6th Cir. 1994).
App. 37
A. Medical Causation
Plaintiffs’ complaint asserts that “[Ms. Madej] suffers from chemical sensitivity, also known as environmental illness, which renders many substances used in
road paving highly toxic to her, including but not limited to petrochemicals used in ‘chip and seal’ road resurfacing.” (Third Am. Comp., ¶ 4, ECF No. 16.) In
cases involving exposure to toxic substances, the plaintiff “must establish both general and specific causation
through proof that the toxic substance is capable of
causing, and did cause, the plaintiff ’s alleged injury.”
Pluck v. BP Oil Pipeline Co., 640 F.3d 671, 677 (2011).
Thus, causation has two levels, general and specific,
and a plaintiff must prove both. As to specific causation, “[t]he plaintiff must show that [s]he was exposed
to a toxic substance and that the level of exposure was
sufficient to induce the complained-of medical condition (commonly called the ‘dose-response’ relationship’).” Valentine v. PPG Indus., Inc., 158 Ohio App.3d
615, 821 N.E.2d 580, 588 n. 1 (2004).
General causation establishes whether the
substance or chemical at issue is capable of
causing a particular injury or condition in the
general population. [Terry v. Caputo, 115 Ohio
St.3d 351, 875 N.E.2d 72, 76 (2007)]. If the
plaintiff establishes general causation, then
she must establish specific causation. Specific
causation establishes whether the substance
or chemical in fact caused the plaintiff ’s medical condition. Id. at 77. In order to establish
both general causation and specific causation,
the plaintiff must present expert medical
App. 38
testimony. Id. at 74 syl. 2. Without expert
medical testimony on both general causation
and specific causation, a plaintiff ’s toxic tort
claim will fail. Id. syl. 3.
Baker v. Chevron USA, Inc., 680 F.Supp.2d 865 (2010).
It is well-established in the Sixth Circuit that employing a differential diagnosis is an appropriate
means to establish causation. See Best v. Lowe’s, 563
F.3d 171, 178-80 (6th Cir. 2009) (citing Hardyman v.
Norfolk & Ry. Co., 243 F.3d 255, 260 (6th Cir. 2001)).
“Differential diagnosis, or differential etiology, is a
standard scientific technique of identifying the cause
of a medical problem by eliminating the likely causes
until the most probable one is isolated.” Hardyman,
243 F.3d at 260. “A differential diagnosis seeks to identify the disease causing a patient’s symptoms by ruling
in all possible diseases and ruling out alternative diseases until (if all goes well) one arrives at the most
likely cause.” Tamraz v. Lincoln Elec. Co., 620 F.3d 665,
674 (6th Cir. 2010). “[C]ourts must apply the Daubert
principles carefully in considering [etiology]. ‘The ability to diagnose medical conditions is not remotely the
same . . . as the ability to deduce . . . in a scientifically
reliable manner, the causes of those medical conditions.’ Gass v. Marriott Hotel Servs., Inc., 501 F.Supp.2d
1011, 1019 (W.D. Mich. 2007), rev’d on other grounds,
558 F.3d 419 (6th Cir. 2009). Doctors thus may testify
to both, but the reliability of one does not guarantee
the reliability of the other.” Id. at 673-74.
App. 39
In the case at bar, Plaintiffs assert that Ms. Madej
suffers from multiple chemical sensitivity (“MCS”) or
environmental illness. Plaintiffs claim that the petrochemicals inherent in chip seal will undoubtedly cause
her serious physical injury or death. In order to prevail
on that theory, Plaintiffs must establish both general
and specific causation by proving by a preponderance
of the evidence that these petrochemicals in chip seal
are capable of causing and will in fact cause the threatened injury. Pluck, 640 F.3d at 677.
1. Dr. Molot
Plaintiffs retained as an expert witness Dr. John
Molot, a Canadian physician who also works on a Canadian task force studying the gaps in science surrounding MCS, fibromyalgia, and chronic fatigue
syndrome. (Molot Dep., ECF No. 95, PgId 3288, 3292.)
Dr. Molot explained that environmental medicine is
not a recognized board certification, and he is not board
certified in any medical specialty. (Id., PgId 3311.) Dr.
Molot explained that MCS is “diagnosed by the history
and the history is somewhat complex.” (Id., PgId 3302.)
The history is the subjective criteria as relayed by the
patient. (Id.)
A. So part of that, of course, is to—there’s a
pattern to these patients that is common.
Usually middle-aged women. They have multiple system complaints. The brain is the most
common system involved. We usually see complaints of pain, fatigue, poor cognition, mood
change. Tied for second place are probably
App. 40
respiratory and/or gastrointestinal complaints. To start to see a pattern. And respiratory complaints may—will include both upper
and lower respiratory system. Upper respiratory, possibly partially explained by allergy.
Allergies are more common. I’m talking about
classical allergy. These patients will also complain of lower respiratory symptoms. So
asthma is more common. So you start to identify patterns.
Q. Is there an objective analysis that can be
performed for multiple chemical sensitivity?
Does blood work show multiple chemical sensitivity?
A. No. There are no blood tests that will
demonstrate chemical sensitivity. There are
no clinical tests. So it’s one of those conditions
which is made by making sure there is no
other biological phenomena that could explain
these symptoms and—but like I said, there
are no biological markers.
*
*
*
Q. How do you control for—how do you control for the other variables and determine that
it’s asphalt in patients that are exquisitely
sensitive?
A. How do you control for that? You know,
patients make their observations based on, I
smelled this and it makes me sick. And that’s
all we have.
(Id., PgId 3302-3303, 3324.) Dr. Lieberman explained
further that he has “no idea” which chemicals Ms.
App. 41
Madej is reacting to, “because there’s no way to test it.”
(Id., PgId 3338.)
Q. Okay and Ms. Madej’s complaints are not
related solely to the indoor quality of her
home, correct?
A.
Correct.
Q. They’re related to the use of chip seal and
the outdoor air quality, correct?
A. That’s what the issue is, but her medical
condition is that she is sensitive to a variety
of different chemicals.
Q. Can you identify with any specificity
what those chemicals are?
A. Only from the history of what the patient
identifies.
Q. Okay. There’s no way to test if she’s actually sensitive to those?
A.
No.
(Id., PgId 3339-3340.)
Q. . . . What symptoms did you observe her
demonstrate when exposed to chip and seal?
A. I’ve never observed her demonstrate any
symptoms. I had not exposed her to chip seal.
Q. Okay. So it’s your testimony that diagnosis for this condition is based strictly on a subjective criteria of history and reported
symptoms; is that correct?
App. 42
A.
Yes.
Q. And you’ve never observed her display
sensitivity to chip and seal, correct?
A.
Correct.
Q. And you’ve never observed her display
sensitivity to asphalt products?
A.
Correct.
Q. Have you ever observed her display sensitivity to anything?
A. I spent a couple hours with her outside in
a rural environment on a lovely sunny day
with a minimal breeze if there was one at all.
I don’t remember. It was just a lovely day. And
as a Canadian, I have great appreciation of
those lovely days. So that’s my memory of it.
And the purpose of being in that environment
was so that it would be tolerated by her, that
I could talk to her and do the physical exam.
So that’s my experience in being with Ms.
Madej to make observations clinically.
. . . Sorry? Did she display sensitivity to anything to me? No.
(Id., PgId 3341-3342.) Dr. Molot explained that he
based his opinion on the “couple of hours” he spent
with her during that one clinical visit, and on clinical
notes and records from other physicians. (Id., PgId
3349.) He did not recall asphalt sensitivity being mentioned in the medical records until September of 2015.
(Id., PgId 3350.)
App. 43
Q. Do you recall whether or not Dr. Lieberman ever tested Ms. Madej for petroleum
products?
A. That testing technique uses various mixtures. I do not recall whether—what exactly
he used, but some of them represent petroleum products, could be natural gas, could be
something else again, I’m not sure where he
got his substances for testing from.
Q. So could we say that that test would not
be a reliable biological indicator of MCS?
A. Yeah, the testing for sensitivity using
sublingual challenges has not been documented as reliable for the diagnosis of chemical sensitivity.
Q. And if Dr. Lieberman testified that he had
no medical evidence that Ms. Madej would die
if she was exposed to asphalt or chip seal,
would that change your medical opinions in
this report?
A.
No.
Q. Do you believe Ms. Madej will die if the
road is chip sealed?
A. Extremely unlikely, maybe change extremely to highly. Yeah.
Q. Have you ever seen a patient die from
multiple chemical sensitivity strictly?
A.
Have I seen that? No.
App. 44
Q. Have you ever seen a patient die from
chronic fatigue syndrome?
A.
No.
Q. Have you ever seen a patient die from fibromyalgia?
A.
No.
Q. So is it fair to say these are not life threatening conditions?
A No, they’re not. What they do create is a
biological response.
(Id., 3350-3351.) Dr. Molot further opined that he did
not think chip sealing the road would cause cardiac arrest, paralysis, or respiratory failure. (Id., PgId 3353.)
Dr. Molot also testified that he has no evidence that the
alternative products Plaintiffs prefer to chip seal
would be safe for Ms. Majed. “Q. Have you ever tested
her for exposure to any of these alternative products?
A. There’s no test available. Q. Okay. Have you ever
seen her become symptomatic around any of these alternative products? A. I only spent two hours with her.”
(Id., PgId 3389.)
Assuming arguendo that general causation was
proved (and the Court is not convinced that is is), it is
Plaintiffs’ burden to establish specific causation.
“When specific causation of an injury is at issue, the
Sixth Circuit requires that the expert conduct a ‘differential diagnosis’ in order to prove such causation.”
Best, 563 F.3d 179; Pluck, 640 F.3d at 678, Tamraz, 620
F.3d at 674. (Def. MIL, ECF No. 106, p. 4.) Plaintiffs
App. 45
assert that Dr. Molot did a complete differential diagnosis, and they offer an affidavit from Dr. Molot dated
June 28, 2018 (Pl. Response MIL, ECF No. 126, pp. 1213.) Dr. Molot’s affidavit states in relevant part:
I did complete a differential diagnosis in diagnosing Ms. Madej with MCS as follows:
I reviewed all the medical records for Ms.
Madej as well as other pertinent information
regarding this case (notably lab tests), and
conducted an extensive history from birth to
present requiring more than 5 hours to complete. That history included an environmental
exposure history. I also administered and reviewed approximately 80 pages of validated
and standardized medical test questionnaires
to assess other conditions as well as function
and disability and reviewed all laboratory
data (including blood work, an x-ray, and an
EKG which were performed on Ms. Madej at
the request of her treating physicians within
a week prior to the physical exam), all of
which were used to identify potential medical
or psychological conditions that would require
further consideration. I conducted a physical
exam of Ms. Madej including vital signs, evaluating her appearance and effect, mobility, examining her eyes, ears, nose, and throat,
performed a NASA lean test, Romberg and
tandem gait with multitasking to rule out balance disorders. I listened to her heart and
lungs, tested her reflexes, conducted an abdominal exam, and examined her skin. I examined her joints and muscle strength and
performed an evaluation of tender points. She
App. 46
did not present with edema or other physical
findings at that time. I observed her coordination, affect, mood, and body language. Nothing
from this examination, Ms. Madej’s history, or
the recent blood work and tests were indicative of a need for further tests. The medical
condition has been present for many years.
There were numerous lab tests performed by
medical practitioners during these many
years that were all normal indicating no need
to be repeated. I used case criteria to evaluate
her for multiple conditions, and eliminated a
multitude of possible explanations for her
complaints.
(Molot Aff., ECF No. 122, ¶¶ 16-17.)
Defendant asserts that Dr. Molot’s affidavit contradicts his testimony. (Def. Response MIL, ECF No.
134, p. 2.) To the extent that the affidavit contradicts
Dr. Molot’s prior testimony, such testimony is inadmissible. See Compton v. Midwest Specialties, Inc., 142
F.3d 296, 302-303 (6th Cir. 1998). However, even if the
affidavit is accepted, it is insufficient to establish specific causation. Dr. Molot’s affidavit states that “[t]he
medical condition has been present for many years.”
Ms. Madej’s alleged sensitivity to chip seal was first
raised in 2015. There is simply no medical evidence to
support the assertion that the specific chemicals in
chip seal are the cause Ms. Madej’s illness. “Specific
causation establishes whether the substance or chemical in fact caused the plaintiff ’s medical condition.”
Baker, 680 F.Supp.2d, at 874. As the Sixth Circuit explained in Tamraz:
App. 47
Calling something a “differential diagnosis” or
“differential etiology” does not by itself answer the reliability question but prompts
three more: (1) Did the expert make an accurate diagnosis of the nature of the disease? (2)
Did the expert reliably rule in the possible
causes of it? (3) Did the expert reliably rule
out the rejected causes? If the court answers
“no” to any of these questions, the court must
exclude the ultimate conclusion reached. See
Best v. Lowe’s Home Ctrs., Inc., 563 F.3d 171,
179 (6th Cir. 2009).
620 F.3d at 674.
Whether or not Dr. Molot attempted to conduct a
differential diagnosis, his testimony is insufficient to
answer “yes” to the reliability questions, and does not
supply the needed proof that the products in chip seal
are the cause of Ms. Madej’s injury. As the Sixth Circuit
noted in Nelson v. Tenn. Gas Pipeline Co., 243 F.3d 244,
253 (6th Cir. 2001), “an association does not mean
there is a cause and effect relationship.” “Before any
inferences are drawn about causation, the possibility
of other reasons for the association must be examined,
including chance, biases such as selection or informational biases, and confounding causes.” Id. More is required than simply proving the existence of the
presence of a toxin in the environment – there must be
proof that the level of the toxin present caused the
plaintiff ’s symptoms. Id. In the case at bar, “[t]here is
‘too great an analytical gap between the data and the
opinion proffered’ for the court to admit [Dr. Molot’s]
opinion as testimony.” Tamraz, 620 F.3d at 675-76. His
App. 48
testimony is also insufficient to support a finding that
the proposed alternatives to chip seal would be safe for
Ms. Majed.
The Court finds that Dr. Molot’s causation opinions are not reliable under the standards enunciated
by Daubert and, consequently, are inadmissible. Accordingly, Defendant’s motion to exclude the opinions
of Dr. Molot is well-taken and is GRANTED.
2. Dr. Singer
Ms. Madej began treating with Dr. Singer in 2011.
(Singer Dep., ECF No. 81, PgId 1640.) Dr. Singer is a
board certified primary care physician who holds a doctorate of Osteopathic Medicine. (Id., PgId 1631.) She
testified that, in the past, Ms. Madej has traveled by
car to her medical facility, and she examined her outside of the building, on the concrete pavement, which
ran from an asphalt road. (Id., PgId 1660.) This protocol was used because Ms. Madej thought the cleaning
products, paints, and carpeting inside the building
would make her ill. (Id., PgId 1657.) Dr. Singer testified
that she has never examined another patient outside,
before or since Ms. Majed. (Id.) Dr. Singer testified that
she does not have the skill set to diagnose MCS. (Id.,
PgId 1663.) “I don’t know the criteria for diagnosing
multiple chemical sensitivity.” (Id., PgId 1664.) For
that diagnosis, she relied on Ms. Madej’s statements
and a letter from Dr. Lieberman.
Q. You never spoke with Dr. Lieberman regarding any of the tests he did on Miss Madej
App. 49
to assess her for her claim of multiple chemical sensitivity?
A.
No, I didn’t.
Q. And she never told you, hey, he did allergy
testing, prick testing?
A.
No.
Q.
She just presented and said, I have this?
A.
Correct. And I did have the letter.
(Id., PgId 1665.)
Q. Did you ever test her for petrochemicals
or organic compounds?
A. I don’t even know where we begin with
that, if there are tests that are accurate for
that. That’s again in that chemical sensitivity
specialty that I don’t have.
(Id., PgId 1690.)
Q. What evidence do you have that external
chemical stressors caused these symptoms?
A. I have just the letter from Dr. Lieberman
and her reports.
(Id., PgId 1740.)
Q. So these symptoms that are characteristic of her MCS, these are all subjective, meaning she reported them, correct?
A. Right. So I’m looking at an ill appearing
patient who’s saying this is why, and this is
what I’m experiencing.
App. 50
Q. But they were not objectively measured
symptoms, correct?
A. Because I don’t even know how you do
that, because it’s not my field.
(Id., PgId 1723.)
Q. Okay. And then you’ve concluded that if
the road – Cynthia’s road – has chip and seal
or asphalt surface or other surfacing that contains volatile organic compounds or toxins,
coupled with her weakened state, that she’ll
suffer physical harm or possibly death?
A. She may. . . . I don’t know what state she’s
in now, but back then she had just barely come
through what I though was a very frightening
experience.
Q. What evidence do you have that any of
that was based on the use of chip and seal?
A. I don’t know that it was. I just think I you
take a vulnerable organism and you subject
them to their stressors, you put them at risk.
Q. But how did you know that those things
were going to stress her?
A. Because she had the diagnosis of multiple
chemical sensitivity from Dr. Lieberman.
(Id., PgId 1752.)
Dr. Lieberman testified that he did not diagnose
Ms. Majed as having multiple chemical sensitivity, as
that is not a diagnosis, but is rather a description.
(Lieberman Dep., ECF No. 91, PgId 2941.) As
App. 51
Defendant notes, Dr. Singer testified that MCS or environmental illness is not recognized by the American
Medical Association, the World Health Organization,
or the ICD-10 (International Statistical Classification
of Diseases and Related Health Problems or “International Classification of Diseases”), a medical classification list of the World Health Organization. (Def. Mot.
S.J., ECF No. 117, p. 16 (citing Singer Dep., ECF No.
81, PgId 1792-1793, 1767).) Dr. Singer further concedes
that she “does not have the skill set” to speak to a diagnosis of MCS. Rather, she had diagnosed Ms. Majed
with, among other things, severe anemia, lack of protein, and gastrointestinal orders. (Id., PgId 1674, 1686,
1748, 1784.) Regarding Ms. Majed’s precarious health,
Dr. Singer conceded, “I still don’t know what caused all
of this, you know, but something did. Something caused
all this.” (Id., PgId 1779.) This is not sufficient information to support a differential diagnosis. As the Sixth
Circuit explained in Tamraz, “testimony still must be
judged by its methodology, not its conclusion.” 620 F.3d
at 675.
App. 52
As for the letter that she wrote to the County Engineer recommending that construction or maintenance activities not occur within one mile of the Madej
home, Dr. Singer concedes that the one mile distance
paving restriction was based solely on the request from
the Madejs. (Singer Dep., ECF No. 81, PgId 1790.)
Q.
You never did any independent analysis?
A.
No.
Q. You never went out and saw the property? They said, a mile, and you put that in
there?
A.
Correct.
(Id.) Furthermore, when asked to opine about the list
of alternatives to chip and seal proposed by the Plaintiffs as their preferred alternatives to chip seal, Dr.
Singer testified that she is not familiar with any of
these compounds. (Id., PgId 1755.) As Dr. Singer concedes, she is “not a specialist in chemical sensitivity.”
(Id., PgId 1799.)
While it is clear that Dr. Singer is a caring physician, her testimony is insufficient to support a finding
of specific causation that Ms. Majed’s illness is caused
by the chemicals in chip seal, and is also insufficient to
support a finding that the proposed alternatives to
chip seal would be safe for Ms. Majed. The Court finds
that Dr. Singer’s causation opinions are not reliable
under the standards enunciated by Daubert and, consequently, are inadmissible. Accordingly, Defendant’s
App. 53
motion to exclude the opinions of Dr. Singer is welltaken and is GRANTED.
3. Dr. Leiberman
Ms. Madej’s primary treating physician, Dr. Allan
Lieberman, is the sole shareholder of The Center for
Occupational and Environmental Medicine (“Center”)
in Charleston, South Carolina. (Lieberman Dep., ECF
No. 91, PgId 2897.) Dr. Lieberman testified that MCS
is not a diagnosis, but it is a description. (Id., PgId
2941.) He explained that he “did not diagnose [Ms.
Madej]. There is no diagnosis of multiple chemical sensitivities. . . .” (Id., PgId 2961.) The only time Ms.
Madej appeared at the Center in person was in 1999,
and she was not seen by Dr. Lieberman personally, but
was seen by his colleague. (Id., PgId 2980, 2903.) Dr.
Lieberman has treated Ms. Madej via telephone, except for a hiatus in treatment from 2000 through 2006.
(Id., PgId 3000.) Defendant asserts that it is undisputed that, prior to 2015, Ms. Madej had never mentioned a sensitivity to asphalt. (Def. MIL, ECF No. 107,
p. 5, citing Lieberman Dep., ECF No. 91, PgId 3058.)
Dr. Lieberman testified that the only testing conducted
on Ms. Madej at her initial visit consisted of placing a
substance he described as “petroleum derived ethanol”
under her tongue. (Lieberman Dep., ECF No. 91, PgId
3086.) He did not test Ms. Madej to determine whether
she was sensitive to “asphalt”.
Q.
Is asphalt a generic term?
A.
Yes.
App. 54
Q. So there are varieties of different asphalts, correct?
A.
Yes.
Q. And they don’t all have the same chemical composition, correct?
A. And probably each batch is probably different because they’re rather crude materials.
Q. Did you ever administer any tests to determine if she was sensitive to asphalt other
than the discussions we’ve had already?
A.
No.
Q. Other than what you’ve told me about already?
A Not specific to asphalt, no.
A.
Only that asphalt is a petrochemical.
Q. Then how did you determine that the potential exposure to asphalt could cause her to
have respiratory or heart failure or paralysis?
How did you determine that?
A. Well, it didn’t say that’s specific to asphalt, did it?
Q. Well, it says, work to maintain roads
and/or to clear vegetation poses a hazardous
situation for this patient. Exposure will cause
her a wide variety of symptoms: Migraines,
shortness of breath, dizziness, heart racing,
and could create a life-threatening situation,
respiratory or heart failure, paralysis.
App. 55
A.
Right.
Q. So what did you mean when you said
that? That doesn’t mean asphalt?
A. No, not necessarily because it also could
be the road. Many of the roads, for example,
use herbicide in order to take down the vegetation and clear. Specifically, Ms. Madej in one
of her letters specifically talks about becoming
temporarily paralyzed from an exposure as
she went past the field, for example. Now,
what was in that field, I do not know. The suggestion was that it was an agricultural product, most likely a pesticide.
Q. Okay. Have you – do you know what products the county engineer uses to maintain
roads?
A.
No, I do not.
Q. Do you know what products the county
engineer uses to clear vegetation on roads?
A.
Specifically, no, I do not.
Q. Do you have any evidence that work to
maintain roads or to clear vegetation on roads
would cause Ms. Madej to have respiratory
failure to the point of death?
A. I can’t answer that specifically except,
based upon my education, training, and experience, and especially the latter, for example,
I have many patients who have become extremely sick as a result of herbicide and chemicals that were sprayed in order to clear
App. 56
vegetation from particular areas, especially
utility poles which are near their homes.
Q. Okay. And again, have you ever – you
never observed Ms. Madej become extremely
sick as a result of herbicides, have you?
A.
No. Only historically.
(Id., PgId 2925-2927.)
Dr. Lieberman testified that Ms. Madej stated she
had been exposed to the pesticide Dursban in the
1990’s, but he did not know at what dose or for what
period of time. (Id., PgId 2986.) “[I]t’s the toxic exposure to organophosphate pesticide that’s her diagnosis,
and she manifests all of these signs and symptoms related to that.” (Id., PgId 2965.) However, Dr. Lieberman
testified that other tests also found arsenic:
Q. Has blood work that’s been performed
ever revealed high percentages of toxic elements?
A. She underwent hair analysis and urine
analysis looking for heavy metals, and the
only one that was found was arsenic, and the
arsenic is in her. Unfortunately, it’s in all of us
now because if we eat a lot of rice – and she
eats rice two to three times a day. Rice, unfortunately, is heavily contaminated with arsenic, and that’s what you’re picking up in
Madej, for example, with regard to the arsenic. Now, I did a cholinesterase level on her,
and . . . I believe that supports the fact that
she’s constantly being exposed to organophosphate pesticides. . . .
App. 57
(Id., PgId 2965-2966.)
Q. Is there any living environment that
would be totally safe for Ms. Madej, given her
exquisite sensitivities?
A.
No. Everything is relative.
Q. And you’re aware that there’s presently
an injunction on the road, correct?
A.
I think so, yes.
Q. But yet, Ms. Madej is still ill and continues to treat with you, correct?
A.
Yes.
Q. So is it possible that something else besides the road is causing her to be ill?
A. Oh. It’s the entire environment which
consists of a lot of the pollutants we’ve been
talking about here –
*
*
*
Q. She had a lengthy history of medical
problems even prior to 1999, it’s your testimony, correct?
A.
Oh, yes.
*
*
*
Q. And when she came to you in 1999, you
did not believe the cause of her illness was asphalt, correct?
A.
Correct.
App. 58
(Id., PgId 2954-2955, 2957, 2961.) Dr. Lieberman testified that one of the basic principles of environmental
medicine is the “concept of total load":
Q. . . . And we’ve had a lot of testimony regarding [Ms. Madej’s] vulnerability. Does that
have anything to do with paving the road,
though, from a medical standpoint?
A. No. But one of the basic principles of environmental medicine is the concept of the total load, and part of that total load certainly
would be nutrition, and nutrition was a very
big concern for us, as we noticed that her
weight – when I believe I looked was like 125
pounds. She’s 5 foot 7½, if I recall correctly,
and so she was sort of thin to being with. And
then she goes all the way down, I think, to
maybe 107 or 117. So she’s lost quite a bit of
weight because she’s so restricted in terms of
what she’s eating, and that was a big danger
for her. And I noticed that Dr. Weirs, probably
in 2018 or ‘17, cautions her that she has to try
to eat even if she doesn’t want to.
Q. Yes. Absolutely. And again, her nutrient
deficiencies, they are not related at all to the
substance that the engineer uses on the road.
A.
Yes. That’s correct.
(Id., PgId 2039-2940.)
Q. Do any of your other patients who have
been exposed to Dursban seek an accommodation regarding paving a mile around their
home?
App. 59
A.
to my knowledge.
Q. And is it conceivable that even if an accommodation is provided, Ms. Madej could
still be sick?
A.
Yes.
(Id., PgId 2966-2967.)
Dr. Lieberman testified that he wrote three letters
of medical necessity in September 2015 at the request
of Ms. Madej. In his letter of September 2, 2015, he described her as suffering from “severe chemical sensitivity” and that she could be placed “in a life
threatening situation by even minimal exposures to
common materials and chemicals, particularly those
originating from petrochemicals.” Examples include
heribicides/fertilizers, pesticides, petroleum products
such as tar and blacktop, oil, fuels, exhaust, paints, varnishes and polyurethanes, and smoke combustion byproducts. (Id., PgId 3135.) The letter stated that Ms.
Madej should be contacted “a minimum of three days
before initiating any road construction or maintenance
activity within 1 mile of her residence.” (Id.) The September 4, 2015 letter changes the requirement from
notification to restriction such that activities must be
restricted within one mile from her home. (Id., PgId
3137.) Finally, Dr. Lieberman wrote a September 10,
2015 letter of necessity, also requesting that activities
be avoided within one mile of Ms. Madej’s home:
App. 60
To Whom It May Concern:
Cynthia Madej has been under my care for the
past 15 years for severe chemical sensitivity
from toxic chemical exposure that has resulted in her being legally disabled since
1997. Because of her sensitivities, she can be
placed in a life-threatening situation by even
minimal exposures to many common materials and chemicals, particularly those originating from petrochemicals. Examples of some of
the concerning chemicals include: herbicides/fertilizers, pesticides, petroleum products such as tar and blacktop, oil, fuels:
exhaust, paints, varnishes, polyurethanes,
and smoke/combustion bi-products.
Work to maintain roads and/or to clear vegetation poses a hazardous situation for this patient. Exposures cause her a wide variety of
symptoms (migraines, shortness of breath,
dizziness, heart racing) and could create a lifethreatening situation (respiratory or heart
failure, paralysis).
Avoidance of exposures is essential for Cynthia. She cannot relocate from her residence
to avoid exposure, even for short periods, because she requires specialized living conditions that cannot be easily replicated.
Remaining indoors with the windows closed
does not provide adequate protection against
chemical stressors because of the level of her
sensitivity. At this time, avoidance is the only
viable protection.
App. 61
To avoid risk to my patient, it is strongly advised that activities be avoided within 1 mile
of her residence. It is also strongly advised
that Cynthia is contacted prior to a minimum
of 3 days before initiating any road construction or maintenance activity within 1 mile of
her residence.
(Id., PgId 3137.)
Dr. Lieberman testified that he believed the reason he wrote the letters was to support Ms. Madej’s request for an injunction. The letters were not based on
new medical evidence. (Id., PgId 2936.) Dr. Lieberman
also conceded that the one mile restriction on road paving was arbitrary. (Id., PgId 2930.)
Plaintiffs assert that Dr. Singer and Dr. Lieberman, the treating physicians, should be permitted to
testify “like any other witness,” that is, like a fact witness. (Pl. Response MIL, ECF No. 125, p. 6.) However,
the issue is not whether Ms. Madej is ill. The issue is
whether chip seal caused or will cause her illness. The
testimony is that there is no safe exposure to any environmental pollutant for someone as sensitive as Ms.
Madej, and this testimony would not help the trier of
fact determine whether chip seal will harm the plaintiff and whether she has proven both general and specific causation.1 Additionally, Plaintiffs assert that
1
After the state court granted the paving injunction, Dr.
Lieberman wrote a letter to the County Engineer on February 26,
2016, stating that the County should refrain from “spraying
chemicals within a three mile radius of [Ms. Madej’s] above stated
address.” (Id., PgId 3138.)
App. 62
“[a]s to recognition by leading medical authorities, at a
1996 World Health Organization (WHO) conference,
the conferees recommended that a different term, Idiopathic Environmental Intolerance (IEI), be used instead of MCS, and called for continuing research on the
condition.” (Id., p. 8.)2 However, this information is not
sufficient to meet the Daubert standard for reliability
as to long-term or permanent symptoms arising from
the exposure to a particular toxic chemical.
The issue is the reliability of his opinion from
a legal perspective. And what science treats as
a useful but untested hypothesis the law
should generally treat as inadmissible speculation. As the Supreme Court has explained,
“[t]he scientific project is advanced by broad
and wide-ranging considerations of a multitude of hypotheses, for those that are incorrect will eventually be shown to be so. . . .
Conjectures . . . are of little use, however, in
the project of reaching a quick, final, and binding legal judgment – often of great consequence – about a particular set of events in
the past.” Daubert, 509 U.S. at 597, 113 S.Ct.
2786. “Law lags science; it does not lead it.”
Rosen [v. Ciba-Geigy Corp., 78 F.3d 316] at 319
[(7th Cir. 1996)].
Tamraz, 620 F.3d at 677.
2
A condition described as idiopathic, meaning one for which
the cause is unknown, is by definition not linked to chip seal asphalt or any other specific chemical.
App. 63
Defendant also asserts that Dr. Lieberman’s affidavit of June 28, 2018 contradicts his testimony. (Def.
Reply MIL, ECF No. 133, p. 5.) To the extent that the
affidavit contradicts Dr. Lieberman’s prior testimony,
such testimony is inadmissible. See Compton, 142 F.3d
at 302-303. The affidavit attempts to clarify Dr. Lieberman’s testimony regarding exposure levels. (Lieberman Aff., ECF No. 121.) He states that Ms. Madej’s
sensitivity level is tied to small amounts, like parts per
billion. However, “the mere existence of a toxin in the
environment is insufficient to establish causation
without proof that the level of exposure could cause the
plaintiffs’ symptoms.” Pluck, 650 F.3d at 679. The information Dr. Lieberman relies upon for this opinion is
based solely on Ms. Majed’s self-reports of when she
felt she had symptoms. (Lieberman Aff., ECF No. 121,
¶ 5.) In any event, even with the additional information provided in the affidavit, there is no differential
diagnosis evidence or other evidence sufficient to tie
Ms. Majed’s numerous symptoms and long years of illness to the chip seal at issue. The Court finds that Dr.
Leiberman’s causation opinions are not reliable under
the standards enunciated by Daubert and, consequently, are inadmissible. Accordingly, Defendant’s
motion to exclude the opinions of Dr. Leiberman is
well-taken and is GRANTED.
B. Summary Judgment
Defendant moves for summary judgment, asserting that Plaintiffs “have no evidence that the emissions
from an application of chip seal are injurious to the
App. 64
residents along the road generally, and no medical evidence that it will cause Ms. Madej’s alleged individual
symptoms, or further injury.” (Def. Mot. S.J., ECF No.
117, p. 2.) Defendant’s motion is well-taken. In the absence of a valid, scientific basis to support a finding of
specific causation, Plaintiffs are unable to establish a
genuine issue of fact for trial.
Count I seeks permanent injunctive relief to prevent the paving of Dutch Creek Road with asphalt or
chip seal. (Third Am. Comp., ECF No. 16, p. 1.) The
standard for granting a permanent injunction requires
that Plaintiffs demonstrate “(1) that they will suffer a
continuing irreparable injury if the court fails to issue
an injunction; (2) that there is no adequate remedy at
law; (3) that, considering the balance of hardships between the plaintiffs and defendant[ ], a remedy in equity is warranted; and (4) that it is in the public’s
interest to issue the injunction.” Sherful v. Gassman,
899 F.Supp.2d 676, 708 (S.D. Ohio 2012), aff ’d sub
nom., Sherfel v. Newson, 768 F.3d 561 (6th Cir. 2014).
Inasmuch as the Court has ruled that the medical
opinions are not admissible, Plaintiffs are unable to establish a material issue of fact on the first element of
this claim, and the claim must fail.
Claim II asserts civil assault and battery and/or
wrongful death. (Third Am. Comp., ECF No. 16, p. 5.)
In Ohio, an assault is an unlawful offer or attempt, coupled with a present ability, to inflict an injury upon the
person of another. Woods v. Miamisburg City Schools,
254 F.Supp.2d 868, 878 (S.D. Ohio 2003), citing Daniel
v. Maxwell, 176 Ohio St. 207, 208 (Ohio 1964). Battery
App. 65
is defined as “an intentional contact with another that
is harmful or offensive.” Gerber v. Veltri, 702 Fed. App’x.
423, 433 (6th Cir. 2017) (citing Love v. City of Port Clinton, 37 Ohio St.3d 98, 99 (Ohio 1988). Defendant asserts that the claim is not yet ripe, because the County
has not proceeded with the paving project. (Def. Mot.
S.J., ECF No. 117, p. 26.) However, an assault may be
supported by an offer, and certainly the planned paving project could constitute an offer. Defendant notes
that chip sealing the road is not of itself unlawful, and
maintenance of the road is part of Defendant’s duties,
see Ohio Rev. Code § 5543.01(A). (Id., p. 28.) However,
Plaintiffs assert that the County is liable as a result of
“wanton, reckless, and/or bad faith exercise of discretion” because Defendant “knows with substantial certainty that its actions will bring serious physical harm
or death to Mrs. Majed.” (Third Am. Comp., ECF No.
16, ¶¶ 28-31.) Inasmuch as the Court has ruled that
the proffered medical opinions are not admissible, the
scienter requirement for this claim is unsupported,
and the claim must fail.
Claim III seeks a declaratory judgment “to the effect that should the defendant proceed with the threatened chip and seal project on the section of Dutch
Creek Road extending from S.R. 550 to Stanley Road
Mrs. Madej will suffer serious physical harm or death
and that the Defendant will be liable for civil assault
and battery and/or wrongful death.” (Third Am. Comp.,
ECF No. 16, ¶ 33.) Inasmuch as Claim II is unsupported, Claim III must also fail.
App. 66
Claim IV asserts that Ms. Madej has been discriminated against in violation of the Fair Housing Amendments Act, 42 U.S.C. § 3601 et seq., because of a failure
to make a reasonable accommodation for her disability.
(Id., pp. 5-6.) Plaintiffs assert that there is a genuine
issue of material fact as to the reasonableness of the
accommodation sought by the Madejs. (Pl. Mem. Opp.,
ECF No. 120, p. 28.) The “three operative elements” of
the FHAA’s reasonable accommodation requirement
are “equal opportunity,” “necessary,” and “reasonable.”
Smith & Lee Assocs., Inc. v. City of Taylor, Mich., 102
F.3d 781, 794 (6th Cir. 1996). The first two elements are
closely related. The first asks “whether the requested
accommodation would afford the disabled resident an
equal opportunity to enjoy the property.” Hollis v.
Chestnut Bend Homeowners Ass’n, 760 F.3d 531, 541
(6th Cir. 2014). The FHAA “links the term ‘necessary’
to the goal of equal opportunity. Plaintiffs must show
that, but for the accommodation, they likely will be denied an equal opportunity to enjoy the housing of their
choice.” Smith & Lee Assocs., 102 F.3d at 795 (citations
omitted). “The necessity element is, in other words, a
causation inquiry that examines whether the requested accommodation or modification would redress
injuries that otherwise would prevent a disabled resident from receiving the same enjoyment from the property as a non-disabled person would receive.” Hollis,
760 F.3d at 541. There is simply no medical evidence to
support the assertion that the alternative proposed
App. 67
products would, in fact, provide such redress.3 Inasmuch as the Court has ruled that the proffered medical
opinions are not admissible, the claim must fail.
Claim V asserts that Ms. Madej will has been discriminated against under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., because of the
County’s failure to make a reasonable modification to
accommodate her disability. (Id., pp. 6-7.) The specific
modification Plaintiffs seek is the use of an alternative
product to chip seal on the portion of Dutch Creek Road
at issue. Because there is no admissible medical evidence to support Plaintiffs’ claims relative to chip seal,
let alone to support the safety of the proposed alternatives, there is no issue of material fact, and summary
judgment is appropriate. Accordingly, Defendant’s motion for summary judgment is well-taken and is
GRANTED.
Finally, the Court notes that Ms. Madej is quite ill,
a fact that is undisputed. As a citizen, her health is important to officials serving Athens County. The Court
encourages the County Engineer to give Ms. Majed notice far in advance of road work and to explore any remedial measures which could reduce environmental
emissions near her home.
3
To the contrary, the medical evidence indicated that no
level of chemical exposure is safe for Ms. Madej, and none of the
doctors could testify that the proposed alternative chemicals
would be safe.
App. 68
IV.
CONCLUSION
For the reasons set forth above, Defendant’s motion for summary judgment (Def. Mot. S.J., ECF No.
117) is GRANTED. The claims of Plaintiffs are DISMISSED WITH PREJUDICE, and the preliminary
injunction is VACATED.
IT IS SO ORDERED.
10-12-2018
DATE
/s/ [Illegible]
EDMUND A. SARGUS, JR.
CHIEF UNITED STATES
DISTRICT JUDGE
App. 69
AO 450 (Rev. 5/85) Judgment in a Civil Case
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
Eastern Division
CYNTHIA MADEJ,
et al.,
Plaintiffs,
v.
ATHENS COUNTY
ENGINEER
JEFF MAIDEN,
Defendant.
JUDGMENT IN A
CIVIL CASE
CASE NO. 2:16-cv-658
CHIEF JUDGE
EDMUND A.
SARGUS, JR.
MAGISTRATE
JUDGE CHELSEY M.
VASCURA
___
Jury Verdict. This action came before the
Court for a trial by jury. The issues have been
tried and the jury has rendered its verdict.
_X_
Decision by Court. A decision has been rendered by the Court without a hearing or trial.
Pursuant to the Order filed October 17, 2018
the Court GRANTS Defendant’s motion for summary judgment [ECF No. 17]. The claims of Plaintiffs are DISMISSED WITH PREJUDICE, and the
preliminary injunction is VACATED.
App. 70
Date: October 17, 2018
RICHARD W. NAGEL, CLERK
/S/ Christin Werner
(By) Christin Werner
Courtroom Deputy Clerk
App. 71
No. 18-4132
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CYNTHIA MADEJ;
ROBERT MADEJ,
Plaintiffs-Appellants,
v.
JEFF MAIDEN, ATHENS
COUNTY ENGINEER,)
Defendant-Appellee.
)
)
)
)
)
)
)
)
)
ORDER
(Filed Mar. 26, 2020)
BEFORE: GUY, BUSH, and MURPHY, Circuit
Judges.
The court received a petition for rehearing en
banc. The original panel has reviewed the petition for
rehearing and concludes that the issues raised in the
petition were fully considered upon the original submission and decision of the case. The petition then was
circulated to the full court. No judge has requested a
vote on the suggestion for rehearing en banc.
Therefore, the petition is denied.
ENTERED BY ORDER
OF THE COURT
/s/ Deb S. Hunt
Deborah S. Hunt, Clerk
App. 72
Americans with Disabilities Act:
42 U.S.C. § 12131:
As used in this subchapter [ADA Title II]:
(1)
Public entity
The term “public entity” means—
(A)
any State or local government;
(B) any department, agency, special purpose district,
or other instrumentality of a State or States or local
government; and
(C) the National Railroad Passenger Corporation,
and any commuter authority (as defined in section
24102(4) of Title 49).
(2)
Qualified individual with a disability
The term “qualified individual with a disability” means
an individual with a disability who, with or without
reasonable modifications to rules, policies, or practices,
the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids
and services, meets the essential eligibility requirements for the receipt of services or the participation in
programs or activities provided by a public entity.
42 U.S.C. § 12132:
Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such
App. 73
disability, be excluded from participation in or be denied the benefits of the services, programs, or activities
of a public entity, or be subjected to discrimination by
any such entity.
28 C.F.R. § 35.108
(d)
Substantially limits—
(1) Rules of construction. The following rules of
construction apply when determining whether an
impairment substantially limits an individual in a
major life activity.
(vii) The comparison of an individual’s performance of a major life activity to the performance of the same major life activity by most
people in the general population usually will
not require scientific, medical, or statistical
evidence. Nothing in this paragraph (d)(1) is
intended, however, to prohibit or limit the
presentation of scientific, medical, or statistical evidence in making such a comparison
where appropriate.
28 C.F.R. § 35.130
(a) No qualified individual with a disability shall, on
the basis of disability, be excluded from participation
in or be denied the benefits of the services, programs,
or activities of a public entity, or be subjected to discrimination by any public entity.
App. 74
(b)(1) A public entity, in providing any aid, benefit, or
service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability—
(i) Deny a qualified individual with a disability the
opportunity to participate in or benefit from the aid,
benefit, or service;
(ii) Afford a qualified individual with a disability an
opportunity to participate in or benefit from the aid,
benefit, or service that is not equal to that afforded others;
(iii) Provide a qualified individual with a disability
with an aid, benefit, or service that is not as effective
in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level
of achievement as that provided to others;
*
*
*
(vii) Otherwise limit a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the
aid, benefit, or service.
*
*
*
(7)(i) A public entity shall make reasonable modifications in policies, practices, or procedures when the
modifications are necessary to avoid discrimination
on the basis of disability, unless the public entity can
demonstrate that making the modifications would
App. 75
fundamentally alter the nature of the service, program, or activity.
6 C.F.R. § 36.105
(d)
Substantially limits—
(1) Rules of construction. The following rules of
construction apply when determining whether an
impairment substantially limits an individual in a
major life activity.
(vii) The comparison of an individual’s performance of a major life activity to the performance of the same major life activity by most
people in the general population usually will
not require scientific, medical, or statistical
evidence. Nothing in this paragraph (d)(1) is
intended, however, to prohibit or limit the
presentation of scientific, medical, or statistical evidence in making such a comparison
where appropriate.
29 U.S.C. § 1630.2
(g)
Definition of “disability”—
(1) In general. Disability means, with respect to an
individual—
(i) A physical or mental impairment that substantially limits one or more of the major life activities of
such individual;
App. 76
*
(h)
*
*
Physical or mental impairment means—
(1) Any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more
body systems, such as neurological, musculoskeletal,
special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin,
and endocrine; or
(2) Any mental or psychological disorder, such as an
intellectual disability (formerly termed “mental retardation”), organic brain syndrome, emotional or mental
illness, and specific learning disabilities.
(i)
Major life activities—
(1) In general. Major life activities include, but are
not limited to:
(i) Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing,
learning, reading, concentrating, thinking, communicating, interacting with others, and working; and
(ii) The operation of a major bodily function, including functions of the immune system, special sense organs and skin; normal cell growth; and digestive,
genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic,
lymphatic, musculoskeletal, and reproductive functions. The operation of a major bodily function includes
App. 77
the operation of an individual organ within a body system.
(2) In determining other examples of major life activities, the term “major” shall not be interpreted strictly
to create a demanding standard for disability. ADAAA
section 2(b)(4) (Findings and Purposes). Whether an
activity is a “major life activity” is not determined by
reference to whether it is of “central importance to
daily life.”
(j)
Substantially limits—
(1) Rules of construction. The following rules of construction apply when determining whether an impairment substantially limits an individual in a major life
activity:
(i) The term “substantially limits” shall be construed
broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. “Substantially limits” is not meant to be a demanding
standard.
(ii) An impairment is a disability within the meaning
of this section if it substantially limits the ability of an
individual to perform a major life activity as compared
to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life
activity in order to be considered substantially limiting. Nonetheless, not every impairment will constitute
a disability within the meaning of this section.
App. 78
(iii) The primary object of attention in cases brought
under the ADA should be whether covered entities
have complied with their obligations and whether discrimination has occurred, not whether an individual’s
impairment substantially limits a major life activity.
Accordingly, the threshold issue of whether an impairment “substantially limits” a major life activity should
not demand extensive analysis.
(iv) The determination of whether an impairment
substantially limits a major life activity requires an individualized assessment. However, in making this assessment, the term “substantially limits” shall be
interpreted and applied to require a degree of functional limitation that is lower than the standard for
“substantially limits” applied prior to the ADAAA.
(v) The comparison of an individual’s performance of
a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or
statistical analysis. Nothing in this paragraph is intended, however, to prohibit the presentation of scientific, medical, or statistical evidence to make such a
comparison where appropriate. . . .
App. 79
Fair Housing Amendments Act:
42 U.S.C. § 3602:
(h)
“Handicap” means, with respect to a person—
(1) a physical or mental impairment which substantially limits one or more of such person’s major life activities. . . .
42 U.S.C. § 3604:
As made applicable by section 3603 of this title and except as exempted by sections 3603(b) and 3607 of this
title, it shall be unlawful—
*
*
*
(f )(2) To discriminate against any person in the
terms, conditions, or privileges of sale or rental of a
dwelling, or in the provision of services or facilities in
connection with such dwelling, because of a handicap
of
(A)
that person
*
*
*
(3) For purposes of this subsection, discrimination includes—
*
*
*
(B) a refusal to make reasonable accommodations
in rules, policies, practices, or services, when such
App. 80
accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling. . . .
24 C.F.R. § 100.201:
(a)
Physical or mental impairment includes:
(1) Any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more
of the following body systems: Neurological; musculoskeletal; special sense organs; respiratory, including
speech organs; cardiovascular; reproductive; digestive;
genito-urinary; hemic and lymphatic; skin; and endocrine; or
(2) Any mental or psychological disorder, such as
mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term physical or mental impairment includes,
but is not limited to, such diseases and conditions as
orthopedic, visual, speech and hearing impairments,
cerebral palsy, autism, epilepsy, muscular dystrophy,
multiple sclerosis, cancer, heart disease, diabetes, Human Immunodeficiency Virus infection, mental retardation, emotional illness, drug addiction (other than
addiction caused by current, illegal use of a controlled
substance) and alcoholism.
(b) Major life activities means functions such as caring
for one’s self, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning and working.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.