Petition for Writ of Certiorari — Moore v. Ashland Chemical, Inc.
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Supreme Court, y g
FILED
88 go902
" DEC 1 7 196
ee ne eo
IN THE
Supreme Court of the United States
OCTOBER TERM, 1998
BOB T. MOORE and SUSAN MOORE,
Petitioners.
VS,
ASHLAND CHEMICAL, INC. and ASHLAND OIL, INC.,
Respondents
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
ROBERT D. GREEN
Counsel of Record
GREEN & BARTON, L.L.P.
Attorneys for Petitioners
1200 Smith Street
600 Two Allen Center
Houston, Texas 77002
(713) 654-9222
150240 @] Counsel Press LLC
FORMERLY LUTZ APPELLATE SERVICES
(800) 274-3321 « (800) 359-6859
QUESTIONS PRESENTED
1. Under Rule 702 of the Federal Rules of Evidence, may
a clinical medical doctor testify as to the cause of a patient’s
injury or disease when his opinion is grounded in specialized
knowledge, personal experience and clinical methodologies and
the processes customarily employed by medical doctors in
clinical medicine?
2. Whether the court of appeals erred in not applying an
abuse of discretion standard of review when the court did not
consider the particulars of respondents’ motion to exclude the
causation testimony of petitioners’ expert witness and the
deposition testimony and other evidence submitted on that
motion and when it did not consider the particulars of the district
court’s justifications for its ruling on that motion and instead
conducted a plenary review designed to justify the exclusion
on any grounds.
TABLE OF CONTENTS
Page
Questions PRESENMIER ... «..45 oO. ksa i ae eee
Oot Of Combeeme .... bw cand e eae ey eee 11
Fable of Cited Autores: ...6his.05e4enee ee 1\
Opinions Below .....
Statement of Jurisdiction .... 2. 6...06.0ee eee ee
Rules Involved ........... imamate |
Statement of the Case ............. | 7
A. The District Court’s Ruling 3
B. The Court of Appeals’ Reversal ..... 4
C. The En Banc Court of Appeals’ Affirmance .. 5
Reasons for Granting the Writ .....6..955555456505) 6
I. The Court of Appeals’ Decision Conflicts With
Decisions of This Court and Other Courts of
Appeals on an Important Matter of Interpretation
of Fed. R. Evid. 702 and This Question of Federal
Law Has Not Been, But Should Be, Settled by
Shit Cot. 2.66.65 eee eee 6
A. The Decision Conflicts With Other Courts
of Appeals’ Decesomt 2.55055 8
i ai
B.
ll
Contents
Recent Scholarly Commentary and the
Proposed Amendment to Rule 702 Supports
the Conclusion That the Clinical Medical
Doctor’s Testimony Is Reliable.
The Decision of the Court of Appeals Is
NSS AAI LES OE TT EERE
Il. The Standard of Review Applied by the Court of
Appeals Conflicts with Decisions of this Court
and Other Courts of Appeals’ Decisions
Conclusion
>>
TABLE OF CITED AUTHORITIES
Page
Cases:
Albermarle Paper Co. v. Moody, 422 U.S. 413 (1975)
EE a EA eM ERIS & on len Meet Ne pee ee 24
Ambrosini v. Labarraque, 101 F.3d 129 (D.C. Cir. 1996),
cael. deme 18) BAA 25 72 CE. oi ek Ss Miz
Anderson v. City of Bessemer City, N.C., 470 U.S. 562
ERDEE 6c th cw SaaS Bee RCE E EASA ES CRN 24
Baker v. Dalkon Shield Claimants Trust, 156 F.3d 248
Pe My PE oo gs Ns oes naa ee ee oe 1]
Benedi v. McNeil-P.P.C., Inc., 66 F.3d 1378 (4th Cir.
PE aa Galo rad be ee oe ane he ee ee 10
Binakonsky v. Ford Motor Co., 133 F.3d 281 (4" Cir.
RUE. eis hod ORES EV CRETE VERSE 20
Bourjaily v. United States, 483 U.S. 171 (1987) ..... 23
Carmichael v. Samyang Tire, Inc., 131 F.3d 1433 (11"
Cir. 1997), cert. granted, 118 S. Ct. 2339 (1998) .. 11,12
Carroll v. Morgan, 17 F.3d 787 (5" Cir. 1994) ...... 12
Clark v. Heidrick, 150 F.3d 912 (8 Cir. 1998) ...... 10
Compton v. Subaru of Am., Inc., 82 F.3d 1513 (10" Cir.
POE Soe 3a cers wile ot oO as pine a tee ie ares 1]
V
Cited Authorities
Page
Cooter & Gill v. Hartmarx Corp., 496 U.S. 384 (1990)
ee, aa akan besa a ee aa eae ee ee ees aS
Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S.
S79 C1982) 6 cst 3, 4, 5, 6, 7, 8, 10, 11, 12, 15, 18, 20, 23
Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d
1311 (9" Cir.), cert. denied, 116 S. Ct. 189 (1995)
ob ee aa he he eee ee eee 20
Desrosiers v. Flight Int'l of Fla., Inc., 156 F.3d 952 (9"
Cae 1998) oie ne 6 one xa ee reas ot ee een 11
Dole v. United Steelworkers of America, 494 U.S. 26
CIDGOD no kc koe as ORV Se eee 21
General Electric Co. v. Joiner, 118 S. Ct. 512 (1997)
ee Pe er rE eee 7, 18, 23, 24, 25
oer re ns Cr 10, 22
Hose v. Chicago Northwestern Transp. Co., 70 F.3d 968
(Sth Ciz. 19095) 65 e055 ee ee a ee 10, 22
In re Paoli R.R. Yard PCB Litig., 35 F.3d 717 (3d Cir.
1994), cert. denied, 115 S. Ct. 1253 (1995) ....... 10
Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802 (3d Cir.
VI
Cited Authorities
Page
Lauria vy. National R.R. Passenger Corp., 145 F.3d 593
CNM 6s pee es vee eke ee Oe 1]
Martin v. American Cyanamid Co., 5 F.3d 140 (6" Cir.
SEE ca has he OL ee eRe Oe eee 21
McCullock v. H.B. Fuller Co., 61 F.3d 1038 (2d Cir.
| MR ee ey Pom rrr ara ed ve” S, o, 83, 33, 28, oe
McKendall v. Crown Control Corp., 122 F.3d 803 (9"
Ee A> eS Neh Parr rent he, Som 11
Moore v. Ashland Chemical, Inc. 126 F.3d 679 (5" Cir.
pg bs Se ee ee PI at PAT! 13, 14
Morgan v. Compugraphic Corp., 675 S.W. 2d 729 (Tex.
| PE ev ERMINE RR Asis ake Nea! <r, ¥ 21
Old Chief v. United States, 117 S. Ct. 644 (1997) .... 24
Pierce v. Underwood, 487 U.S. 560 (1988) ......... a 22
Raynor v. Merrell Pharmaceuticals, Inc., 104 F.3d 1371
Ge. SOE) 0 vk ee sees Cee eae ee 19
Richards v. Aramark Services, Inc., 108 F.3d 925 (8th
J) Pe eREE ERE Pee rr el eee re 24
Sementilli v. Trinidad Corp., 155 F.3d 1130 (9" Cir.
og | rere me NS ol sa cecy FAS 4 24
Cited Authorities
Page
Talkington v. Atria Reclamelucifers Fabrieken BV, 152
38 SO Gr EE oo bo ee ey este Gee eewns 1]
Watkins v. Telesmith, Inc., 121 F.3d 984 (5" Cir. 1997)
ee Ree Rae Nee are eee aie Tate sata 20
Zuchowicz v. United States, 140 F.3d 381 (2d Cir. 1998)
ey hy ee ead ee ee ae 9
Statutes:
20 TE ee ck ek ae eee l
(Ge 2 lS bs: Sere ar Dae ee eee ara her pee art 2
Rules:
Federal Rule of Evidence 104(a) ................ 1,6, 7, 11
Federal Rule of Evidence 403 ..................4.. 4
Federal Rule of Evidence 702 ....................
Po gaa tk eee i, 1, 3, 6, 7, 8, 10, 11, 13, 14, 17, 18, 19, 20
Other Authorities:
29 C.F.R. § 1910. 1200(g)(5) (3989) ............... 21
American College of Trial Lawyers, Standards and
Procedures for Determining the Admissibility of Expert
Evidence After Daubert, 157 F.R.D. 571, 577 (1994)
ates eine Ee ee ORR ON 6 RR SEE 6, 15, 16
—
vill
Cited Authorities
Page
Boston, A Mass-Exposure Model of Toxic Causation: The
Content of Scientific Proof and the Regulatory
Experience, 18 Colum. J. Envtl. Law 181, 381
4) Pe ern eee rer ee mrs ry aro ee er 19, 20
Boston, Toxic Apportionment: A Causatian and Risk
Contribution Model, 25 Envtl. Law 549 (1995) ... 20
Dr. Brooks’ article, Reactive Airways Dysfunction _
Syndrome (RADS), 88 Chest 376 (1985) ......... 3, 26
Childress, A Standard of Review Primer, 125 F.R.D. 319
CS re Pen ea ae een er orbit ne rere era aor 24
Committee on Rules of Practice and Procedure of the
Judicial Conference of the United States, Preliminary
Draft of Proposed Amendments to the Federal Rules
of Civil Procedure and Evidence 122 (August 1998)
eee eee Teer PERT ee ee LET Ory. re Pee 15
Friendly, /ndiscretion About Discretion, 31 Emory L.J.
VOT LEPOED 8 cou pee ek eres Fe tb Ee 25
Michael H. Graham, 7Jhe Daubert Dilemma: At Last A
Viable Solution? 179 F.R.D. 1, 13-14 (1998) ..... 13, 14
1 Michael H. Graham, Handbook of Federal Evidence
Re et el | reer ree as ae 22
4 J. McLaughlin, J. Weinstein & M. Berger, Weinstein’s
Federal Evidence § 702.02[2], at 702-7 to 702-8
AL) ReRaareeraerarar ie terete parr ieee rye aera SP er 24
Cited Authorities
Page
4 J. McLaughlin, J. Weinstein & M. Berger, Weinstein's
Federal Evidence § 703.03[1], at 703-7, 703-8 (1998)
fee ig eee CE ROE Sal FRE EA Sea eee 9
4 J. McLaughlin, J. Weinstein & M. Berger, Weinstein's
Federal Evidence § 702.05[2], at 702-32 (1998) ... 12
4 J. McLaughlin, J. Weinstein & M. Berger, Weinstein's
Federal Evidence § 702.05[2], at 702-41 (1998) ..... 20
4 J. McLaughlin, J. Weinstein & M. Berger, Weinstein's
Federal Evidence § 702.06[3], at 702-38 ......... 12
19 J. Moore, Moore’s Federal Practice § 206.05{1], at
ee 6a tn he EO ao Rea Re eee 24
Paul D. Rheingold, The Basis of Medical Testimony, 15
Vand. L. Rev.473,; 478-314 (1962)... 5 ce cee 9
Rosenberg, Judicial Discretion of the Trial Court, Viewed
From Above, 22 Syracuse L. Rev. 635 (1971) ..... 25
2 Stephen A. Saltzburg, et al., Federal Rules of Evidence
Manual 1229 CT? 08. F998) vies enees Cece: 12
2 Stephen A. Saltzburg, et al., Federal Rules of Evidence
Diamendl LISO1T" OG. FOGG) oa cece ccs es 21
2 Stephen A. Saltzburg, Michael M. Martin & Daniel J.
Capra, Federal Rules of Evidence Manual 1237-1240
CFP a8 TO RE ee er ae eee res 7, 16, 17
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APPENDIX
Appendix A En Banc Opinion Of The United States
Court Of Appeals For The Fifth Circuit Dated August
14, 1998 Peas cana a
\ ppendix B — En Banc Order Of The United States Court
Of Appeals For The Fifth Circuit Dated And Filed
November 12, 1997
Appendix ¢ Panel Opinion Of The United States (
Of Appeals For The Fifth Circuit Dated October
1 ¢ 7
‘b>
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idix D Judgment Of [he ted S
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Petitioners pray for a writ of certiorari issue to review the judgment
of the United States Court of Appeals for the Fifth Circuit entered in thi
case on August 14, 1998.
OPINIONS BELOW
The panel opinion of the court of appeals (App. 53a) is reported at
126 F.3d 679. The order of the court of appeals granting rehearing en
banc (App. 51a) is reported at 126 F.3d at 716. The en banc opinion of
the court of appeals (App. la) is reported at 151 F.3d 269. The order of
the court of appeals denying rehearing (App. 143a) is unreported. TI
oral ruling of the district court (App. 140a) is unreported
STATEMENT OF JURISDICTION
ve
if
The judgment of the en banc court of appeals was entered on August
14, 1998. A. la. The timely filed petition for rehearing was denied on
September 18, 1998. A. 143a. This Court has jurisdiction pursuant to 2§
U.S.C. § 1254(1).
RULES INVOLVED
Rule 104(a) “Questions of admissibility generally” of the |
Rules of Evidence provides that:
Preliminary questions concerning the qualifications
person to be a witness, the existence of a privilege, o1
admissibility of evidence shall be determined by the
subject to the provisions of subdivision (b). In maki
determination it is not bound by the rules of evidence e»
those with respect to privileges.
Rule 702 “Testimony by Experts” of the Federal Rul
provides that:
If scientific, technical or other specialized kn
will assist the trier of fact to understand the eviden:
determine a fact in issue, a witness qualified as an expe
knowledge, skill, experience, training, or education
testify thereto in the form of an opinion or otherwise
STATEMENT OF THE CASE
Petitioners, a delivery truck driver for a motor freight com}
his wife, sued the premises owners of a chemical distributor of i1
chemicals tor personal injuries resulting from his exposure to industrial
chemicals while he was on those premises making a regular delivery
(he drums of industrial chemicals being delivered leaked resulting in a
spill on the trailer. Respondents’ plant manager declined to test the air on
the trailer for harmful contaminants, declined to show petitioner a copy
of the MSDS for the chemicals, refused petitioner's specific request for
| respirator, and refused to allow the truck to leave the premises until
petitioner cleaned up the chemical spill on the trailer. In the one hour of
exposure to the industrial chemicals while working on the non-ventilated
trailer, petitioner developed reactive airways disease (“RADS”), an
asthma-like disease caused by exposure to irritant chemicals. The lawsuit
was removed by respondents to the United States District Court for the
Southern District of Texas, asserting diversity jurisdiction under 28 U.S.C
§ 1332. Before trial the district court granted respondents’ motion it
limine precluding the presentation of the testimony of petitioners’
principal medical expert witness as to causation, Dr. Daniel E. Jenkins
until further order of the court. The district court’s oral ruling was based
n its review of Dr. Jenkins’ deposition testimony which was submitted
with respondents’ motion. That ruling was that Dr. Jenkins’ causatior
‘stimony was unreliable and inadmissible unless the court was presented
vith scientific literature establishing a causal link between exposure t
toluene mixture and RADS. A. 140a. It reserved decision on th
imissibility of his causation testimony to give Moore an opportunit
‘nt Dr. Jenkins’ live testimony to satisfy the court’s ruling
Dr. Jenkins’ testimony established that Dr. Jenkins had over
f experience in pulmonary and environmental medicine as ¢
i¢ Pulmonary Disease Section and later as Chief of the Environment
Medicine Section at Baylor College of Medicine and that he
iT)
osed the cause of over 100 patients’ injuries from ex
é
v4
halauon of industrial chemicals in occupational settings. A. 46a 1
Dr. Jenkins had previously treated other patients whose RADS he
ttributed to exposure to chemicals that were known to irritate th
irways.’ A. 7a. Dr. Jenkins saw Moore as a patient in his office three
umes shortly after the accidental exposure, which was 1-1/2 years before
this lawsuit was commenced. Dr. Jenkins examined Moore and performed
linical tests and procedures according to clinical medicine to diagnose
the cause of Moore's disease. A. 44a n.6. Dr. Jenkins testified in his
sv}
‘position in detail as to his clinical diagnosis of Moore and as to how
stimated the level of Moore’s exposure to the toluene mixtur
.
a
identified by the MSDS to be 200 parts per million or higher for a duration
of 45 to 60 minutes. A. 42a n.5. Dr. Jenkins testified from his specialized
medical knowledge, personal clinical experience and clinical
methodology and the medical literature that Moore’s RADS was caused
by his exposure to the toluene mixture. He also testified that any irritant
chemical can cause RADS. He identified two of the sources of literature
that he relied upon as Carl Zenz, M.D., et al., Occupational Medicine
(2d ed. 1988) and Stuart M. Brooks, M.D., et al., Reactive Airways
Dysfunction Syndrome (RADS), 88 Chest 376 (1985). A. 18a, 91a. All
the chemicals disclosed in the MSDS are known to be irritant chemicals
which he verified by references. He testified that the chemical nature of
toluene mixture 1s similar to that of chemicals found in studies to have
caused RADS and that other RADS patients he had diagnosed were
exposed to similar chemicals. A. 86a. After hearing Dr. Jenkins’ testimony
out of the presence of the jury, the district court adhered to its earlier
ruling that Dr. Jenkins’ testimony as to causation was not reliable and
not admissible under Fed. R. Evid. 702 because he had no medical
literature that said the exposure to the toluene mixture caused RADS
The jury’s verdict was that the negligence of respondents did not
proximately cause the injuries. A divided panel of the court of appeals
reversed and remanded this case for a new trial, holding that Dr. Jenkins’
ausation testimony was admissible and its exclusion affected the
bstantial rights of petitioners. On its own motion, the en banc court of
ippeals ordered a rehearing en banc. The en banc court of appeals affirmed
the judgment of the district court, holding that Dr. Jenkins’ causation
testimony was unreliable and not admissible under Daubert
\. The District Court’s Ruling
Ashland’s motion to exclude Dr. Jenkins’ expert testimony presented
grounds: (1) that Dr. Jenkins had no scientific confirmatory literature
that the toluene mixture was capable of causing RADS, and (2) that D1
Jenkins had no direct evidence as to the level of Moore’s exposure to the
chemicals. A. 44a. The district court’s oral ruling was that Dr. Jenkins’
ausation testimony as to causation was unreliable. The court specifically
enumerated two reasons: ““Number One ... [Dr. Jenkins] had no such
literature or research to back up such causation determination.” “Number!
[wo when asked about the specific substances detailed in the medical!
literature where exposure had led to reactive airways disease, Dr. Jenkins
admitted that those were much more harmful chemicals.” A. 14la. The
listrict court also ruled that the testimony was excluded under Fed. R
Evid. 403 because Dr. Jenkins’ unique qualifications would likely
influence the jury to believe his testimony. A. 141a. In other unenumerated
statements the district court also stated that since the MSDS is in evidence
and it states that the toluene mixture are irritants to the throat and nose
and may injure the lungs, Dr. Jenkins’ testimony is unnecessary, and that
Dr. Jenkins had no direct evidence as to the level of exposure. The district
court stated that Dr. Jenkins’ clinical methodology in diagnosing Moore
was “not what’s at issue in determining the basis for his opinion as to
causation.” A. 142a.
Bb. The Court of Appeals’ Reversal
A divided panel of the court of appeals reversed. A. 53a. The panel
held that the focus of the reliability inquiry as to Dr. Jenkins’ causation
testimony was whether his testimony was soundly grounded in the
processes customarily employed in his particular field and specialty in
clinical medicine. It held that “the opinion of Dr. Jenkins was soundly
grounded in the principles, experience and methodology of his discipline.”
A. 101a. It followed the Second, Third, Fourth and other circuits to hold
that a clinical physician may, consistently with Daubert, express an
opinion based on specialized medical knowledge, personal clinical
experience and clinical medical methodology, which is accepted within
that discipline, that a particular inhalant chemical caused a patient’s
disease, without hard scientific corroboration. It was unnecessary for
the panel to consider the narrow issue raised by the district court of
whether there was scientific literature to support a causal link between
the toluene mixture and RADS.
The panel summarized in detail Dr. Jenkins’ deposition and trial
testimony as to the basis for his opinion on causation in seven categorie
consisting of 342 pages of the opinion. Those categories were that Dr
Jenkins
|) Examined Moore personally: ..., 2) Personally took a
detailed medical history from Moore: ..., 3) Used
Differential Diagnosis and Etiology: . . .,4) Reviewed tests,
reports and opinions of other doctors: . . ., 5) Reviewed the
MSDS: . . ., 6) Referred to medical literature on the properties
~y
j
of irritant chemicals that cause RADS: .... 7) Utilized his
A. 88a-9la. The panel found that in diagnosing the cause of Moore's
disease Dr. Jenkins had followed the principles and methods of clinical
medicine including performing the criteria of a differential diagnosis.
A. 103a. It held that Dr. Jenkins had as much information about the
nature of the substances, the level of exposure and its duration than any
expert could possibly have in an accidental inhalation case. A. 101a-
103a. The panel held that the district court’s ruling was based on errors
of law, clearly erroneous factual findings and abuse of discretion. A.
99a-107a. The dissent stated that as a matter of law all expert testimony
as to medical causation is scientific and governed by the Daubert factors
A. 126a.
C. The En Banc Court of Appeals’ Affirmance
A divided en banc court of appeals affirmed the district court's
judgment. The majority adopted the reasoning of the dissent to the panel
opinion that as a matter of law all expert testimony as to medical causation
is scientific and must satisfy the Daubert factors. A. 44a n.6. It rejected
the reasoning of the panel opinion that the focus of the inquiry was the
discipline of the expert witness. The court rejected the holding of the
panel that Dr. Jenkins’ specialized medical knowledge, personal clinical
experience and clinical medical methodology satisfied Daubert. It stated
in effect that the panel opinion’s holding as to the admissibility of Dr.
Jenkins’ testimony stood for a holding that expert testimony based solel)
on experience or training satisfies Daubert. A. 44a n.6. It held that in the
Fifth Circuit expert testimony “based solely on experience or training”
must satisfy the Daubert factors. It then applied the Daubert factors to
Dr. Jenkins’ causation testimony. It focused on the scientific literature to
support a scientific expert’s opinion that the exposure to the industrial
chemicals can cause RADS. It found no contradictory literature. As to
confirmatory literature, it found that there was such literature but that it
was not a precise fit and therefore it did not support that testimony unde!
Daubert factors. The court stated the facts in barebone capsule form
only as those facts concerned the basis for its holding. A. 2a-5a The
court also held as a matter of law that Dr. Jenkins was required to have
direct evidence by scientifically accurate data of the level of Mr. Moore's
exposure. A. 20a n.10. It also held as a matter of law that an MSDS can
provide no support for a causation opinion, A. 19a, and that the temporal
connection between exposure and outset of symptoms is entitled to “little
weight”. A. 19a.
6
Judge King concurred in the result. Judge Benavides, while
concurring, stated that this case 1s “a close one” and the district court
would not have abused its discretion if it had admitted Dr. Jenkins’
Causation testimony.
The dissent written by Judge Dennis was joined in by Judges Stewart
and Parker. The dissent adopted and restated the reasoning and
conclusions of the panel opinion. The dissent pointed out that “the present
case does not involve ‘junk science’. . .”. A. 39a. The dissent stated that
the majority opinion conflicts with the decisions of other circuits and
well recognized scholarly commentary. Relying upon decisions from
other circuits, including the Second, Third and Fourth Circuits, the dissent
stated that the reliability of the testimony of a clinical medical doctor is
assessed according to the processes customarily employed in the expert’s
own discipline of clinical medicine. It found that interpretation of Rule
702 was corroborated by recent scholarly commentary of Professor
Michael Graham and others and by the report of the American College
of Trial Lawyers, 157 F.R.D. 571 (1994). It stated that the majority opinion
“retries” the Rule 104(a) determination by a de novo review rather than
properly review the process of that determination under an abuse of
discretion standard of review. A. 44a. The dissent stated that the majority
was wrong in substituting its own erroneous rulings and reasons for those
of the district court, and in disregarding the district court’s errors of law,
clearly erroneous factual findings and abuse of its discretion. Rehearing
was denied. A. 143a.
REASONS FOR GRANTING THE WRIT
I. THE COURT OF APPEALS’ DECISION CONFLICTS WITH
DECISIONS OF THIS COURT AND OTHER COURTS OF
APPEALS ON AN IMPORTANT MATTER’ OF
INTERPRETATION OF FED. R. EVID. 702 AND THIS
QUESTION OF FEDERAL LAW HAS NOT BEEN, BUT
SHOULD BE, SETTLED BY THIS COURT.
The Fifth Circuit's opinion — holding that a clinical medical doctor’s
testimony on the issue of causation 1s unreliable and inadmissible under
Daubert unless his testimony considered solely as a scientific expert
opining on hard science satisfies the Daubert factors — conflicts with
the decisions of other circuits that have written on the issue of the
reliability of a clinical medical doctor’s testimony as to causation on
important questions of federal law as to the interpretation of Rule 104(a)
and Rule 702 of the Federal Rules of Evidence. The Fifth Circuit's
decision also conflicts with this Court’s decisions in Daubert v. Merrill
Dow Pharmaceuticals, Inc., 309 U.S. 579 (1993), and General Electric
Co. v. Joiner, 118 S. Ct. 512 (1997). This issue has not been but should
be settled by this Court. The correct interpretation of Rule 702 presents
an important issue, particularly in view of the frequency with which this
issue arises in the lower courts. Certiorari is also warranted because the
decision below is erroneous. The Fifth Circuit’s opinion is not in the
mainstream of the current circuit-level decisions and it is contrary to
recent scholarly commentary. It is unique in creating and imposing a
special rule for the admissibility of expert testimony that concerns medical
causation. It is a draconian result-oriented decision intended to establish
the Fifth Circuit in the prohibited role as “super-expert” intended “to
scrutinize experts in such a way as to exclude all but the perfect expert
testimony.” See 2 Stephen A. Saltzburg, Michael M. Martin & Daniel J.
Capra, Federal Rules of Evidence Manual 1237-1240 (7" ed. 1998).
As stated in the dissent there were two grounds stated in respondents’
motion for the exclusion of Dr. Jenkins’ causation testimony: (1) the
alleged lack of confirmatory scientific literature of a causal link, and (2)
the alleged lack of direct evidence of the level of the exposure. A. 44a
Ashland’s motion did not challenge Dr. Jenkins’ specialized knowledge,
clinical experience or his clinical methodology in his diagnosis of the
cause of the disease or that this diagnosis of the cause was within the
processes customarily employed by medicai doctors in his field of clinical
medicine. A. 46a-47a. While the court of appeals based its holding on tts
conclusion that as a matter of law expert testimony as to medical causation
is scientific and subject to the Daubert factors, it also commented that
‘Dr. Jenkins gave ne reason why” his “training and experience and his
examination and tests” “were helpful in reaching his conclusion on
causation.” A. 18a. However, there was no issue raised by Ashland's
motion as to that aspect of Dr. Jenkins’ causation opinion and the district
court did not base the exclusion on that grounds. 46a-47a. The court of
appeals’ statement was contradicted by other statements including that:
“Dr. Jenkins’ qualifications are outstanding.” A. 6a n.2. “Dr. Jenkins
previously treated other patients whose RADS he attributed te exoosure
to chemicals that were known to irritate the airway.” A. 7a. The MSDS
stated that the chemicals were irritants to the respiratory tract and lungs.
A. 2a n.1, 6a, 19a. The court’s statement is contrary to the facts and
analysis stated in the panel opinion and in the dissent to the en banc
majority. A. 44a, 46a, 88a-9 1a.
[he court of appeals held that the focus of the reliability inquiry
was not on the clinical medical doctor’s discipline and the processes
customarily employed in that discipline including his specialized
knowledge, personal experience and clinical methodology but rather the
focus was on confirmatory scientific literature. A. 21a. It concluded that
“it was within the judge’s discretion to conclude that Dr. Jenkins’
testimony was not grounded in science as required by Daubert and its
progeny...’ A. 22a. The court of appeals also erroneously held that D1
Jenkins’ technical expertise and clinical experience and methodologies
of clinical medicine and medical literature could not support his specific
opinion that any irritant chemical can cause RADS. A. 12a, 21a. It held
that this opinion was also subject to the Daubert factors
\. The Decision Conflicts With Other Courts of Appeals’ Decisions
Contrary to the majority opinion, the First, Second, Third, Fourth
Eight and D.C. Circuits have held that a clinical medical doctor may
testify as to the cause of a patient’s injury or disease when his opinion
is grounded in the processes customarily employed by medical doctor
in his field of clinical medicine including his specialized knowledg:
personal experience and clinical methodologies.
Second Circuit. In McCullock v. H.B. Fuller Co., 61 F.3d
-d Cir. 1995), Judge McLaughlin writing for the Second Circuit
presented with similar facts to that presented in the court below and held
that an expert opinion based upon medical expertise, clinical experien
and clinical methodology satisfies Rule 702. The court of appeals held
that the testimony as to medical causation of a clinical medical doctor
(specialist in otolaryngology) was reliable as it was grounded
specialized knowledge and personal clinical experience and a range
factors utilized in his field of clinical medicine in diagnosing the cau
| patient's injuries and diseases.' In that case the causation opinion wa
that the patient’s vocal cord polyps were caused by her exposure to
chemical fumes at her workplace. 61 F.3d at 1043-44. The clinical medical
doctor based his opinion as to causation on “a range of factors” utilized
in his clinical practice (61 F.3d at 1044) which are essentially identical
to the range of clinical factors that Dr. Jenkins based his opinion upon
The Court stated that:
[Defendant] Fuller’s contention that [Dr.] Fagelson did
not base his opinion on “scientific knowledge” also fails. .
[Dr.] Fagelson based his opinion on a range of factors,
including his care and treatment of [plaintiff] McCullock;
her medical history (as she related it to him and as derived
from a review of her medical and surgical reports);
pathological studies; review of Fuller’s MSDS; his training
and experience; use of a scientific analysis known as
differential etiology (which requires listing possible causes,
then eliminating all causes but one); and reference to various
scientific and medical treatises. Disputes as to the strength
of his credentials, faults in his use of differential etiology as
a methodology, or lack of textual authority for his opinion
go to the weight, not the admissibility, of his testimony. See
113 S. Ct. at 2798 (“Vigorous cross-examination, presentatior
of contrary evidence, and careful instruction on the burden
of proof are the traditional and appropriate means of attacking
shaky but admissible evidence.’’)
61 F.3d at 1043-44. There was no direct evidence of the level
exposure. The Court held that circumstantial evidence as to the level at
duration of the exposure to the toxic chemical fumes was sufficient. ¢
F.3d at 1045. In Zuchowicz v. United States, 140 F.3d 381 (2d Cir. 1998
+
the Second Circuit reaffirmed its holding in McCullock. In bot
McCullock and Zuchowicz, as in the court below, human exposure t
, nt ad
medical literatur Sé@e McLa } 49 MAY
y nstew Feder } lence 4 ( | af ) 18) |
Rheingold, The Basis of Medical Testimony, 15 Vand. L. Rev. 473, 478-514 (19¢
lhe clinical method aiways proceeds in a series of logical steps.” | S. Pegal
H. Wachsman, American Law of Medical Malpractice 2d §
clinical technique of differential diagn
mose the cause of a di ise. /d
10
toxic substance in issue was a rare event so that there was no accumulated
studies of its harmful effects. Unlike the majority below, the court of
appeals properly dealt with the issue of admissibility of the clinical
medical doctor’s testimony under Rule 702 separately from the issue of
the sufficiency of the evidence of causation under the applicable state
law.
Third Circuit. In /n re Paoli R.R. Yard PCB Litig., 35 F.3d 717,
752-71 (3d Cir. 1994), cert. denied, 115 S. Ct. 1253 (1995), the Third
Circuit addressed the specialized medical knowledge and clinical
experience and methodology of two clinical medical doctors in terms of
the admissibility of their opinion on medical causation. Judge Becker
writing for the court held that a clinical physician’s technical expertise
and experience and methodology of differential diagnosis was sufficiently
reliable to support the admissibility of that expert’s opinion as to causation.
The Third Circuit applied the Daubert factors to that clinical methodology
to hold that it satisfied the Daubert factors. 35 F.3d at 758. “(I]t is a
method that involves assessing causation with respect to a particular
individual.” 35 F.3d at 758. While it is “a different type of science than
science designed to produce general theories; it does not make it unreliable
science.” 35 F.3d at 758. It “is a technique that has widespread acceptance
in the medical community, has been subject to peer review, and does not
frequently lead to incorrect results. . . .” Jd. In Holbrook v. Lykes Bros
5.5. Co., 80 F.3d 777, 781-83 (3d Cir. 1996), and in Kannankeril \
lerminix Int'l, Inc., 128 F.3d 802, 809 (3d Cir. 1997). clinical medical
doctors’ testimony grounded in clinical principles and methods were held
to be reliable and admissible as to the diagnosis of the cause of plaintiffs
Injuries or disease
~~
Fourth Circuit. In Benedi v. McNeil-PP.C., Inc.. 66 F.3d 1378.
1384-85 (4th Cir. 1995), the court of appeals held that clinical expertise
and experience and methodologies commonly used by clinical medical
physicians in diagnosing patients were reliable. The court stated that
‘We will not declare such methodologies invalid and unreliable in light
of the medical community’s daily use of the same methodologies in
diagnosing patients.” 66 F.3d at 1384.
Kight Circuit. In Hose v. Chicago Northwestern Transp. Co., 70
F.3d 968, 973 (8th Cir. 1995), and in Clark v. Heidrick, 150 F.3d 912.
915 (8" Cir. 1998), the court of appeals held that clinical medical doctors
tesumony as to causation based on technical expertise and clinical
experience and methodology was reliable and admissible.
1]
D.C. Circuit. In Ambrosini v. Labarraque, 101 F.3d 129, 139 (D.C.
Cir. 1996), cert. denied, 117 S.Ct. 1572 (1997), the court of appeals held
that clinical medical doctors could testify as to causation based on
technical expertise and clinical experience and methodology.
First Circuit. In Baker v. Dalkon Shield Claimants Trust, 156 F.3d
248, 252-53 (1* Cir. 1998), the court of appeals held that defendants’
expert witness, a clinical medical doctor and gynecologists, should have
been allowed to testify based on technical expertise and clinical experience
and the clinical method of differential diagnosis as that method is “widely
used in medicine” and was reliable.
These conflicts justify the grant of certiorari to review the judgment
below.
The narrower holding of the court of appeals’ that a clinical medical
doctor’s testimony based on “experience or training”’ is not reliable unless
it satisfies the Daubert factors, A. 12a n.6, also conflicts with decisions
of other circuits on important questions of federal law as to the
interpretation of Rule 104(a) and Rule 702 of the Federal Rules of
Evidence. Review by this Court is therefore warranted on that narrower
issue as Well. As to the narrower issue, the following circuits, among
others, have held that expert testimony based on experience and skill
satisfy Daubert and Rule 702 and therefore conflict with the court below
Carmichael v. Samyang Tire, Inc., 131 F.3d 1433, 1434 (11" Cir. 1997),
cert. granted, 118 S. Ct. 2339 (1998); McCullock v. H.B. Fuller Co., 61
F.3d 1038, 1043 (2d Cir. 1995); Lauria v. National R.R. Passenger Corp.,
145 F.3d 593, 599 (3d Cir. 1998); Talkington v. Atria Reclamelucifers
Fabrieken BV, 152 F.3d 254, 265 (4" Cir. 1998); Compton v. Subaru of
im., Inc., 82 F.3d 1513, 1519 (10" Cir. 1996); McKendall v. Crown
Control Corp., 122 F.3d 803, 806 (9" Cir. 1997); Desrosiers v. Flight
Int'l of Fla., Inc., 156 F.3d 952, 960-61 (9" Cir. 1998).
As to this narrower issue, Rule 702 provides that where specialized
knowledge (such as medical knowledge) will assist the trier of fact, a
witness qualified as an expert by knowledge, skill, experience, training
or education may testify. The expert’s “background and practical
experience qualify as ‘specialized knowledge’ gained through
‘experience, training, or education... .” McCullock v. H.B. Fuller Co.,
61 F.3d 1038, 1043 (2d Cir. 1995). The Daubert factors should not be
ipplied to expert testimony that 1s based on “conclusions drawn from
T
pinion based on experience is sufficient if the experience is “dire
‘ oY : . | . l,l. | 7T. TT, LY > ao Tor P|
istexperience.” 4 J. McLaughlin, J. Weinstein & M. Berger, Weins
} / ’ cr WS NeI49 7 > +) OO > ) —_ —_—" rare
ral Evidence §& 702.05[2], at /G2-32 (19¥¥o). KRather, an expe
r T
related to the subject matter.” /d. § 702.06[3], at 702-38. As to the
|
t
rrower issue of the clinical medical doctor's causation testimony
experience and skill, the above decisions of the First, Second, TI
rh
| }
urth, Eight and D.C. Circuits also support the conclusion that an exper
pinion based upon technical expertise and experience satisfies Dau
1 Rule 702. In clinical medicine the “significant stature and expert
1 medical specialty and the “thirty years of experience as a p
ird-certified [specialist] have been held to be evid
expert S Opmion
Vhs]
A/? } } >} + t?
Whoie SUCHM CVIacnce SuUdl C Lie
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{ nt oan t) tions to tect 1] }
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' try ; nti ion ¢ ‘ +}
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t t} ' tr \T fe
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\ ila pre ented in Carm Nae Samya I ( i I
a at . ~y ) ’ »799 eh .
,(11" Cir. 1997). cert. eranted, 118 S. Ct. 2339 (1993). As the ex]
} | ’ ‘ .¢ } . » ! wr » |
armichael. Dr. Jenkins’ testimony 1s not based on hard science. |
1 } | : ' . : .f 7h To. ry
urmichael, Dr. Jenkins’ causation opinion was formulated p!
tigation in doing his day-to-day work and not as a hired-to-tesufy altet
fact expert. Unlike Carmichael, Dr. Jenkins’ testimony 1s also b
n specialized knowledge within his discipline and is based on
ethodology of that discipline. His specialized knowledge and cli
xperience operate within the methodologies and the proce
tomarily employed by medical doctors in his field of clinical medi
\ ! Carn Q tne D ibert |} } t i) if }
ed
Recent Scholarly Commentary and the Proposed Amendment
to Rule 702 Supports the Conclusion That the Clinical Medical
Doctor’s Testimony Is Reliable.
In Michael H. Graham, The Daubert Dilemma: At Last A Viab
n? 179 ER.D. 1. 13-14 (1998), Professor Graham states that
It is suggested that Daubert be interpreted to impose
reliability screening with respect to “technical or othe!
pecialized knowledge” [whether acquired by experience 01
therwise] ..., based on an adequate foundation of facts
lata, or opinions, including those reasonably relied upot
inder Rule 703, limited to a determination that the explanat
theory is neither “speculative nor conjectural.
t speculative or conjectural when the expert's n ethod
bi til |
nique (explanative theory) “has gained widespread acce]
' ticular field t wih h fit] hel ’ ' wn ft r)
DartiCuladl field to wnicn PAU} peiongs or 18 SsnNoOWN LO POs
: ’ rmartl tr} ti hina j ‘ 1 Tr
larized earmarks to trustworthiness.” /d. at 14. }
1] ve i 1O t ’ ' > > Yr) r |
‘nerally speaking, particularized earmarh
istworthiness should be found to be established 1f
-xpert’s explanative theory [methodology or technique]
hown to have been derived and employed in a mannet
ynsistent with processes customarily employed by expert
the particular field, which can be stated in the alternative
(1) adheres to the same standards for intellectual rigor
iemanded in the expert’s professional work, (2) conforms
to applicable professional standards employed outside the
urtroom, (3) possesses the aura of proper expert
methodology, or (4) is soundly grounded in the principles
ind methodology of the particular field. Herein lies the
potential solution to the Daubert dilemma. Clearly, sever
} ? ; ’
urts nave alread) moved Qa « onsiderable way towara
way
foregoing reasoning
it 14-16 (emphasis in original). The cases that Professor |
dg upon for the last statement in iuded tf
7,
ic é
|
l
Moore v. Ashland Chemical, In
126 F.3d 679. 682 (5
Cir. 1997) (“A trial judge assessing the reliability of the
proffer of a clinical physician’s expert testimony based
on clinical medical knowledge should determine whether
t is soundly grounded in the knowledge, principles and
methodology of clinical medicine; the ‘Daubert factors
vhich are techniques derived from hard science
methodology, are, as a general rule, inappropriate for
use in making the reliability assessment of expert medical
iCUIL di
testimony. ).
] IS ‘s 1p } Idino f tha sainal nane ninn in A
16 n.25. Thus, the holding of the original panel opinion in M
sor ) " Y aos Ie ’ _— ; ] + 77 : | ne ]
ved Professor Graham’s approval. Professor Graham specifica!
oncerning | diagnosis
Clinical Medical dla
with respect to medical clinica
sues. focusing on particularized earmarks of trustworthiness
uld be asking the trial judge to be ascertaining whether
- given explanative theory [methodology or technique] wa
lerived in a manner consistent with the processes customarily
‘mployed by experts in the field ... [T]he trial court is
the
ooking toward experts in the particular field to which
explanative theory [methodology or technique} belongs to
certain whether the explanative theory is sufficiently
ustworthy, i.e. not speculative or conjectural, for the jury
consider. Daubert, so interpreted, would remove the trial
judge from becoming an amateur scientist. The trial judge
was true under Frye, would instead be looking toward the
particular field in which the explanative theory belongs to
inform the court as to whether the explanative theory 1s
sufficiently trustworthy to be presented to the jury for
rhe recent Proposed Amendment to Rule 702 was adopted from
posal by Professor Michael Graham. See 2 Stephen A. Saltzburg
Michael M. Martin & Daniel J. Capra, Federal Rules of Evidence Manual
1998). The Proposed Amendment to Rule 702, which
()
~ m+}
[2751 (7 ee.
eporter for Advisory Committee
r the Judicial Conference’s Proposed Amendment to Rule
15
extends the Daubert gatekeeping function to all experts, provides, in
part, that expert testimony is reliable and admissible if ‘(2) the testimony
is the product of reliable principles and methods. . . .” Committee on
Rules of Practice and Procedure of the Judicial Conference of the United
States, Preliminary Draft of Proposed Amendments to the Federal Rules
of Civil Procedure and Evidence 122 (August 1998). The Committee
Note indicates that the principles and methods are those of the expert's
field or profession. /d. at 124-27. It is stated that the Daubert factors are
not codified as many of the Daubert factors are unadaptable “outside the
hard sciences... .” Jd. at 126. “The proposed amendment does not
distinguish between scientific and other forms of expert testimony.” /a
at 127. “[T]he relevant factors for determining reliability will vary fr
expertise to expertise. . . .’ Jd. The Committee Note states that:
Some types of expert testimony will not rely on anything
like a scientific method, and so will have to be evaluated by
reference to other standard principles attendant to the
particular area of expertise. The trial judge in all cases of
proffered expert testimony must find that it 1s properly
grounded, well-reasoned, and not speculative before it can
be admitted. If there is a well-accepted body of learning and
experience in the expert’s field, then the expert's testimony)
must be grounded in that learning and experience to |
reliable, and the expe-t must explain how the conclusion
so grounded.
Id. at 127. “While the terms ‘principles’ and ‘methods’ may convey
impression when applied to scientific knowledge, they remain relevant
when applied to testimony based on technical or other specialized
knowledge.” Jd. at 128. An example is given of testimony based or
experience. It is stated that the method used by such an expert 1s the
application of his extensive experience to analyze the specialized facts
the subject of the testimony. /d. It is also stated that: “If the witness |
relying solely or primarily on experience, then the witness must explait
how that experience leads to the conclusion reached.” /d. at 128.
In American College of Trial Lawyers, Standards and Procedures
for Determining the Admissibility of Expert Evidence After Daubert, \57
F.R.D. 571,577 (1994), it is stated that the testimony of an expert should
be judged by the principles and methods applicable to his particular field
\nd the general acceptance of a methodology within
particular discipline will be crucial in many cases. .. . The
inquiry to be made concerns the fundamental principles by
a
which the validity of a methodology is to be judged in the
particular field of knowledge
$79
1 2 Stephen A. Saltzburg, Michael M. Martin & Daniel J. Capra
Federal Rules of Evidence Manual 1237-1240 (7" ed. 1998). the authors
under the heading “Good testimony after Daubert’, approvingly disci
lecisions of the Second, Third, Fourth, Eighth, and D.C. Circuits, which
ipproved expert testimony based on specialized medical knowledge an
sonal clinical experience and clinical methodology. It is statec
[t must be stressed that while Daubert assigns Trial Judge:
he role of gatekeepers, it does not authorize Trial Judges 1
t
as “super-experts’’, or to scrutinize experts in sucl
: to exclude all but the perfect expert testimony
39. It is stated that:
[In most areas of non-scientific expert testimony thet
vell-accepted practices and methodologies that are used
lf the expert follows these accepted practices, the testimony
will be found admissible without regard to Daubert
1OA
42. Further, that
If there is a well-accepted body of learning and experienc
in the field, then the expert’s testimony must be grounded 11
that learning and experience to be reliable
at 1244. It is stated that:
scientific expert’s testimony will be admissible if she
employs the same methodology in reaching her conclusio1
as she would employ if working as a scientist in the real
world. If the methodology is good enough for the real world,
it is good enough for a trial. On the other hand, if the
methodology 1s altered for the purposes of litigation, there is
every reason to exclude it after Daubert. As Judge Posner
has put it, the object of Daubert is to assure that “experts
adhere to the same standards of intellectual rigor that are
demanded in their professional work.”
i tl
s 4
}
rei
sis
17
Id. at 1239. Stated another way: “The task of the gatekeeper after Daubert
is to ensure that the expert reached her opinion by the same avenues that
the expert uses in her day-to-day work.” /d. at 1240. The authors discuss
a case which presented similar facts to that presented in this petition
‘Judge McLaughlin put it best in McCullock v. H.B. Fuller Co., 61 F.3d
1038 (2d Cir. 1995).” Jd. They approvingly review in some detail the
facts and holding in McCullock in which it was held that expert opinions
one a clinical medical doctor and the other an engineer — based upon
technical expertise and experience and methodology satisfies Rule 702
The engineer based his testimony on his extensive practical experience
and consideration of the facts in issue. The clinical medical doctor based
his testimony on his clinical experience with the plaintiff and his
pecialized knowledge and clinical methods and procedures. They
nclude that: “Under these circumstances, the Court found that an:
lispute as to the experts’ lack of specialization, flaws in methodology, or
ck of textual authority went to weight and not admissibility.” /d
lhe basic principle derived from the recent scholarly commentar'
‘
Professor Graham and Professors Saltzburg, Martin and Capra, and
thers, and the Proposed Amendment to Rule 702 is that the focus of the
reliability inquiry is the expert’s discipline. An expert's testimony
liable and admissible if it was derived and employed in a manne!
sistent with processes customarily employed in the particular field
f that expert. Stated another way by Professors Saltzburg, Martin and
Capra, the expert who reaches his opinion by the same avenues that the
expert uses in his day-to-day work should be allowed to testify. Where
the expert reaches his opinion by specialized knowledge and personal
experience and by the use of same methodology in reaching his
testimony’s conclusions as he would employ if working in the real world,
his expert testimony is sufficiently reliable. A clinical medical doctor
arrives at his opinion in the diagnosis of a patient’s disease and its causes
strictly by the same processes customarily employed in clinical medicine
and he reaches his opinion by the same avenues that he uses in his day
to-day work. Dr. Jenkins’ method was the application of his extensive
clinical experience to clinically test Moore using standard clinical
principles and methods to determine his disease and its cause. His method
was reliable as it is trustworthy in his discipline. He followed the principles
and methods of his field of clinical medicine to arrive at conclusions in
his work which was unconnected to litigation. Therefore, his testimony
is reliable and admissible.
Re
Dr. Jenkins did not extrapolate from an accepted premise to an
unfounded conclusion. Unlike the situation in General Electric Co.
Joiner, 118 S. Ct. 512 (1997), which involved “far-removed animal
studies” and irrelevant epidemiological studies, there was no analytical
gap between the data and the opinion proffered. Dr. Jenkins relied upon
his over forty years of experience in pulmonary and environmental
medicine including that with other RADS patients and the extensive
clinical data on Moore, and clinical diagnostic techniques, as well as Dr
Brooks article and Dr. Zenz’s treatise, to formulate his opinion as to
causation and that opinion was then utilized by Dr. Alvarez to treat Moore
for RADS.
Accordingly, the Fifth Circuit is wrong on the law in holding that
Dr. Jenkins’ testimony as to causation was unreliable and inadmissible
y the Daubert factors, because his testimony was adequately grounded
his specialized medical knowledge and personal clinical experience
clinical medical methodology and the processes customaril
ployed by medical doctors in his field of clinical medicine.
C. The Decision of the Court of Appeals Is Erroneous
he district court’s initial pre-trial ruling — a ruling which it adhered
at trial — was that Dr. Jenkins’ testimony had to be grounded in science
s the experts in Daubert, 1.e., hired-to-testify scientific experts. A. 140a
[he district court’s ruling was based on an erroneous view of the law
that Daubert required that all experts be viewed as hired-to-testify
scientific experts as the experts were in Daubert. Dr. Jenkins was a clinical
medical doctor and his testimony was based on specialized medical
knowledge, personal ciinical experience and clinical methodology. His
specialized knowledge and personal clinical experience operated within
the methodologies and processes customarily employed in clinical
medicine. Since the district court’s ruling failed to consider Dr. Jenkins’s
field or discipline as the focus of the inquiry, its ruling is clearly erroneous
The court of appeals made the same errors of law.
By focusing on “medical causation”, rather than the expert’s
discipline, the court of appeals made an error of law and based its opinion
on an issue not before it. Whether there was sufficient evidence of medical
causation for the case to go to the jury is an entirely different issue than
that of the admissibility under Rule 702 of Dr. Jenkins’ testimony as to
causation. The former is controlled by the applicable state law in a
diversity case and the latter is controlled by Rule 702. While if there had
19
been insufficient evidence of causation in the record the district court
could have granted judgment as a matter of law, that is a separate issue
from the admissibility of the expert testimony. See Raynor v. Merrell
Pharmaceuticals, Inc., 104 F.3d 1371, 1374-75 (D.C. Cir. 1997), in which
that court states its view that epidemiological evidence generally trump
non-epidemiological evidence and where the effects of exposure to toxic
substances has been the subject of significant studies, clinical evidence
is insufficient to establish causation. Such holdings are confusing the
issue Of the Rule 702 determination with the issue of whether o1
there is sufficient evidence of causation to avoid a granting of judgment
as a matter of law. The jury should hear the clinical expert testimony if 11
satisfies Rule 702. The district court can grant a judgment as a matter of
law if the overwhelming epidemiological evidence is to the contrary
The premise of the court of appeals’ holding that a clinical medica!
doctor cannot testify to the cause of a patient’s inhalation injuries from
an accidental exposure to industrial chemicals without confirmatory
scientific literature 1s not sound science. Many courts and legal
commentary have employed common sense to recognize that the situation
of a lack of confirmatory evidence to support a causation opinion
fundamentally different from the situation where there is contradictory
evidence. Because there is a lack of data of the effects of human inhalation
exposure to many industrial chemicals, including those here, the lack of
confirmatory data does not scientifically prove anything. In that situation
to hold that a person loses his claim for that reason simply penalizes him
for having the misfortune to be exposed to chemicals without accumulated
data. On the other hand, contradictory evidence is a different matter
Here, the only issue raised was that of a lack of confirmatory evidence
Ashland did not present any contradictory scientific evidence of any kind
nor did it present any contradictory evidence as to Dr. Jenkins’ specific
opinion testimony that any irritant chemical can cause RADS. Different
factual and policy considerations are presented in the situations presented
here of isolated accidental inhalation injuries as opposed to situations of
oral ingestion of drugs or, exposure to insidious and carcinogenic disease
causing substances requiring a latency period.”
3. Legal commentary has stated that “mass exposure cases differ ft
isoiated exposure cases with respect to the nature and quality of scientific evidenc
that 1s necessary in order for the plaintiff to make out a submissible case on
causation.” Boston, A Mass-Exposure Model of Toxic Causation: The Content
(
20
Dr. Jenkins’ opinion was formulated by the processes customarily
mployed in clinical medicine soon after the injury and some | years
before the commencement of the lawsuit. In fact, Dr. Jenkins’ opinion
that Moore’s injuries arose from the exposure to the toluene mixture on
\shland’s premises formed the basis for Moore’s subsequent trea ent
Dr. Alvarez. “The reliability requirement [of Daubert] is designed to
*xclude so-called ‘junk science’... .” See 4 J. McLaughlin, J. Weinstein
M. Berger, Weinstein’s Federal Evidence § 702.05[2], at 702-41 (1998)
lhe decisions of the courts of appeals agree. For example, in Binakonsky
Ford Motor Co., 133 F.3d 281 (4" Cir. 1998), the court of appeals held
hat Daubert does not apply to the expert testimony as to the cause of the
eath given by a medical doctor-pathologist in part because ascertaining
cause was part of her work, experience and training and was done in
r day-to-day work unconnected to any litigation. In Watkins v. Telesmit!
191
[21 F.3d 984, 99] (5" Cir. 1997), the court of appeals stated that the
& 4
}
1ubert factors were intended to ascertain whether the expert is “‘a hire
r, on the other hand, a person whose opinion is generally accepted
his field or discipline. In Daubert v. Merrell Dow Pharmaceutica:
43 F.3d 1311, 1317 (9" Cir.), cert. denied, 116 S. Ct. 189 (1995
\
court of appeals stated that the proponent of expert testimony ca
nade a prima facie showing that the evidence satisfies Rule 702
reliability requirement by showing that the testimony grows out of pr¢
litigation work. Since junk science was not involved here, the court
' ] ’ ] , 1 cy
appeals analysis was wrons
Pr nd the Regulatory Experier
| (1993). “In the mass exposure litigation the courts, for the most part
manded more compelling and rigorous proof of generic and individua
in isolated exposure litigation.” /d. at 207
[hose demands for proof reflect the greater availability
*vidence, the necessity for development of such evidence becau
f the greater public health concerns engendered by mass exposure:
as well as concerns for uniformity, consistency, deterrence, and
fairness
“Science knows less about the toxic properties of substances in [1
sure] litigation because there has been less need to learn the answers t
xiclty question: human exposures occur less frequently and are unintended
Boston, Toxic Appo yment: A Causation and Risk Contribution Model, 25 Envtl
Law 549. 622 (1995
2]
As stated in Part II below, the court of appeals’ finding de novo that
Dr. Brooks’ article failed to reach conclusions and was speculative was
clearly erroneous as that article did reach specific relevant conclusions
and was not speculative.
The court of appeals erroneously held as a matter of law that an
MSDS cannot support a clinical medical doctors’ opinion unless he knows
what tests were utilized in the preparation of the MSDS and what levels
of exposure the tests were based on. A. 19a. The court of appeals stated
no case authority or other authority to support its holding. The law does
not support its holding. The MSDS is required by law (29 C.F.R.
§ 1910.1200(g)(5) (1989)) to contain scientifically accurate information
as to each hazard determination. See Dole v. United Steelworkers of
America, 494 U.S. 26, 30 (1990); Martin v. American Cyanamid Co.,
5 F.3d 140, 145 (6" Cir. 1993). It is generally accepted for clinical
physicians to obtain and rely upon the contents of the MSDS.? See, e.z.,
McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1043-44 (2d Cir. 1995). By
stipulation, the MSDS was in evidence and was relied upon without
objection by both Moore’s experts and Ashland’s expert. See 22 C. Wright
& K. Graham, Federal Practice & Procedure § 5194 (1978).
The court of appeals erroneously held that the temporal relationship
between the exposure and the start of the symptoms of the disease has
no significance to the clinical opinion. A. 19a. The court of appeals stated
no case authority or other authority for its holding. The law does not
support its holding: “the short time between exposure and injury may
itself be enough for a scientist to draw a conclusion about causation.” 2
Stephen A. Saltzburg, et al., Federal Rules of Evidence Manual 1234 (7"
ed. 1998). The temporal relationship is one factor considered by the
clinical medical doctor in the clinical methodology. It is also a matter of
common sense. Under state law the temporal relationship between the
exposure and the start of the symptoms of the injury or disease has been
held to establish causation. See Morgan v. Compugraphic Corp., 675
S.W. 2d 729, 733 (Tex. 1984). “We believe this evidence establishes a
sequence of events from which the trier of fact may properly infer, without
the aid of expert medical testimony, that the release of chemical fumes
4. See Carl Zenz, M.D., et al., Occupational Medicine 213, 220 (3d ed
1994), in which it is stated that the clinical physician should obtain the MSDS to
identify the chemicals that the patient was exposed to and “their physical and
health effects.”
] Mi
ss i
1 n as i.
[Th ourt of appeals erroneously he itte ft lay itd
‘ smra kh an : . | ‘ 7 la >] thea r t;
lence by scientifically accurate data of the level of the patie
«posure was required. A. 20a, 21a. The court of appeals stated no cast
iuthority or other authority for its holding. The law does not support it
holding. There is no distinction between direct and circumstant
vidence. See | Michael H. Graham; Handbook of Federal Evidence
101.1 (4% ed. 1996). Circumstantial evidence of the level of exposure
ufficient. See, e.g., McCullock v. H.B. Fuller Co., 61 F.3d 1039, 1045
’d Cir. 1995); Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802, 808 (3d
1997): Hose v. Chicago Northwestern Transp. Co., 70 F.3d 968, 974
Cir. 1995); Holbrook v. Lykes Bros. S.S. Co., 80 F.3d 777, 780 (3d
1996). In the situation of injury from accidental inhalatior
dustrial chemicals in the workplace, circumstantial evidence is in fa
» only evidence available. In such a situation, it is always impossib
produce direct evidence by scientifically accurate data of the level |
<posure. The court of appeals overlooked important policy
siderations. Requiring anything more than the best evidence available
vill encourage employers and premises owners to stop the current practice
Of maintaining meters to test the air for harmful contaminants. It will
encourage them to never test the air when there is a suspected harmful
ntaminant in the air. According to the court of appeals’ opinion, a
premise owner can never be held liable unless it tests the air.
Il. THE STANDARD OF REVIEW APPLIED BY THE COURT
OF APPEALS CONFLICTS WITH DECISIONS OF THIS
COURT AND OTHER COURTS OF APPEALS’ DECISIONS.
The Fifth Circuit’s opinion conflicts with decisions of this Court
ind other circuits on the important questions of federal law as to the
standard of review. Review by this Court is therefore warranted. The
court of appeals stated that the standard of review was that of abuse of
discretion. However, the court failed to articulate the scope and contents
of the review it was conducting. The court failed to consider the particulars
of respondents’ motion and the deposition testimony submitted on that
motion and it failed to consider the particulars of the district court’s
justifications for its ruling on that motion. The court in fact failed to
apply an abuse of discretion standard. The court in fact conducted a
plenary review for the purpose of justifying the exclusion. The court in
‘
’ > ‘ r Ki > le ale | > > ort?” 7 > cy “— i? rii 7
act acted 1n a prohibited role as a “‘super-expert” intended “to scrutiniz
experts in such a way as to exclude all but the perfect expert testimony
and it sanctioned a similar role by the district court. The court based a
part of its opinion on evidence not in the record, it make findings of fact
de novo, it made findings of fact contrary to the stipulated facts and
ontrary to the facts stated by both parties in their appellate briefs, it sua
ponte raised and decided issues not argued by the parties, and it m:
‘rroneous pronouncements of the law. While the difference in the fact
tated in the dissent as contrasted to that stated in the majority opini
resulted in part from a different view of the applicable law, it principa
resulted from the fact that the dissent conducted a proper abuse
cretion review and the majority did not. The dissent stood in the shoe
{ the district court in its review, it read the motion, it read Dr. Jenkin
deposition testimony (submitted by Ashland on the motion) and the other
evidence submitted on that motion and it read the district court’s ruling
[he majority totally ignored the particulars of the motion, ignored Dr
Jenkins’ deposition testimony and focused on selective trial testim
ven after the district court’s in limine ruling.
In essence, the court of appeals’ result-oriented holding was that
\shland had presented a differently stated motion, and had properly cros
examined Dr. Jenkins as to the basis for his opinion, and presented prope!
rebuttal evidence, Dr. Jenkins’ opinion could have been shown to lack
adequate support to establish causation. The court of appeals did not
take the record as it existed before the district court, rather it created a
hypothetical record based on what the motion could have said and what
it thought could have been developed and ruled on that basis. It also did
not take the district court’s ruling as it was stated, but created
hypothetical ruling based on what that court could have said based o1
the hypothetical facts.
h \
DY
The proponent of the expert evidence must establish
preponderance of the evidence that the conditions for admissibility are
satisfied. See Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S
579, 592 n.10 (1993); Bourjaily v. United States, 483 U.S. 171, 175
(1987). This Court held in General Electric Co. v. Joiner, 118 S. Ct. 512,
517 (1997), that abuse of discretion is the proper standard of review of a
district court’s ruling excluding expert testimony. “However, such
discretionary choices are not left to a court’s inclination, but to its
judgment; and its judgment is to be guided by sound legal principles.
ermarie Paper Co. v. Moody, 422 U.S. 413, 416 (1975). Discretionar
,
ices “hardly means that it is unfettered by meaningful standard
hielded from thorough appellate review.” /d. This Court in Joiner stated
“the appellate court will not reverse in such a case. unless the ruling
erroneous.” 118 S. Ct. at 517. It is
. tery a Triste,
uniformly recogni;
iduse of discretion standard has also been described a
requiring a showing that no reasonable person would have
treed with the lower court's ruling or as resulting because
the trial court based its decisions on an erroneous view
ie law or on a clearly erroneous assessment of the facts
McLaughlin, J. Weinstein & M. Berger, Weinstein’s Federal |
.02[2 102-7 to 702-8 (1998). See 19 J. Moore. Moore's }
y he
206-29 (1998). Stated another wav
\ of discretion can occur in three principal lys: Wh
levant factor that should have been given significant
nt 1s not considered; when an irrelevant or improps
lor 1s considered and given significant weight: and whe
proper factors, and no improper ones, are considered
ourt, in Weighing those factors, commits clear err
ligmen
hards v. Aramark Services, Inc., 108 F.3d 925, 927 (8th Cir. 199
Pie rce v. l nderwood. 18 / U.S 560. 574 ( 1988) RY. Chil I]
indard of Review Primer, 125 F.R.D. 319, 337 (1988).
The first principle of an abuse of discretion review is that the court
appeals stands in the district court’s shoes. “It is important that the
reviewing court evaluate the trial court’s decision from its perspective
when it had to rule and not indulge in review by hindsight.” Old Chief \
United States, 117 S. Ct. 644, 651n.6 (1997). The appellate court
prohibited from deciding factual issues de novo. Anderson v. City of
Bessemer City, N.C., 470 U.S. 562, 573 (1985). Therefore. the court of
appeals must consider the particulars of the district court’s ruling and
the particulars of the motion before that court that resulted in that ruling
7
iS
and any evidence offered by the parties in support of their positions prior
to the ruling. Anything more, is a de novo review. See. e. g., Sementilli \
[rinidad Corp., 155 F.3d 1130, 1133-34 (9" Cir. 1998). in which the
court of appeals held that the district court abused its discretion in
Ss UO
excluding expert testimony by considering each of the reasons given by
that court for the exclusion and discrediting each reason.
lhe second principle of an abuse of discretion review is that the
ourt of appeals reviews the particulars of the district court’s holding, o1
lack thereof, in terms of the applicable law. Where the controlling rule
Supreme Court decisions provides for criteria to be considered or
applied, those criteria must be considered or applied by the district court
and the district court must state substantial justification for it
letermination. See, e.g., Cooter & Gill v. Hartmarx Corp., 496 U.S
384, 405 (1990). See Friendly, /ndiscretion About Discretion, 31 Emory
L.J. 747, 770-71 (1982); Rosenberg, Judicial Discretion of the Trial Court
Viewed From Above, 22 Syracuse L. Rev. 635, 666 (1971). The focus of
the review 1s the district court’s stated justifications for its ruling, the
particulars of the motion and the evidence submitted on the motion. See,
g., Pierce v. Underwood, 487 U.S. 552, 558-59 (1988). In General
Electric Co. v. Joiner, 118 S. Ct. 512, 518-19 (1997), this Court reviewed
the opinion of the district court — eight pages of that opinion stated that
court’s justifications for the exclusion of the expert witnesses. (864 F
Supp. 1310, 1319-27). This Court reviewed what the district court said
and not what it could have said. As to the one issue on which the district
ourt said nothing, this Court remanded the case for a determination on
that issue. 118 S. Ct. at 519. It did not — as the court of appeals below
hold that the district court’s holding could have been based on facts
that could have been developed and on aspects of the law unconsidered
by that court.
The majority in fact failed to conduct an abuse of discretion review
Nowhere in its opinion does the majority state the justifications stated
by the district court for its ruling. Nowhere in that opinion does the
majority state the grounds for Ashland’s motion or discuss Dr. Jenkins’
deposition testimony and other evidence submitted on that motion. It
repeatedly uses such phrases as “the district court was entitled to find o1
conclude”, A. 19a, 21a, in a hypothetical sense as the district court made
no such findings and stated no such conclusions. The district court failed
to follow the law to focus its reliability inquiry on the expert’s discipline.
lt failed to apply the proper criteria for that determination and in fact
applied improper criteria. The court of appeals failed to review that
determination. In fact, the majority not only wrote the district court’s
opinion for it — what it should have said when it made its determination,
] al be . ‘ r 4 ah ‘ y mn t i!
ilso wrote Ashland’s motion for it What grounds it shoul
tated in that motion. The focus of the motion was Dr. Jenkins’ depositior
testimony which the majority ignored
rhere is further proof that the court of appeals conducted a one
sided plenary review intended to justify the exclusion and made prohibited
findings of fact de novo to support the exclusion. The court of appeals’
opinion stated that: “The Brooks study relied upon by Dr. Jenkins suffered
from the same self-doubts as the studies in Joiner.” A. __. Further, that
“Dr. Brooks was unable to reach any conclusions based on his isolated
studies.” A. 16a n.8. And further stated that: ““With respect to the Brooks
le, item 3 above, the authors made it clear that their conclusions
rticie,
speculative because of the limitations of the study
i«
r
lS8a. Dr. Brooks’ article, Reactive Airways Dysfunction Syndrome
1DS), 88 Chest 376 (1985), 1s not in the record. Before the distri
rt it was testified to by Moore's two clinical medical doctors D1
nkins and Dr. Alvarez — and by Ashland’s clinical medical doctor, D1
None of them testified that Dr. Brooks was unable to reach any
clusions. None of them testified that his conclusions were speculative
fact, Ashland in its briefing before the Court of Appeals never argued
it Dr. Brooks article was speculative or that Dr. Brooks was unable
‘ach conclusions. By judicial admission of the parties there was neve!
y dispute that RADS was a medically recognized disease and that this
article by Dr. Brooks was authoritative and its conclusions were not
speculative. The only source for the court of appeals’ statements 1s an
micus brief filed by the Chamber of Commerce, which erroneously
stated that “their conclusions about RADS 1s only speculative and not
ibstantiated” by taking a sentence out of context and misstating it. D1
Brooks’ article concluded that RADS is a well-documented disease. Many
subsequent studies have confirmed Dr. Brooks’ findings and conclusions
Since the three clinical physicians who testified at trial were never asked
ibout the sentence raised by the amicus brief, its meaning was not
developed at trial. The majority became the “super-expert” and made
prohibited de novo findings of fact and based a significant part of its
pinion On erroneous statements. Moore had no opportunity to challenge
this misstatement by offering the subsequent studies on RADS that have
nfirmed Dr. Brooks’ work. Since at trial Ashland’s expert, Dr. Jone
mnfirmed Dr. Brooks’ work, there was no reason for Moore to do so i
thr
IStTICl court
\s the panel opinion held, Dr. Jenkins’ causation testimony was
mproperly excluded and that exclusion affected Moore’s substantial
hts. As the panel opinion held in remanding the case for a new tria
xclusion likely influenced the jury.
CONCLUSION
t
T 1¢)T T ric) i )
LOLdGIL SHUUIU
| ott |
WW Lil i |
UIS¢é } Ree (
REEN & BARTO?
ne\ )? Pe
APPENDIX
a,
_
Se Set! Gy ede CR ERM SER LOT OP oe
APPENDIX A EN BANC OPINION OF THE UNITEI
STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT DATED AUGUST 14, 1998
Bob T. MOORE; Susan Moors
Plaintiffs-Appellants
Cross-Appellees,
ND CHEMICAL IN¢
il Inc., Defendants-Appe
Cross-Appellant
rporat (
il Def
a‘
Appendix A
In this toxic tort case, we consider whether the district court
ised its discretion in excluding the opinion of a physician
the causal relationship between Plaintiff's exposure to
lustrial chemicals and his pulmonary illness. We find no
of discretion and affirm
Bow 1. Moore was employed as a delivery truck driver for
onsolidated Freightways, Inc. (“Consolidated”), a motor
freight company. On the morning of April 23, 1990, Moore
delivered several drums of chemicals manufactured by Dow
Corning Corp. (“Dow”) to Ashland Chemical Inc.’s (“Ashland”)
terminal in Houston. When Moore opened the back door of his
trailer, he smelled a chemical odor that caused him to suspect
that a drum was leaking. Moore and the Ashland plant manager,
Bart Graves, identified two leaking drums and removed them
from the trailer. Mr. Graves contacted Dow and requested
cleanup instructions and a copy of the material safety data sheet
(“MSDS”) for the spilled chemicals. The MSDS identified the
contents of the leaking drum and health hazards associated with
the contents.' The MSDS stated that the chemical solution
The MSDS provided, in part, as follows
A
Appendix A
ibsorbent material on the spilled chemicals, sweep them up,
ind dispose of them. The men were engaged in this cleanup for
forty-five minutes to an hour. After the cleanup, Moore returned
to the Consolidated terminal. At trial, he testified that about an
hour after finishing the cleanup, he began experiencing
symptoms, including dizziness, watery eyes, and difficulty in
breathing. However, Moore was able to drop off another
Consolidated trailer as requested by his supervisor
When he completed this delivery, Moore returned to
onsolidated’s terminal and told his supervisor that he was sick
[he supervisor sent Moore to the company doctor. The next
lay, Moore saw his family physician. After two to three weeks
treatment by the family physician, Moore placed himself
inder the care of a Dr. Simi, a pulmonary specialist. Dr. Simi
released Moore to return to work on the 1 1th day of June, 1990
\ fter working several days, Moore terminated his employment
due to difficulty breathing. On three occasions in the summer
of 1996, Moore also consulted Dr. Daniel E. Jenkins, a
pulmonary specialist. Dr. Jenkins diagnosed Moore’s condition
reactive airways dysfunction syndrome (“RADS”), an
isthmatic-type condition. In November of 1990, Moore
consulted another pulmonary specialist, Dr. B. Antonio Alvarez,
who became his primary treating physician. Dr. Alvarez
confirmed Dr. Jenkins’s diagnosis and treated Moore for RADS
Moore reported to his physicians that he had smoked
approximately a pack of cigarettes a day for approximately
twenty years, and he continued to smoke at the time of trial
He also reported that on April 23, 1990, when he was exposed
to the Dow chemical, he had just returned to work following a
bout with pneumonia. Moore also related a history of childhood
isthma to his treating physician
Moore and his wife filed suit against Ash
Ashland Oil, Inc
i
ilanagd Was neg
yn grounds tnat
ey
=e eI
ent in insisting that Moore expose himsel!
yy the chemical spill. More specificall
Moore complained that Ashland’s employee, Bart Graves
hould have permitted
, and others, primarily
y
—
|
{
vapors created
Moore to return to Consolidated
rminal where other employees could have cleaned up the spill
le also complained that Graves did not permit him to us¢
spirator during the cleanup. Ashland removed the
leral court on the basis of diversity jurisdiction
After extensive discovery and motion practice dealt
icularly with whether:
Moore’s expert physicians,
nkins and D1
D
Alvarez, would be permitted to testify, the c
yceeded to trial be
efore a jury. At the conclusion of the trial
jury answered the following interrogatory in t
> r= | ?
the negative
Ce
’o you find, from a preponderance of the evidence, that th
ligence, if any, of the person named below proximately
iused the injury 1n question
(b) Ashland Chemical, Inc
nd/or Ashland Oil, Inc.”
lhereafter, the district court entered
take nothing judgment against Moore. On appeal, a divided
inel of this Court concluded that the district court had er
refusing to allow Dr. Jenkins, one of Moore's experts, to
Ve
Yu. a
in opinion on the cause of Moore’s illness, and reversed
re
As
district court’s judgment and remanded the case for a new
ial. Moore v. Ashland Chem., Inc., 126
] 10) 77 Ulva = T
r.lyY/). We gre
‘3d 679 (Sth
inted rehearing to consider this case en ban
* es ae tomar - . h lA |
to clarify the standards district courts should apy
whether to admit expert testim:
t
}
H
j
nion on the cause Of MOOT
J 1 } i fom 1 ‘
DrOCCQUTal DaCKPTOUNnG is sSal tO Understand
crhi? ni { he tie
guments of the parties
Moore sought to call two medical! witnesses, Dr. Jenk
}
nd Dr. Antonio Alvarez. Dr. Jenkins, a well-qualified medica
pecialist, was certified by the American Board of Interna
Medicine in 1947. He also had special training and taught
the fields of pulmonary disease, allergy, and environmental!
medicine. Dr. Jenkins saw Moore on three occasions. He
examined Moore, performed a series of tests, and reviewed
Moore’s medical records. He concluded that Moore wa
suffering from RADS. Based upon his examination and tests
Dr. Jenkins expressed the opinion that Moore’s RADS had been
caused by Moore’s exposure to vapors from the chemical spill
at Ashland’s facility in April of 1990. We will discuss later in
more detail the reasons Dr. Jenkins assigned for his opinion
Generally, he relied upon the MSDS, which warned that
exposure to the Toluene solution could be harmful to the lungs,
his examination and test results, and the close, temporal!
connection between Moore’s exposure to the Toluene solution
and the onset of symptoms
Dr. Alvarez. who was a former student of Dr. Jenkins.
T
agreed with Dr. Jenkins about the cause of Moore’s RADS. Dr
2. The Defendants agree that Dr. Jenkins’s qualifications are
utstanding. He served residencies in internal medicine, tuberculosi
and chest disease and allergy, and was certified by the American Board
of Internal Medicine in 1947. After serving as Chief Resident in Medicine
ind Assistant Professor of Medicine and Physician in Charge of the
luberculosis and Chest Unit at the University of Michigan Medica
School from 1943 to 1947, he spent forty-four years on the faculty
ylor Medical School. In 1991, he went into practice in Hou
41iment
} . | 7 ‘
ry ‘9 ne lizvino in recniratar
[ ¥S1 da [ Clallz y | I I Lit
Y 2 ? Cc 7?
I i bv Dr. Jenki [) \ ;
theory of iusation with a report of a study on RADS
ored by Dr. Stuart Brooks that he found in a med
Zine.” One case study in the report involved erk v
exposed to a |oluene mixture in a small. enclosed 1
wo and one-half hours. Dr. Jenkins initially stated i1
os .. ,
t . t a) e - > rot) > . : ~ rt
sit10n that he Knew of no reported literature that suppo
‘ ts >) an ¢ ‘ . —"
ausation opinion. During his in limine testimony «
=, th, . ; . . t} y
iwvs nce ) tis jury al trial Dr lenkin T t I
ed to the Brooks study relied on by Dr. Alvar
| ] } f ‘
ir. Jenkins admitted that Moore v iT Ss]
} . ‘ | ] | } ’
. ' , , 5 ] 7
history of exposure to Toluene. He had nducte
7 | Yn sant | i } A . ta ? |
h on this subject. Dr. Jenkins had previously treated
*} S ~ ‘
Wwe » | own fT rTrita > he ‘ ru ‘ HH We *T he T é
were Known to irritate the airways. However, he conce
it the chemicals involved with these previous patients w
ronger and more irritating than the Toluene solution to whi
vloore was exposed. Dr. Jenkins made no attempt to explait
2% } . L. «= . . } ¢ } ~ F . ” . ee | C
Ww any oi the other chemicals that he believed caused RAD
3S |
;
earlier patients had propertie milar to the Dow 7
ition
T} trict art ft eo > >) ra | le " ’ jan it}
[he district court, after reviewing Dr. Jenkins’s deposit
1 listening to his in /imine testimony, decided to exclude
1usation opinion. [he court did permit Dr. Jenkins to testify
:bout his examination of Moore, the tests he conducted, a1
diagnosis he reached. The only feature of Dr. Je
4
—
—
=
stimony the court excluded was his opinion that the Tolue
\
yiution caused Moore’s RADS. The «
1; try T ( in? T
hi sh aw t . 4 :
Sa
Appendix A
that Dr. Jenkins had no scientific basis for ‘this a that it
was not sufficiently reliable under Fed.R.Evid. 702, and that't
would be inconsistent with the court’s uta role under
Daubert to admit this opinion.
he district court decided to admit Dr. Alvarez’s causation
opinion even though it was essentially identical to Dr. Jenkins’s
proffered opinion. The district court was apparently convinced
that Dr. Alvarez’s opinion linking the RADS to Moore’s
exposure to the Toluene solution was more reliable than Dr.
Jenkins’s opinion because Dr. Alvarez had been the treating
physician, and also because he had relied from the outset on
the Brooks study and therefore had some support from the
scientific literature for his conclusion. In view of the verdict,
the Defendants do not challenge the district court’s decision to
admit Dr. Alvarez’s opinion. Thus, the propriety of this ruling
is not presented to us for review.
he single defense expert, Dr. Robert Jones, was the third
medical witness to testify. Based upon his review of the medical
records. Dr. Jones concluded that Moore did not have RADS;
rather, according to Dr. Jones, Moore suffered from a form of
bronchial asthma. Dr. Jones further testified that the evidence
in the case was insufficient to allow him to conclude that
Moore’s exposure to Toluene caused his pulmonary problems.
Dr. Jones’s conclusion was reinforced by Moore’s medical
history, which included conditions that Dr. Jones thought were
much more likely triggering agents for RADS. These conditions
included Moore’s history as a heavy smoker for approximately
twenty years, his history of asthma, and his recent bout with
pneumonia. Dr. Jones also testified that the scientific literature
revealed that Toluene and similar substances have a low
cree that th . mr 1 Te T me non '
Be flat Ue person IS OVCTCOMC dalhGQ Dass’s
\A | } . 7 > >
With this background, we now turn to issue prese!
nne ] ‘ sath 7 +} > 7% try + et a ;
ippeal: whethner tne district COUTT € XK
‘
tes
* 7 7
€C SUT ( ;
ment ono th nit bout th tandc
ment amonv Le L rCUuUILLS adout Liit stanGarQG
‘Wing a district court’s admission or exclusion of exp
¥
timony. In General Electric Co. v. Joiner, 522 U.S
18 S.Ct. 512, 139 L.Ed.2d 508 (1997), the Court held that
yuld review such decisions for an abuse of discretior
LOT
luating whether the district court abused its discret
luding Dr. Jenkins’s testimony on causation, the Supren
yurt’s decisions in Daubert v. Merrell Dow Pharmaceuti
509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (195
foiner control our analysis
Daubert, the lower courts considered the admissib
xpert testimony on medical causation. [he expert witne
tht to testify that ingestion of Bendectin, a prescription an
nausea drug, by several mothers caused birth defects in thei
hildren. The lower courts excluded the evidence cn the bas
hat the experts’ methodology was not generally accepted
scientific community and had not been subjected to pe
-w. The Supreme Court, speaking through Just!
ckmun. first concluded that the “Frye doctrine,’
,
- ,
J ~
7 J
—« )
= « =
} \tert
j '
J
oe :
4 : f s = @) _
a. YU ° 7, = ) )
, . : <
he vs .
> - _—— /
}
t\dered fay) ihiiched e iemi
lgered four puodlisned epiacelMml
on which the protiered experts reiled to detern
they provided a sufficient basis for the experts opinio1
ourt observed that the authors of the first two studie
finding that the rate of cancer deaths among forme!
plants where workers were exposed to PCBs w
her than might have been expected, nevertheless conclude
‘ +} ¢ ‘ at} ry “AT ¢ . lia
there were apparently no grounds for associating lu!
| deaths (although increased above expectations) a1
re in the plant.” Joiner, 118 S.Ct. at 518 (citati
| 1). The Court concluded that given that the authors
i rticle were “unwilling to say that PCB exposure had cau
er among the workers they examined, their study did n
pport the experts’ conclusion that Joiner’s exposure to PCB
| ed his cancer.” Jd. at 518.° The Court next referred to th
! maining studies, one of which made no mention of P<
| e other in which the PCB-exposed group had also
| ted to additional potential carcinogens. The Ci
i rved that the district court was entitled to conclude
i
l tudies Ww Ke to the expert
if
il ,
: . T
7
t
i
iu }
; j '
|
i
'
aa.
i¢
, (
re was SIN
OSU
eH
we
q7F}
epidemiolo
linking
1
} $I2OK CVs ]
rola ec of drios j ’ 2 & x A in
PT CiaSSCUS Ul ULUEDS i. Al \ i
1 }
+4 ’ ‘
tests to determine the effects of dosa}
vel received by Mrs Zuchowicz, and the doctot
medical causation, based solely on clinical medica
was not confirmed by any hard science or str
factor evidence. See also Ambrosini v. | abarraqu
138 (D.C.Cir.1996)(stating that the fact th
the first of its type should not prevent a plainti!
[ iusation
( uit in be a
84 (4th C1 1995) upheld i€ Di
ore liver damage resulting from his use of Ext
th Tylenol contemporaneously with alcohol due to
turer’s negligent failure to warn. The Court of Appea
McNeil’s argument that the medical causatl
plaintiff's clinical physicians based on
dology of their discipline, such as the microsco]
er. the Tylenol found in his blood
eral days of using Tylenol and alcohol, the |
me blood level, and the lack of evidence of a viral or oth
. of liver failure, was unreliable because they did not ha
on epidemiological data. The Benedi court stated: “W
not declare [the clinical medicine] methodologies inval1
nreliable in light of the medical community’s daily use ¢
nethodologies in diagnosing patients.” /d.; see al
ind Casualty Co. v. Therm-O-Disc, Inc., 137 F.3d 780
(4th Cir.1998)(“[T]his circuit has taken the position tha
lauvert court “was not formulating a rigid test or checklist
‘ . . + > ] , \ > | : > ] > ] y
was ‘relving instead on the ability of federal judge
€ ibility (citing and quoting
38a
Appendix A
as the present one, in which the association between a specific
chemical compound and a particular disease has not yet been,
and perhaps never will be, subjected to hard science—
investigation, that the plaintiff will be unable to present any
expert testimony that his or her exposure to the chemical
compound was the probable medical cause of his or her disease
The en banc majority adopts a mechanistic interpretation
of the Deubert factors that threatens to require the exclusion
(Cont'd)
foregoing authorities, concluded that: (1) the basic principles of the
Federal Rules of Evidence recognized in Daubert apply to the admission
or exclusion of every type of expert testimony; (2) a trial judge, therefore.
must assess every proffer of expert testimony to determine whether it 1s
relevant to the case and a reliable application of the principles and
methodology of that expert’s discipline; (3) the Supreme Court in
Daubert interpreted “scientific knowledge” under Federal Rule of
Evidence 702, for purposes of that case, to mean knowledge obtained
and tested by the scientific method, i.e., “hard” scientific knowledge;
(4) accordingly, the Daubert court indicated that a trial court should
assess the reliability of expert testimony professedly based on “hard”
scientific knowledge using several factors, the “Daubert factors,” which
are “hard” science methods or techniques; (5) clinical medicine (as
opposed to research and laboratory medical science) is not, strictly
speaking, a “hard” scientific discipline; its goals, subject matter,
conditions of study, and well developed, sui generis methodology are
quite different from that of purely “hard” science and its methodology;
(6) Consequently, a trial judge assessing the reliability of the proffer of
a clinical physician’s expert testimony based on clinical medical
knowledge, without purporting to be based on hard scientific
methodology, should determine whether it is a sound application of the
knowledge, principles and methodology of clinical medicine; (7) In the
present case, the district court committed an error of law by rigidly
applying the “Daubert factors” and excluding the expert clinical
physician’s opinion because the doctor did not have any “hard” scientific
data to support his clinical medical opinion.
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40a
Appendix A
exposure and illness or compelling circumstances, the temporal
connection between exposure to chemicals and an onset of
symptoms is entitled to little weight in determining causation.
Maj. Op. at p. 278. This dictum conflicts with the great weight
of scientific and judicial authority.
In the sphere of hard science, the opinion of an expert who
opines that exposure to a compound caused a person’s disease
is “based on an assessment of the individual’s exposure,
including the amount, the temporal relationship between the
exposure and disease, and exposure to other disease-causing
factors.” Federal Judicial Center, REFERENCE MANUAL ON
Scientiric EvipENCE, p. 205 (1994)(emphasis added). The
temporal relationship may either support or contradict
causation. “In most acute injuries, there is a short time period
between cause and effect. However, in some situations, the
length of basic biological processes necessitates a longer period
of time between initial exposure and the onset of observable
disease.” Jd. at 207. Moreover, temporal relationship is one of
the seven factors that an epidemiologist considers in
determining whether the association between an agent and a
disease is causal. /d. at 161.
Courts and commentators have also recognized that the
fact that an individual’s symptoms followed an appropriate time
after exposure is an important consideration in determining
causation. E.g., Kannankeril v. Terminix Int’l., Inc., 128 F.3d
802. 805, 809 (3rd Cir.1997); Zuchowicz, 140 F.3d at 385
(affirming the admissibility of an expert whose “conclusion
was based on the temporal relationship between the overdose
and the start of disease and the differential etiology method of
excluding other possible causes.”); 1 Margie Searcy-Alford, A
Guipe to Toxic Torts § 10.03[2], p. 10- 69 (1998)(“The fact
XL A
( y
}
)
rite bali ) " }
rs 7}
‘ iy ow P
merotl DeCCI ind ( 1Ol UDDOI Ne |] 1} ¢
Tr . r r=) t1 T al EPYrTti T
Ull Lild MpoOrai Trelatio Snu1y | Cnt! YU LU I \
I I
ib nnelling cy imstar ly
t VilVe ) LU! Ipe blll}? CILTCUuTTIStan i d
t { ] }
T y Y Y | 1T) r r y TY
lt I CXDOSUT¢E OCCUTTCd 1] tne IPC! Pal Kl!
opping mall during a five minute period at a dist
et from the source of the jet fuel fumes. the chemical sub
sue; she did not seek medical assistance until nin
r for her symptoms that resulted in an initial diagno
onjunctivitis, or eye redness;” her experts did not ha
rough idea of the amount of her exposure; and thers
howing that the fumes the plaintiff inhaled fror
lefendant’s alleged negligent spillage were actually mo
nan the ordinary daily atmosphere in the shopping mall
fendant’s petroleum distribution, mixing and tra
rminal. Significantly, Cavallo’s experts did not h
terial safety data sheet (MSDS) or full knowledge o
the chemicals inhaled and, more important]:
bly use or apply the methodology of their ow
um, the Cavalli yurt ruled the exp
imissible because their opinions were based al!
' ;
lusively on a very tenuous temporal and spatial conn¢
i
; ; '
t+ > >% . " 7. ‘ . , 4 5 t >
tween exposure and symptoms and because they signifi
; , ; :
parted from the accepted tox logy method
BY GUY PVtvuu ct LAV UIVU y eae Wut
42a
Appendix A
defendant’s toxicology expert followed the generally accepted
methodology of that discipline. Id. at 763, 773. Moreover, the
Cavallo court never said that, in the absence of compelling
circumstances, a temporal relationship 1s “entitled to little
weight.” Instead, that court merely observed that there may be
instances where the temporal connection 1s so compelling as to
dispense with the need for toxicologists to rely on the standard
methodology of their discipline. /d. at 773.
(Cc)
As a coup de grace to inhalation injury claimants, the
majority indicates that, if a plaintiff's expert does not have
scientifically accurate measurements of the level of the
plaintiff's exposure, “his causation opinion [will be] suspect
even if he ha[s] scientific support for the position that the
[chemical compound] could cause (the plaintiffs disease].”
Maj. Op. at p. 278 n. 9. The majority downplays the lethal swath
of its new rule by suggesting that it applies here because of
“the paucity of the facts Dr. Jenkins had available about the
level of Mr. Moore’s exposure.” But the truth is that Dr. Jenkins
had better information about the nature of the substances, the
level of exposure, and its duration than experts in most
inhalation accident cases.° “Only rarely are humans exposed to
5. As explained by the panel opinion:
From Moore’s history that Dr. Jenkins had taken, he
had information that before the exposure Moore was in good
health, that two 400 pound drums of the chemicals had
begun leaking in the back of Moore’s truck at some time
before his arrival at Ashland, that Moore’s rig consisted of
a diesel tractor and a 28 foot enclosed trailer, that after the
(Cont'd)
In
* dri
into
drums
|
i
eaking
out
)
~
Ashland at
;
[he majority has conducted a trial de novo of the district
ourt’s preliminary assessment of whether the reasoning ond
methodology underlying Dr. Jenkins’ testimony was reliable,
‘ubstituting its own erroneous judgment and reasoning for thal
f the trial judge, rather than reviewing the district court's
rulings and reasoning for abuse of discretion, General Electri
Co. v. Joiner, U.S 118 S.Ct. 512, 517, 139 L.Ed.2d 508
(1997), clearly erroneous factual findings, Bourjaily v. United
States, 483 U.S. 171, 181, 107 S.Ct. 2775, 97 L.Ed.2d 144
(1987). and errors of law, Koon v. United States, 518 U.S. 81,
100. 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)(“A district court
by definition abuses its discretion when it makes an error of
di,
In the district court proceedings, the defendants objected
to the introduction of Dr. Jenkins’ opinion as to the diagnosis
and cause of Mr. Moore’s disease on the grounds that the docto1
lacked hard scientific support that the chemical compound
involved could cause reactive airways disease. The district court
admitted Dr. Jenkins’ opinion that Mr. Moore had reactive
airways disease but excluded Dr. Jenkins’ opinion that the
disease had been specifically caused by exposure to the
chemical compound involved because Dr. Jenkins had not
presented any hard scientific support for a general causal link
or association between that particular compound and that
particular disease.°
6. Dr. Jenkins performed a physical examination, took a detailed
medical history, observed Moore on three occasions, reviewed the MSDS
(Cont'd)
irt was “entitled to conclude” that (a) Dr. Jenkins ha
(plained in sufficient detail how his differential dia
tiology and his training and experience were helpf
iching his conclusion on causation; (b) the MSDS had lin
ilue in supporting Dr. Jenkins’ opinion because he di
now what tests Dow had conducted
1 *Y ring the AACT)
IT) pre Ddl LEER. LEE y yi
hat level of exposure was necessary for a
1 person to
injuries warned of in the MSDS; (c) Mr. Moore’s asthn
youth, history of smoking and recovery from pneun
hortly before his exposure made Dr. Jenkin pinio
lore unreliable; and (d) the “analytical gap” b
NKiIns S Causation opinion and the scientific know
available data advanced to support that opinion was 1
ind (2) Dr. Jenkins did not explain precisely how the i1
properties in the compound described by the MSDS ws
those in other chemicals or compounds th
|
s¢
tn reactive airways disease
Dr. Jenkins testified that he did t kr
id performed In preparing the MSD
L_ ont d)
epared by Dow Corning, and performed
ncluding pulmonary function tests, a bronchodilator t
‘st, a plethysmographic test, a lung volume determination, ar
as distribution test, a diffusion test, an arterial bloods test. a mec}
,
ct
X-rays, and laboratory tests. Dr. Jenkins reviewed the med
ords and reports of a bronchodilator test performed by Dr. Sim
three weeks after the accident that showed severe airwavs obst
<
\dditionally, Dr. Jenkins reviewed a report of an allergy test perforn
‘
by Dr. Alvarez, which ruled out allergic or immunologic disea
onfirmed RADS. Finally, Dr. Jenkins also relied upon the temp:
proximity between the exposure to the chemicals at the Ashlar
id the onset of symptor
und. The district court commented
fact but based its ruling on the lack of hard scientific support
the doctor’s clinical medical opinion, not on his lack of
knowledge of Dow’s testing. The MSDS was introduced without .
‘ection and referred to in testimony by the experts on both
ies. none of whom professed to have any know ledge of Dow
MSDS-related testing. The record clearly demonstrates that D1 .
nkins used the MSDS only for the same purpose as did the |
ther experts, merely as a source Oo! information as to the kinds |
hemicals in the compound to which Mr. Moore had been |
xposed. Thus, the district court evidently gave no weight to |
experts’ lack of knowledge of Dow’s testing, and if it did |
any relevance in this fact, it would have been clear |
neous in doing so. See Moore, 126 F.3d at 701 |
district court. moreover, did not base its decision on |
of the findings and reasons that the majority now |
ributes to it. Neither the defendant nor the district court found |
fault with Dr. Jenkins’ qualifications’, experience
The majority opinion fails to point out that Dr. Jenkin
t
fications were never an issue at any point In these proceedings ly
Dr. Jenkins was more than eminently qualified to render an opinion
this matter as a brief summary of his education, training and experience
eals. Dr. Jenkins received his medical degree from the University of
exas in 1940, received training at the University of Michigan Hospital
an intern. resident in Tuberculosis and Chest Disease and resident in
5. served as Instructor and Chief Resident in Medicine
llergy in 1940-4
1 Assistant of Medicine and Physician in charge of the Tuberculosis
nd Chest Unit, University of Michigan Medical School, 1943 to 1947
vas certified by the American Board of Internal Medicine in 1947, served
various Capacities as a professor at Baylor College of Medicine from
147-9] where from 1947-74 he was chief of the Pulmonary Disease
ection and from 1975-91 chief of environmental medicine. Additionally,
(Cont'd)
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— “ ) - ° 4 2. P > )
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- . ate ' . p—~ r
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— - - we »| ca ~ =
rn + " . - = » & 4
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" m nm - we a < )
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c : - - i = ; > = A -
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: ? . Gan : : - — > = =
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) 4
elsewhere that a defendant takes the pla
nds him. Coates v. Whittington, 758 S.W 2d 749
,
198s )(citing Driess \ Friederick, 73 Tex. 460, 11 S "
104 (1889)): Mondragon v. Austin, 954 S.W.2d 191 194
Ct.App.1997); see Maurer \ United States, 668 F.2d 98
100 (2nd Cir.1981)(“It is a settled principle of tort law that
hen a defendant’s wrongful act causes injury, he 1s fully liable
the resulting damage even though the injured plaintiff had
si
reexisting condition that made the consequences oO! the
neful act more severe than they would have been for
mal victim. The defendant takes the plaintiff as he find
). W. Page Keeton, et al., PRos AND K NON I
291-92 (Sth ed.1984)
|
lhe maiority’s most blatant ad
try
ling and rationale in an effort to bolster the district
t
LTC
rt’s ruling, however, 1s its erroneous claim that the district
Lt
\usation opinion and the scientific knowledge and available
‘ta advanced to support that opinion was too wide ” Maj. Op
9 The district court made no such finding. The tern
inalytical gap,” comes from the Supreme ourt’s Join
nion of 1997, see 118 S.Ct. at 519, and does not appeat!
district court’s 1995 ruling in the present case.” Moreovel
In General Electric Co. v. Joiner, U.S ite SAA. 3
9 L_Ed.2d 508 (1997), the Supreme Court held that abuse of discretiot
than the particularly stringent standard of review applied by
irt of appeals in that case, 1s the proper standard by which to review
’
,
‘trict court’s decision to admit or exclude scientific evidence. |
‘intiff Joiner proffered expert testimony based on hard science
th
thodology, animal and epidemiological studies, to prove that
ndants’ PCBs and related products had caused his lung cancer
experts used aw eight ot the ey idence methodo ogy to assess
urt found “that the ‘analytical gap’ between Dr. Jenkins's
'
:
:
linical medical expert,
e to seriously
'
»CS alleged
nounds. The ¢
mary
hi}
‘rs of law, the most serious Of W hich is its holding th
oundly me f
Dire Federa Rule yf | 1gen
es involving expert witness proliers ba
] } ] : . : lana
vond the realm of hard scienti! knowledge
rity en banc opinion 1s far too “rulefied’
contend that it does not set broad, eccent!
dents that will profoundly affect the trials and outcomé¢
umbers of future cases involving injuries an
-d to have been caused by exposure to chemical
n bane majority, in my opinion, makes several
‘
17 ]
whose opinion is based on a sound
pplication of the principles and methodology of his or het
liscipline, cannot re
between and indivic
iably testify as to the causal relationship
jual’s exposure to a chemical compound
nd his or her subsequent onset of symptoms and disease. As a
+
ul
verts the liberal
ry
}
it of this err
}
rin¢ iIpies ent
or of law and others, the en banc opinion
al thrust of the Federal Rules of Evidence and
unciated in Daubert by locking the gate
h th nrin ip] 7
ence derived through the princi]
iT)
PENDIA B EN BANC ORDER OF THE UNITED
ATES COURT OF APPEALS FOR THE FIFTH
IRCULT DATED AND FILED NOVEMBER 12, 199
52a
Aprendix B
Before KING, JOLLY, HIGGINBOTHAM, DAVIS, JONES,
SMITH, DUHE, WIENER, BARKSDALE, EMILIO
M. GARZA, DeMOSS, BENAVIDES, STEWART,
PARKER and DENNIS, Circuit Judges.*
BY THE COURT:
A majority of the judges in active service having
determined, on the court’s own motion, to rehear this case en
banc,
IT IS ORDERED that this cause shall be reheard by the
court en banc with oral argument on a date hereafter to be fixed.
The Clerk will specify a briefing schedule for the filing of
supplemental briefs.
* Chief Judge Politz is recused and did not participate in this
decision.
53a
APPENDIX C — PANEL OPINION OF THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT DATED OCTOBER 20, 1997
Bob T. MOORE and Susan Moore.
Plaintiffs-Appellants Cross-
Appellees,
v.
ASHLAND CHEMICAL, INC. and
Ashland Oil, Inc., Defendants-
Appellees Cross-Appellants.
No. 95-20492.
United States Court of Appeals,
Fifth Circuit.
Oct. 20, 1997.
* ca *
Before DAVIS and DENNIS, Circuit Judges, and
FALLON, District Judge':
DENNIS, Circuit Judge:
In this negligence case, we are called upon to determine
the standards for assessing the reliability of the proffer of a
clinical physician’s expert opinion as to the cause of a plaintiffs
disease in the light of Daubert v. Merrell Dow Pharmaceuticals,
|. District Judge of the Eastern District of Louisiana, sitting by
designation.
54a
Appendix C
Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
We conclude that: (1) the basic principles of the Federal Rules
of Evidence recognized by Daubert apply to the admission or
exclusion of every type of expert testimony; (2) a trial judge,
therefore, must assess every proffer of expert testimony to
determine whether it is relevant to the case and reliable under
the principles and methodology of the discipline involved, (3)
the Supreme Court in Daubert interpreted “scientific
knowledge” under Federal Rule of Evidence 702 to mean
knowledge obtained and tested by the scientific method, 1.e.
“hard” or “Newtonian” scientific knowledge; (4) accordingly,
the Daubert Court indicated that a trial court should assess the
reliability of expert testimony professedly based on “hard”
scientific knowledge using several factors, the “Daubert
factors,” which are “hard” science methods or techniques; (5)
clinical medicine (as opposed to research and laboratory
medical science) is not a hard science discipline; its goals,
subject matter, conditions of study and well developed
methodology are sui generis and quite different from that of
hard science and its methodology; (6) consequently, a trial judge
assessing the reliability of the proffer of a clinical physician's
expert testimony based on clinical medical knowledge should
determine whether it is soundly grounded in the knowledge,
principles and methodology of clinical medicine; the “Daubert
factors,” which are techniques derived from hard science
methodology, are, as a general rule, inappropriate for use in
making the reliability assessment of expert clinical medical
testimony.
The foregoing conclusions are the results of our
conscientious efforts to determine the standard for admitting
clinical medical testimony under the Federal Rules of Evidence
as interpreted by the Supreme Court in Daubert and by this
SSa
Appendix C
court in Watkins v. Telsmith, Inc., 121 F.3d 984 (Sth Cir. 1997)
and other authorities cited herein. They represent neither a “let
it all in” nor a “keep it all out” view. Instead, they reflect the
interplay of the basic principles of the Federal Rules of
Evidence, viz., the liberal Standards of admissibility and
relevance of Rules 401 and 402 and the assumption underlying
Rules 702 and 703 “that the €xpert’s opinion will have a reliable
basis in the knowledge and experience of his discipline.”
Daubert, 509 U.S. at 587. 592, 113 S.Ct. at 2793, 2796.
I. Introduction
Plaintiffs-appellants, Bob T. Moore and his wife, Susan
Moore, filed this suit against the defendants-appellees in Texas
state court, alleging that Moore had contracted reactive airways
disease as the result of the defendants-appellees’ negligence in
causing Moore to be exposed to a mixture of chemical gases
on their premises. Defendants-appellees removed the Suit to
federal court on diversity grounds.
Before trial the plaintiffs proffered the testimony of two
well credentialed clinical physician experts, Dr. Daniel Jenkins
and Dr. Antonio Alvarez, who expressed identical opinions
based on clinical medical methodology that Bob T. Moore
suffered from reactive airways disease that had been caused by
his inhalation of the mixture of chemical gases on defendants-
appellees’ premises. Dr. Jenkins based his opinion on his
firsthand observations in examining and taking a history from
Bob T. Moore, on the results of tests he performed or had
performed on Moore, and on facts and data he obtained from
other physicians who had previously examined, tested and
treated Moore. Dr. Alvarez essentially adopted the facts, data
and conclusions developed and compiled by Dr. Jenkins. To
56a
Appendix C
confirm his opinion before the proffer, Dr. Jenkins reviewed
and considered reports he received of Dr. Alvarez’s subsequent
treatment and allergy testing of Bob T. Moore. In response, the
defendants-appellees moved to exclude the testimony of Dr.
Jenkins and Dr. Alvarez on the grounds that the proffers failed
to demonstrate reliable bases for their opinions.
The trial court concluded that the proffer of Dr. Jenkins’
testimony demonstrated a reliable basis for his diagnosis of
Moore’s reactive airways disease. However, the court excluded
Dr. Jenkins’ opinion that Moore’s exposure to the chemicals
caused the disease on dual grounds, viz., (1) that under Federa!
Rule of Evidence 702 the opinion did not have a reliable basis,
and (2) that under Federal Rule of Evidence 403 the probative
value of the opinion was outweighed by the prejudice that would
be caused by Dr. Jenkins’ highly impressive qualifications. The
trial court admitted Dr. Alvarez’s opinions as to both diagnosis
and cause of disease as evidentiarily reliable, despite the fact
that Dr. Alvarez relied heavily on Dr. Jenkins’ opinion and
based his own opinion essentially on the same data that had
been developed and used by Dr. Jenkins.
At the jury trial, Dr. Jenkins’ testimony was limited to his
diagnosis of Moore’s disease and did not touch on causation.
Dr. Alvarez testified as to both the diagnosis and the cause of
the disease. Dr. Alvarez, however, was forced to admit that in
forming his opinions he relied heavily on the work and opinions
of Dr. Jenkins. Dr. Alvarez was unable to explain possible
discrepancies in the data he used that had been compiled by
Dr. Jenkins. Counsel for the defendants-appellees in closing
argument pointed out that Dr. Alvarez was not as highly
qualified as their medical causation expert who testified that
Moore’s disease had not been caused by exposure to the mixture
of chemicals.
S7a
Appendix C
The jury answered “No” to an interrogatory asking whether
the negligence, if any, of the defendants-appellees had
proximately caused the injury in question. The district court
entered a take nothing judgment against the plaintiffs. The
plaintiffs appealed, assigning as error the trial court’s ruling
that excluded Dr. Jenkins’ testimony as to his opinion or
inference that Moore’s disease had been caused by his exposure
to the chemicals he encountered at the defendant-appellees’
facility.
Il. Daubert’s Illumination and Impact
The trial court’s oral ruling excluded Dr. Jenkins’ opinion
as to cause of disease under Rules 702 and 403, apparently
based on the court’s understanding of the Rules as interpreted
and impacted by the Supreme Court’s decision in Daubert y.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct.
2786,125 L.Ed.2d 469 (1993). Therefore, before analyzing the
trial court’s interpretation and application of the law to the
Particular proffer of expert testimony, we will set forth our
reading of the essential elements of the pertinent Federal Rules
of Evidence that have been illumined and impacted by Daubert.
A. Rule 702
Rule 702 provides that: _ were
If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill,
experience, training, or education, may testify
thereto in the form of an opinion or otherwise.
SE
58a
Appendix C
In admitting expert testimony, Rule 702 requires that two
preliminary determinations be made by the trial court. First,
the proffered witness must be qualified as an expert by
knowledge, skill, experience, training, or education. Second,
the proffered expert’s opinion, inference or other testimony
must be based on scientific, technical or other specialized
knowledge that will assist the trier of fact to understand the
evidence or determine a fact in issue. To facilitate discussion,
we refer to these as the “qualifications” and “knowledge”
components of Rule 702.
1. Qualifications
An expert must have scientific, technical or other
specialized knowledge, and a witness may be qualified as an
expert by reason of knowledge, skill, experience, training or
education. Fed.R.Evid. 702; Christophersen v. Allied-Signal
Corp., 939 F.2d 1106, 1110 (Sth Cir.1991)(en banc). Rule 702,
according to the Advisory Committee Note, permits expert
testimony not only by experts carrying formal credentials such
as university degrees and professional memberships but also
by so-called skilled witnesses, whose experiences permit them
to testify with authority on a given topic. /d. The areas of inquiry
that expert testimony may address are similarly broad, including
scientific and technical questions as well as any other areas of
specialized knowledge. /d. The question of whether the witness
is sufficiently qualified as an expert is a matter to be decided
by the court pursuant to Rule 104(a). United States v. Normile,
587 F.2d 784 (Sth Cir.1978); Loftin & Woodard, Inc. v. United
States, 577 F.2d 1206 (Sth Cir.1978). In making this inquiry,
the trial court has wide discretion in determining the
qualifications of a witness as an expert with respect to a
particular subject. Hamling v. United States, 418 U.S. 87, 108,
59a
Appendix C
94S.Ct. 2887, 2902, 41 L.Ed.2d 590 (1974), reh'g denied, 419
U.S. 885,95 S Ct. 157,42 L.Ed.2d 129 ( 1974); Robert v. Conti
Carriers & Terminals, Inc. 692 F.2d 22 (Sth Cir. 1982).
In Daubert, the question of an expert's qualification under
Rule 702 was not raised. The court Stated that the experts were
well or impressively credentialed. Daubert, 509 U.S. at 582-
583,113 S.Ct. at 2791-92. Accordingly, Daubert does not affect
the foregoing principles pertaining to qualifications.
2. Knowledge
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S
579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme
Court was called upon to determine the standard for admitting
expert scientific testimony in a federal trial. Id. at 582, 113
S.Ct. at 2791. The court had granted certiorari in light of sharp
divisions among courts applying and rejecting the test of Frye
v. United States, 54 App.D.C. 46, 47, 293 F. 1013, 1014
(D.C.Cir.1923) that expert opinion based on a scientific
technique is inadmissible unless the technique is “generally
accepted” as reliable in the relevant scientific community.
Daubert, 509 U.S. at 585. 113 S.Ct. at 2792.
The court held that the Frye “general acceptance” test had
been displaced by the Federal Rules of Evidence, observing
that: Rule 702 specifically governing expert testimony does
not establish “general acceptance” as an absolute prerequisite
to admissibility; the drafting history of the rule does not indicate
an intention to incorporate such a standard; and a rigid “general
acceptance” standard would be at odds with the liberal thrust
of the Federal Rules and their general approach of relaxing the
traditional barriers to opinion testimony. /d. at 588-589, 113
S.Ct. at 2794-2795.
60a
Appendix C
Fhe Supreme Court also held that the Federal Rules require
the trial judge to ensure that any and all scientific testimony or
evidence admitted 1s not only relevant, but reliable. /d. at 589,
113 S.Ct. at 2794. Citing Rule 702 as the primary locus of this
obligation, the court decided that the trial judge, when faced
with a proffer of expert scientific testimony, must determine
pursuant to Rule 104(a) whether the expert is proposing to
testify to (1) scientific knowledge that (2) will assist the trier
of fact to understand or determine a fact in issue. The court
explained that this entails a preliminary assessment of whether
the underlying reasoning of the scientific testimony is soundly
grounded in scientific knowledge and methodology and can be
relevantly applied to the facts in issue. /d. at 592, 113 S.Ct. at
2796.
a. Hard Scientific Knowledge
Speaking specifically of “scientific knowledge,” the Court
stated that the adjective “ ‘scientific’ implies a grounding in
the methods and procedures of science.” /d. The Court
elaborated:
“ ‘Science is not an encyclopedic body of knowledge
about the universe. Instead, it represents a process
for proposing and refining theoretical explanations
about the world that are subject to further testing
and refinement... .’ But, in order to qualify as
‘scientific knowledge,’ an inference or assertion
must be derived by the scientific method. Proposed
testimony must be supported by appropriate
validation — 1.e., ‘good grounds,” based on what is
known. In short, the requirement that an expert’s
testimony pertain to ‘scientific knowledge’
6la
Appendix C
establishes a standard of evidentiary reliability.” Jd.
quoting from Brief for American Association for
the Advancement of Science et al. as Amici Curiae
7-8. (Parentheses omitted: emphasis in original).
'hus, the Daubert Court defined “scientific knowledge”
in terms of “hard science” or “Newtonian science” i.e..
knowledge obtained and tested through “the scientific method,”
of which Sir Issac Newton was the leading exponent. See
Edward J. Imwinkelried, The Next Step After Daubert,
Developing A Similarly Epistemological Approach To Ensuring
The Reliability of Nonscientific Expert Testimony, 15 Cardozo
L.Rev. 2271, 2276-2277 (1994)(citing 5 Tue EncycLopepIA OF
PHILOSOPHY 490-491 (Paul Edwards ed., 1967)); Jennifer Laser.
Comment, /nconsistent Gatekeeping in Federal Courts:
Application of Daubert vy. Merrell Dow Pharmaceuticals, Inc.
to Nonscientific Expert Testimony, 30 Loy. L.A.L.Rev. 1379,
1404 (1997): United States y. Hall, __ F.Supp. __, oe
(C.D.I11.1997); United States y. Starzecpyzel, 880 F.Supp. 1027,
1039 (S.D.N.Y.1995),
The methodology of hard or Newtonian science is what
distinguishes it from other fields of human inquiry. See Michael
D. Green, Expert Witnesses and Sufficiency of Evidence in Toxic
Substances Litigation: The Legacy of Agent Orange and
Bendectin Litigation, 86 Nw.U.L.REv. 643, 645 (1992).
“Scientific methodology today is based on generating
hypotheses and testing them to see if they can be
falsified. . . .Theoretically, therefore. hypotheses are not
affirmatively proved, only falsified. Of course, if a hypothesis
repeatedly withstands falsification, one may tend to accept it
even if conditionally true.” Jd. at 645-646 (citing Karl R.
Popper, The Logic of Scientific Discovery (1965): David L.
62a
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Faigman, 7o Have and Have Not: Assessing the Value of Social
Science to the Law as Science and Policy, 38 Emory L.J. 1005,
1015-17(1989); Interdisciplinary Panel on Carcinogenicity,
Criteria for Evidence of Chemical Carcinogenicity, 225 Sci.
682, 683 (1984)).
b. Knowledge Outside the Realm
of Hard Science
In Daubert the Supreme Court noted that, although Rule
702 also applies to “technical, or other specialized knowledge,”
its discussion was “limited to the scientific context because
that is the nature of the expertise offered here.” /d. at 590 n. 8,
113 S.Ct. at 2795 n. 8. Nevertheless, we conclude that, except
where it is self-evident that the court’s remarks specifically
apply only to “scientific knowledge,” that the general principles
of Rule 702 recognized by the decision are applicable to other
species of expert testimony. Moreover, in Watkins v. Telsmith,
121 F.3d 984, 991 (Sth Cir.1997), another panel of this court
recently concluded that “whether an expert’s testimony is based
on ‘scientific, technical or other specialized knowledge,’
Daubert and Rule 702 demand that the district court evaluate
the methods, analysis, and principles relied upon_in-reaching
the opinion.”
The Daubert court began by stating that “[wJe interpret
the legislatively-enacted Federal Rules of Evidence as we would
any statute.” Jd. at 587, 113 S.Ct. at 2793(citing Beech Aircraft
Corp. v. Rainey, 488 U.S. 153, 163, 109 S.Ct. 439, 446, 102
L.Ed.2d 445 (1988))(““Because the Federal Rules of Evidence
are a legislative enactment, courts turn to the ‘traditional tools
of statutory construction in order to construe their
provisions.’ ”) Accordingly, a court must not be guided by a
63a
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single sentence or member of a sentence, but look to the
provisions of the whole law, and to its object and policy. United
States Nat. Bank of Or. y. Independent Ins. Agents of America,
508 U.S. 439, 455, 113 S.Ct. 2173, 2182, 124 L.Ed.2d 402
(1993)(citing United States v. Heirs of Boisdore, 49 U.S. (8
How.) 113, 122, 12 L.Ed. 1009 (1849)). A Statutory text consists
of words living a communal existence, the meaning of each
word informing the others and al] taking their purport from
their context. /d. at 454, 113 S.Ct. at 2182 (citing NLRB y.
Federbush, Co., 121 F.2d 954, 957 (2nd Cir.1941)(L.Hand, J.)).
The maxim noscitur a sociis, that a word is known by the
company it keeps, is often used to avoid giving one word a
scope inconsistent with its companions and thus giving
~ ‘unintended breadth to the Acts of Congress.’ ” Gustafson vy.
Alloyd Co., 513 U.S. 561, 575. 115 S.Ct. 1061, 1069, 131
L.Ed.2d 1 (1995)(citing and quoting Jarecki v. G.D. Searle &
Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 1582, 6 L.Ed.2d 859
(1961)).
Consequently, the requirements that Daubert found to be
inherent in Rule 702, viz.. that the trial judge must ensure that
the expert's evidence is not only relevant, but reliable, must be
applicable to “technical, or other specialized knowledge,” as
well as to scientific testimony. Otherwise, Rule 702 would not
place limits on the admissibility of non-scientific expert
testimony comparable to those it imposes on purportedly
scientific evidence.
Moreover, the Daubert opinion at several points Clearly
implies that it is drawing on principles of the Federal Rules
that are generally applicable to all types of expert testimony.
The court stated that “Rule 702 ___ clearly contemplates some
degree of regulation of the subjects and theories about which
64a
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an expert may testify.” Daubert, 509 U.S. at 589, 113 S.Ct. at
2794. Further, the court observed that the premise for the
relaxation of the usual requirement of first-hand knowledge
when any type of qualified expert testifies is “an assumption
that the expert’s opinion will have a reliable basis in the
knowledge and experience of his discipline.” /d. at 592, 113
S.Ct. at 2796. Thus, Daubert plainly indicates that the trial
judge, when faced with the proffer of expert testimony in any
field of study, must determine whether the reasoning or
methodology underlying the testimony is valid under the
principles of the discipline involved. /d.; See American College
of Trial Lawyers, Standards And Procedures For Determining
The Admissibility Of Expert Evidence After Daubert, 157 F.R.D.
571, 578 (1994).
c. Reliability: The expert’s opinion or
inference must be grounded in the
methodology of his discipline.
The Daubert court read Rule 702 to provide that “ ‘[i]f
scientific technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a
fact in issue’” an expert “ ‘may testify thereto.’ ” Daubert,
509 U.S. at 589, 113 S.Ct. at 2794 (emphasis by Court deleted).
“Knowledge” in this context “ ‘applies to any body of known
facts or to any body of ideas inferred from such facts or accepted
as truths on good grounds.’ ” /d. at 590, 113 S.Ct. at
2795(quoting WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY
1252 (1986)).
In Daubert, the Court indicated that, (1) “scientific
knowledge” within Rule 702 means principles, theories,
techniques or inferences derived by the scientific method or by
65a
Appendix C
a body of sound scientific methods: and (2) that the proffered
expert's opinion, inference, or testimony based on scientific
knowledge, in order to have evidentiary reliability or
trustworthiness, must be derived or inferred by the same
methods. /d. at 590 n. 9,113 S.Ct. at 2795; See also the court’s
“general observations” on principal scientific methods. /d. at
593-594, 113 S.Ct. at 2796-2797.
By the same token, we conclude that, under Rule 702, an
opinion based on other technical or specialized knowledge, must
be grounded in the principles, methods and procedures of the
particular field of knowledge involved. Every discipline
employs a body of methods, rules, and postulates, i.e.,
methodology, both in its ordinary functions and in developing
and adopting new concepts, techniques, and analogues.
Therefore, the “knowledge” of each discipline, under Rule 702,
is both its principles and methodology and the theories,
techniques or inferences produced through its methodology.
Thus, the proffered opinion of any expert in a field of
knowledge, in order to be evidentiarily reliable, must either be
based soundly on the current knowledge, principles and
methodology of the expert’s discipline or be soundly inferred
or derived therefrom.
As the American College of Trial Lawyers’ report
concludes, “[W]hether the testimony concerns economic
principles, accounting standards, property valuation or other
non-scientific subjects, it should be evaluated by reference to
the ‘knowledge and experience’ of that particular field. To that
extent, Daubert ought to be regarded as universally applicable
to expert evidence.” American College of Trial Lawyers,
Standards and Procedures for Determining the Admissibility
of Expert Evidence after Daubert, 157 F.R.D. 571,579 (1994).
66a
Appendix C
For the same reasons, this court recently held in Watkins
v. Telsmith, Inc., 121 F.3d 984 (Sth Cir.1997) that the
application of Daubert in determining the admissibility of
expert testimony is not limited to “scientific knowledge” or
“novel” scientific evidence. /d. at 989-991. Moreover, in
Watkins, this court concluded that:
[Whether an expert’s testimony ts based on
“scientific, technical or other specialized
knowledge,” Daubert and Rule 702 demand that the
district court evaluate the methods, analysis, and
principles relied upon in reaching the opinion. The
court should ensure that the opinion comports with
applicable professional standards outside the
courtroom and that it “will have a reliable basis in
the knowledge and experience of [the] discipline.”
Id. at 991(quoting Daubert, 509 U.S. at 592, 113 S.Ct. at 2796.)
(also citing and quoting Cummins v. Lyle Indus., 93 F.3d 362,
366-371 (7th Cir.1996)(Rule 702 demands that experts “adhere
to the same standards of intellectual rigor that are demanded in
their professional work.” /d. at 369)(citing Rosen v. Ciba-Geigy
Corp., 78 F.3d 316, 318 (7th Cir.1996))); See also Tyus v. Urban
Search Management, 102 F.3d 256, 263 (7th Cir.1996)(“Social
science testimony . . . must be tested to be sure that the person
possesses genuine expertise in a field and that her court
testimony ‘adheres to the same standards of intellectual rigor
that are demanded in [her] professional work.’ "’)(quoting Braun
v. Lorillard Inc., 84 F.3d 230, 234 (7th Cir.1996)).
67a
Appendix C
d. Relevance: The opinion or inference
must be relevant to the case.
Rule 702 further requires that the evidence o1 testimony
“assist the trier of fact to understand the evidence or to
determine a fact in issue.” This condition goes primarily to
relevance. Daubert, 509 US. at 590, 113 S.Ct. at 2795
“ “Expert testimony which does not relate to any issue in the
case 1s not relevant and, ergo, non-helpful.’ 3 Weinstein &
BERGER 4 702[02], p. 702-18. See also United States v. Downing,
753 F.2d 1224, 1242 (3d Cir.1985)(‘An additional consideration
under Rule 702 — and another aspect of relevancy — is whether
expert testimony proffered in the case is sufficiently tied to the
facts of the case that it will aid the jury in resolving a factual
dispute’).” /d. at 591, 113 S.Ct. at 2795. “The study of the phases
of the moon, for example, may provide valid scientific
‘knowledge’ about whether a certain night was dark, and if
darkness is a fact in issue, the knowledge will assist the trier of
fact. However (absent creditable grounds supporting such a
link), evidence that the moon was full on a certain night will
not assist the trier of fact in determining whether an individual
Was unusually likely to have behaved irrationally on that night.”
ld
e. The trial judge is the gatekeeper
Accordingly, when faced with a proffer of a qualified
expert's testimony to scientific, technical or other specialized
knowledge, the trial judge must determine at the outset. pursuant
to Rule 104(a), whether the proffered opinion or inference is
soundly grounded in the methodology of the expert's discipline
and whether that opinion or inference js relevant to a fact in
issue or to an understanding of the evidence. C/ Daubert, 509
U.S. at 589-592, 113 S.Ct. at 2794-2796
68a
Appendix C
The Court emphasized that the trial judge’s inquiry under
Rule 702 is a flexible one. Different approaches may be
permissible, but the focus must be on the principles and
methodology upon which the expert’s opinion 1s based, not on
the merits of the expert’s conclusion. /d. at 594-595 n. 12, 113
S.Ct. at 2797-2798. “Vigorous cross-examination, presentation
of contrary evidence, and careful instruction on the burden of
proof are the traditional and appropriate means of attacking
shaky but admissible evidence.” /d. at 596, 113 S.Ct. at 2798
(citing Rock v. Arkansas, 483 U.S. 44, 61, 107 S.Ct. 2704, 2714,
97 L.Ed.2d 37 (1987)). “Additionally, in the event the trial court
concludes that the scintilla of evidence presented supporting a
position is insufficient to allow a reasonable juror to conclude
that the position more likely than not is true, the court remains
free to direct a judgment, Fed. Rule Civ. Proc. 50(a), and
likewise to grant summary judgment, Fed. Rule Civ. Proc. 56.”
Id. (citing cf, e.g., Turpin v. Merrell Dow deoshipeyesa ye
Inc., 959 F.2d 1349 (6th Cir.), cert. denied, 506 U.S. 826, 113
S.Ct. 84, 121 L.Ed.2d 47 (1992); Brock v. pen Dow
Pharmaceuticals, Inc., 874 F.2d 307 (Sth Cir. whe modified,
884 F.2d 166 (Sth Cir.1989), cert. denied, 494 U.S. 1046, 110
S.Ct. 1511, 108 L.Ed.2d 646 (1990)).
f. The Daubert “factors” are hard scientific methods that
generally are inappropriate for the reliability assessment of
clinical medical testimony.
After declaring that evidentiary reliability of an expert's
scientific opinion depends on whether it 1s soundly grounded
in the the scientific method, the Daubert Court identified several
individual methods or techniques within the body of hard or
Newtonian scientific methodology as appropriate for trial
judges’ use in testing the methodology-relatedness of particular
69a
Appendix C
hard scientific opinion proffers. Daubert, 509 U.S. at 593. 113
S-Ct. at 2796. These hard scientific methods, now sometimes
called “Daubert factors,” are empirical testing, peer review and
publication, known or potential rate of error, the existence and
maintenance of operational standards, and acceptance within a
relevant scientific community. /d. at 593-94. 113 S.Ct. at 2796-
2797
Because the objectives, functions. subject matter and
methodology of hard science vary significantly from those of
the discipline of clinical medicine, as distinguished from
research or laboratory medicine, the hard science techniques
or methods that became the “Daubert factors” generally are
not appropriate for assessing the evidentiary reliability of a
proffer of expert clinical medical testimony.
First, the goals of the disciplines of clinical medicine and
hard or Newtonian science are different. In hard science, the
usual motive is inquiring: to gain a new understanding of some
mechanism of nature. Alvan R. Feinstein. Clinical Judgment
22 (1967)[hereinafter Feinstein]. In contrast, the care and
treatment of the individual patient is the ultimate. specific act
that characterizes a clinical physician. /d. at 27: Pellegrino and
lhomasma, For The Patient's Good 7] (1988); Pellegrino and
Thomasma, A Philosophical Basis Of Medical Practice 120
(1981)(“[T]he whole process is ordained to a specific practical
end — a right action for a particular patient — and... this end
must modulate each step leading to it in important ways.”’)
Uhe clinical physician, therefore, must take account of the
immediacy of the problem confronting her for she bears a1
essential relationship to each patient. Additionally, she has
many human values to consider — ethics, compassion, and must
have a willingness to take responsibility in the face of the
70a
Appendix C
unknown. Edmond A. Murphy, 7he Logic of Medicine 6
(1976)[hereinafter Murphy]. The pursuit of these different goals
of hard science and clinical medicine serves to shape the distinct
objectives of the scientific experiment and the clinical treatment
of a patient:
In clinical treatment, the main motives are remedial,
or prophylactic: to change what nature has done or
to prevent what it may do. In laboratory work, the
premise 1s innovative: the goal is to test a
new hypothesis or a new procedure. In ordinary
clinical treatment, the premise 1s repetitive: the goal
is to reproduce (or surpass) the best results
of experiments conducted before in similar
circumstances. A clinician chooses treatment in a
new situation by reviewing what was done and what
happened in previous situations that resembled the
one at hand; he then selects whatever mode of
treatment had the most successful outcome in the
past. /d. at 22.
In ordinary clinical treatment, the purpose is not to gain new
knowledge but to repeat a success of the past. /d. at 23.
Second, the subject matter and conditions of study are
different. “In laboratory work, the experimental material is an
intact animal, a part of a person or of an animal, or an inanimate
system; in clinical treatment, the material is an intact human
being.” /d. at 22. The hard scientist initiates the experiment at
a time of his own convenience and chooses the material usually
without regard to its Gesire or consent for participation. /d. In
clinical medicine, the patient initiates the treatment, choosing
the time, place, duration, and clinician. /d. “The physician is
71a
Appendix C
not studying the properties of chemical] compounds in a test
tube; he cannot postpone dealing with cancer ina patient for
fifty years because he hopes by then to have a much clearer
insight into the nature of the disorder.” /d
Finally, clinical medicine and hard science have markedly
different methodologies. A clinician observes at least three
types of data for each patient who undergoes treatment: A
disease in morphologic, chemical. microbiologic, physiologic.
or other impersonal terms: the host in whom the disease occurs
and his environmental background, including his personal
properties (such as age, race, sex, and education) and external
Surroundings (such as geographic location, occupation, and
financial and social status) before the disease began; and the
illness that occurs in the interaction between the disease and
its environmental host, consisting of clinical phenomena: the
host's subjective sensations. or Symptoms,” and “signs,” which
are findings discerned objectively during the physical
examination. Feinstein, at 24-25.
Using these data, the clinician determines a present
diagnosis (which gives the disease a name and tells what is
wrong), a past etiology and pathogenesis (or how it got that
way), and a future prognosis and therapy (or what to do about
it). /d. at 25. Some of the data used by the clinician can often
be obtained by examining the patient’s fluids. cells. tissues,
~xcreta, roentgenograms, graphic tracings, and other derivativ e
substances. The patient's personal environmental data can often
be elicited by nurses, secretaries, social workers, or other
interviewers. But the history-taking, physical examination, and
the determination of symptoms and signs can properly be done
only by a doctor skilled in the clinica] procedures described
above. /d. “Moreover. the [clinical physician’s] capacity to
72a
Appendix C
make judgments in cases of a kind which he has never seen
before must depend ultimately on a cultivated capacity to see
equivalences between quite disparate things, that is, on
analogy.” Murphy, at 9.
In sum, hard or Newtonian scientific knowledge does not
comprehend all subjects that theoretically might be subjected
to its methodology. It is knowledge of a particular and limited
kind, gathered or tested by a particular and characteristic
method. T.H. Savory, The Language of Science (1953).
Although clinical medicine utilizes parts of some hard sciences,
clinical medicine and many of its subsidiary fields are not hard
sciences. The purposes, criteria, values and methods of hard or
Newtonian science and clinical medicine are far from identical.
Fred A. Mettler, The Medical Sourcebook xxxiv (1959).
Consequently, the Daubert factors, which are hard scientific
methods selected from the body of hard scientific knowledge
and methodology generally are not appropriate for use in
assessing the relevance and reliability of clinical medicai
testimony. Instead, the trial court as gatekeeper should
determine whether the doctor’s proposed testimony as a clinical
physician is soundly grounded in the principles and
methodology of his field of clinical medicine.’
2. The Daubert factors may be relevant and appropriate, however,
in assessing other types of expert evidence outside the realm of hard
science. For example, this court and others have recognized the utility
of testing as a factor for assessing the reliability of proffered expert
engineering testimony in alternative design cases. Watkins v. Telsmith,
Inc., 121 F.3d 984 (Sth Cir.1997); Cummins v. Lyle Industries, 93 F.3d
362 (7th Cir.1996); Peitzmeier v. Hennessy Industries, Inc., 97 F.3d 293
(8th Cir.1996). It is self evident, of course, that an engineer's proffered
conclusion as to a feasible alternative design lends itself to verification
by controlled testing or experimentation, whereas a medical patient
(Cont'd)
5a
Appendix C
B. Rule 703
Rule 703 provides that
The facts or data in the particular case upon
which an expert bases an opinion or inference may
be those perceived by or made known to the expert
at or before the hearing. If of a type reasonably relied
upon by experts in the particular field in forming
opinions or inferences upon the subject, the facts or
data need not be admissible in evidence.
Prior to Daubert, this court took the position that, before
admitting expert testimony, a trial court. as part of or in addition
to its preliminary inquiry under Rule 703. must apply the Frye
test, 1.€., the court must determine that the witness used a wv ell-
founded methodology or mode of reasoning sufficiently
established to have gained general acceptance in the particular
field in which it belongs. Christophersen v. Allied-Signal ( ‘orp.,
939 F.2d 1106, 1110, 1111, 1115 (Sth Cir.1991). In Daubert,
however, the Supreme Court held that the Frye “general
acceptance” test was displaced by the adoption of the Federal
Rules of Evidence. Daubert, 509 U.S. at 588-589, 113 S.Ct. at
2793-2794. The court stated that the “general acceptance” test
is at odds with the “liberal thrust” of the Federal Rules of
Evidence and their “general approach of relaxing the traditional
barriers to ‘opinion’ testimony,” and concluded that Frve is
Incompatible with the Federal Rules of Evidence [and] should
(Cont'd)
usually cannot practicably, ethically or humanely be subjected to
experimentation under conditions like those believed by a clinical
physician to have caused the patient's disease simply to verify the
doctor's proffered opinion
74a
Appendix C
not be applied in federal trials.” /d. Therefore, any requirement
that the trial court apply the Frye “general acceptance” test in
determining the admissibility of expert testimony under the
Federal Rules of Evidence is no longer tenable in light of the
Supreme Court’s decision in Daubert that the test should not
be applied in federal trials. Accordingly, we now read the
Federal Rules of Evidence, including Rule 703, without the
influence of a Frye-focal lens.
Under rule 703, a qualified expert may apply his relevant
and reliably grounded knowledge and expertise to facts and
data in the particular case in order to form and express a
pertinent opinion or inference. The facts or data may be derived
from (1) the first hand observation of facts, data, or opinions
perceived by the witness before trial, (2) the facts, data or
opinions presented at trial (as by the familiar hypothetical
question or by having the expert attend the trial and hear the
testimony establishing the facts, data, and opinions relied on),
or (3) facts, data or opinions presented to the expert outside of
court other than by his own direct perception. Fed.R.Evid. 703
advisory committee’s note. If they are of a type reasonably
relied upon by experts in the field, such facts, data or opinions
presented to the expert out of court need not be admitted or
even admissible in evidence. United States v. Harper, 802 F.2d
115, 121 (Sth Cir.1986). The rule is designed to bring the
judicial practice into line with the practice of experts themselves
when not in court. United States v. Williams, 447 F.2d 1285,
1290 (Sth Cir.1971), cert. denied, 405 U.S. 954, 92 S.Ct. 1168,
31 L.Ed.2d 231 (1972), reh'g denied, 405 U.S. 1048, 92 S.Ct.
1308, 31 L.Ed.2d 591 (1972). The Advisory Committee Note
accompanying Rule 703, in part, states:
Thus a physician in his own practice bases his
diagnosis on information from numerous sources
75a
Appendix C
and of considerable variety, including statements
by patients and relatives, reports and opinions from
nurses, technicians and other doctors. hospital
records, and X rays. Most of them are admissible in
evidence, but only with the expenditure of
substantial time in producing and examining various
authenticating witnesses. The physician makes life-
and-death decisions in reliance upon them. His
validation, expertly performed and subject to cross-
examination, ought to suffice for judicial purposes.
See also United States } Burrell, 505 F.2d 904 (Sth Cir 1974):
United States v. Will, ums, 447 2d. at 1290.
The question of whether facts. data or opinions not admitted
in evidence are of a type reasonably relied upon is a preliminary
one for the court. Bauman v. Centex Corp., 611 F.2d 1115 (Sth
Cir.1980); United States v. Lawson. 653 F.2d 299 (7th
Cir.1981), cert. denied, 454 U.S. 1150, 102 S.Ct. 1017, 71
L.Ed.2d 305 (1982); Michael H. Graham, HANDBOOK oF FEDERAL
EVIDENCE § 703.1 (4th Ed. 1996), Although only the terms “facts
or data” appear in Rule 703, an opinion not in evidence, even
if not admissible, may also form the basis of an expert’s opinion
if reasonably relied upon by experts in the particular field. See
Graham, at p. 109-110, n. 18 (citing the Advisory Committee
Note to Rule 703). In determining the preliminary question of
whether reliance by the expert is reasonable, the party calling
the witness must satisfy the court. both that such facts, data or
opinions are of the type customarily relied upon by experts in
the field and that such reliance is reasonable. See
Christophersen v. Allied-Signal, Corp., 939 F.2d 1106, 1113-
1114 (Sth Cir.1991) (en banc): Bryan v. John Bean Div of FMC
Corp. 566 F.2d 541, 544-47 (Sth Cir. 1978). But see Peteet y.
76a
Appendix C
Dow Chemical Co. 868 F.2d 1428, 1432 (Sth Cir.1989), cert.
denied, 493 U.S. 935, 110 S.Ct. 328, 107 L.Ed.2d 318 (1989)
(in making the 703 determination, “the trial court should defer
to the expert’s opinion of what data they find reasonably
reliable.”); See also, 3 Weinstein’s Evidence {| 703[03] at 703-
17(1981).
Daubert’s description of the trial judge’s duty as gatekeeper
under Rule 702 sheds light on her duty in this capacity under
Rule 703 and the relationship between these duties. The trial
judge’s duty under Rule 702 1s to determine whether the expert
is qualified; whether his proffered opinion is grounded in the
methodology of his discipline, 1.e., the body of principles,
methods, rules and postulates of his field of expertise; and
whether his opinion is relevant to the case. In Daubert, the
Supreme Court stated that a judge assessing a proffer must also
pay attention to Rule 703, which “provides that expert opinions
based on otherwise inadmissible hearsay are to be admitted
only if the facts or data are ‘of a type reasonably relied upon
by experts in the particular field in forming opinions or
inferences upon the subject.’ ” Daubert, 509 U.S. at 595, 113
S.Ct. at 2797. Accordingly, the trial judge as gatekeeper has a
duty under Rule 703 to determine whether such facts and data
not admitted in evidence are of the type customarily relied upon
by experts in the field and whether such reliance is reasonable.
Therefore, it may be inferred that the duties of a judicial
gatekeeper in assessing an expert opinion under Rules 702 and
703 are roughly similar to those of an appellate court in
reviewing the combined legal and factual decisions of a trial
judge. This is because the expert and the trial judge perform
similar functions in applying specialized knowledge to facts to
reach a conclusion or decision about an issue in a case.
Appendix C
Consequently, the appellate court and the gatekeeper also
perform similar functions in reviewing the work of the trial
court and the expert to determine whether their conclusions
are soundly grounded in the correct principles of knowledge
and are based on properly and reasonably found facts and data
C. Rule 403
Rule 403 provides that:
Although relevant, evidence may be excluded
if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations
of undue delay, waste of time, or needless
presentation of cumulative evidence.
The Supreme Court in Daubert admonished that a judge
performing her gatekeeping duties under Rule 702 should also
be mindful of other applicable rules, including Rule 403.
Daubert, 509 U.S. at 595, 113 S.Ct. at 2797. The court stated
that “Rule 403 permits the exclusion of relevant evidence ‘if
iis probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the
jury....’” Jd. The court quoted Judge Weinstein as explaining:
“ “Expert evidence can be both powerful and quite misleading
because of the difficulty in evaluating it. Because of this risk,
the judge in weighing possible prejudice against probative force
under Rule 403 of the present rules exercises more control over
experts than over lay witnesses.’ Weinstein, 138 F.R.D., at 632.’
509 U.S. at 595, 113 S.Ct. at 2797.
As Rule 403 favors the admissibility of relevant evidence.
such evidence is to be excluded only if its probative value is
78a
Appendix C
substantially outweighed by the danger of unfair prejudice.
United States v. Davis, 639 F.2d 239, 244 (Sth Cir.1981); See
22 Wright & Graham, FEDERAL PRACTICE AND PROCEDURE:
EviDENCE § 5221. Moreover, Rule 403 is an extraordinary
remedy to be used sparingly because it permits the trial court
to exclude otherwise relevant evidence. E.g., United States v.
Thevis, 665 F.2d 616, 633, (Sth Cir. Unit B), cert. denied, 456
U.S. 1008, 102 S.Ct. 2300, 73 L.Ed.2d 1303 (1982). There must
be a danger of unfair prejudice, not merely the danger of
prejudice inherent in any relevant evidence; and its probative
value must be substantially outweighed by that danger. As this
court stated in United States v. McRae, 593 F.2d 700, 707 (Sth
Cir.), cert denied, 444 U.S. 862, 100 S.Ct. 128, 62 L.Ed.2d 83
(1979):
Relevant evidence is inherently prejudicial; but it
is only unfair prejudice, substantially outweighing
probative values, which permits exclusion of
relevant matter under Rule 403. Unless trials are to
be conducted on scenarios, on unreal factors tailored
and sanitized for the occasion, the application of
Rule 403 must be cautious and sparing. Its major
function is limited to excluding matter of scant or
cumulative probative force, dragged in by the heels
for the sake of its prejudicial effect. As to such, Rule
403 is meant to relax the iron rule of relevance, to
permit the trial judge to preserve the fairness of the
proceedings by exclusion despite its relevance. It is
not designed to permit the court to “ ‘even out’ the
weight of the evidence, to mitigate a crime, or to
make a contest where there is little or none.”
(emphasis in original)
79a
Appendix C
“Virtually all evidence is prejudicial or it isn’t material.
The prejudice must be ‘unfair.’ ” Dollar y. Long Mfg. N.C.,
Inc., 561 F.2d 613, 618 (Sth Cir.1977), cert. denied, 435 U.S.
996, 98 S.Ct. 1648, 56 L.Ed.2d 85 (1978). The Advisory
Committee Note on Rule 403 provides that “(unfair prejudice
within this context means an undue tendency to suggest decision
on an improper basis, commonly, though not necessarily, an
emotional one.” For example, evidence may be unfairly
prejudicial because it appeals to the jury’s sympathies, arouses
its sense of horror, provokes its instinct to punish, triggers other
mainsprings of human action, or may Cause a jury to base its
decision on something other than the established propositions
of the case 3 WEINSTEIN & BERGER 403[03] 403-37 to 403-40
(citing authorities including United States vy. Bowers, 660 F.2d
527 (Sth Cir.1981); United States vy. Osum, 943 F.2d 1394, 1404
(Sth Cir.1991); United States vy. Kang, 934 F.2d 621, 628 (Sth
Cir.1991)). In addition, evidence may threaten “confusion of
the issues, or misleading the jury” when “the probability that
the proof and the answering evidence that it provokes may
create a side issue that will unduly distract the jury from the
main issues.” McCormick, McCormick ON EVIDENCI
§ 185(West 2d ed.1972): See Ford vy. Sharp, 758 F.2d 1018
(Sth Cir.1985).
III. Background Facts
On April 23, 1990, Bob T. Moore. a delivery truck driver
for Consolidated Freightways, Inc., a motor freight company,
delivered a shipment of solvents containing mixed chemicals
to Ashland Chemical, Inc. Bart Graves, Ashland’s plant
manager was on the loading dock when Moore arrived. When
the back door of the trailer opened, chemical gases were
escaping from two leaking drums. Graves notified Dow Corning
sUa
Appendix (¢
Corporation, the manufacturer and shipper of the chemical
solvents, of the spill and requested clean up instructions. At
Graves’ request, Dow Corning faxed him a copy of the Material
Safety Data Sheet (“MSDS”) regarding the spilled chemical
solvents. The MSDS notified Graves of the nature of the
chemical contents in the solvents and the health problems
associated with exposure to the chemical mixture’s vapors
lhe MSDS that Dow Corning faxed to Graves stated, in part
> 7. a o > =
yn II-HAZARDOUS INGREDIENT S DI
FR 1910.12
> . » ” =
rOLUENI
SOLVENT NAPHTHA PETROLEUM LIGH]
ALIPHATI(
ISOBUTYLISOBUTYRATI
PROPYLENE GLYCOL METHYL ETHER
Section LIIl-EFFECTS OF OVEREXPOSURI
ZA
Inhalation: Short vapor exposure may cause drowsiness and
irritate nose and throat. Vapors may injure blood, liver,
lungs, kidneys, and nervous system. Degree of effects
depends on concentration and length of exposure
Significantly. the MSDS stated that the solvents con
tain,
Ldall
rend of chemicals, including toluene, naphtha, and prop
yyvlent
ycol methyl ether. It warned that inhalation of their vapors
uld result In injury to the blood, liver. lungs, kidneys, and
vous system. To prevent such injuries. the MSDS cautioned
nat, in the event of a spill, respiratory protection equipme
uld be worn unless there is adequat te ventilation, or the |
til ic v¢
. . ‘4 ‘ ~ . 1 > al
Oontaminants was below a specified level]
4 ~ ] { 5
VlIOO I Onsisted o liesel tract i 26 1
| CU
+ | « ’ } .
1G C that he way ted to return t ( I lid
j
17 nd
in hk t th |
* *
» 7’
r ) ri
* *
ToT
pl
rsan
82a
Appendix C
Freightways and have other employees clean it out. Graves told
Moore, however, that the bill of lading would not be signed
until after the spill in the trailer was cleaned up. Moore
telephoned his supervisor who told Moore to comply with
Ashland’s demands regarding the spill clean up. Graves directed
Moore to clean up the trailer by placing absorbent material on
the chemicals, sweeping them up, and disposing of them in
“overpacks” to be placed in the leaking drums.
During the clean up, Moore informed Graves of his recent
recovery from pneumonia and requested the use of a respirator
to which Graves had access. Graves refused, despite his
knowledge of the lack of ventilation in the trailer. Graves also
failed to measure the amount of contaminants in the trailer,
although he had access to a meter provided by Ashland for this
purpose. The clean up job took between 45 minutes and an
hour. Within an hour or so after cleaning up the spill, Moore
began to suffer dizziness, watery eyes, and difficulty in
breathing.
When he returned to Consolidated Freightways, Moore
informed his supervisor that he was sick and he was sent to the
company doctor. The next day, Moore saw his family physician,
who treated him for two to three weeks. Moore then placed
himself under the care of Dr. Simi, a pulmonary specialist. Dr.
Simi prescribed medication for Moore and released him to work.
Moore returned to work during June 1990, but terminated his
employment a few weeks later because of his respiratory
difficulties.
On June 26, 1990 and subsequently, Moore was seen by
Dr. Daniel Jenkins, a pulmonary, environmental and internal
medicine specialist. After seeing Moore three times in June,
83a
Appendix C
July and August 1990, Dr. Jenkins diagnosed Moore’s condition
as reactive airways dysfunction syndrome (“RADS”). On
November 29, 1990, Moore was seen by Dr. Antonio Alvarez.
a pulmonary and internal medicine specialist, who became his
treating physician. Dr. Alvarez confirmed and adopied Dr
Jenkins’ diagnosis and treated Moore for his disease up to and
during the trial. By this time, Moore’s condition had
deteriorated, he was still unable to work, and he was forced to
Carry a container of oxygen at all times.
IV. Moore’s Proffers of Expert
Clinical Medical Testimony
The plaintiffs set out to prove that Moore’s personal injury
viz., his reactive airways disease, was proximately caused by
his exposure to the mixture of chemicals he encountered
Ashland’s premises. Moore’s case depended on expert
testimony that his disease was reactive airways disease and that
it had been caused by his exposure to the chemicals at Ashland
he plaintiffs proffered the opinions and inferences of D1
Daniel E. Jenkins and Dr. B. Antonio Alvarez based on theit
clinical medical knowledge ai,. “icts and data in this particular
case for these purposes.
A. Dr. Jenkins
Dr. Jenkins received his medical degree from the | niversity
of Texas in 1940. He received medical training at the University
of Michigan Hospital as an intern, resident in medicine. resident
1 Tuberculosis and Chest Disease, and resident in Allergy in
1940. 1945. The American Board of Internal Medicine certified
him in 1947. Between 1943 and 1947 he served as Instructor
and Chief P.esident in Medicine and as Assistant Professor of
84a
Appendix C
Medicine and Physician in charge of the Tuberculosis and Chest
Unit, University of Michigan Medical School. From 1947 to
1991 he served as Assistant Professor, Associate Professor, and
Professor of Medicine at Baylor College of Medicine, Houston,
Texas. From 1947 to 1974 he was Chief, Pulmonary Disease
Section, Baylor College of Medicine. From 1975 to 1991 he
was Chief, Environmental Medicine, Baylor College of
Medicine. In 1991, he went into practice with The Respiratory
Consultants of Houston, consisting mostly of a group of
physicians that he had trained. He is either Attending Physician
or Consultant in Medicine or Pulmonary Medicine at erght
Hospitals in Houston, Texas. Additionally, Dr. Jenkins is a
member of sixteen national, state and local medical
organizations and has served as president or chairman of a
section for three of them.
In formulating his opinion, Dr. Jenkins personally took a
detailed medical history from Moore, performed a thorough
physical examination, personally observed him three times,
performed or supervised a series of tests on Moore including
pulmonary function tests, a bronchial challenge test, a
bronchodilator test, a spirometry test, a plethysmographic test,
a lung volume determination, an intrapul gas distribution test,
a diffusion test, an arterial bloods test, a mechanics test, X-
rays, and laboratory tests, reviewed the medical records and
reports of Dr. Alvarez and Dr. Simi, including a report of the
bronchial dilator test by Dr. Simi two or three week
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