# Petition for Writ of Certiorari — Moore v. Ashland Chemical, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1016%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1999 - **Citation:** 526 U.S. 1064 ## Text 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! A) a> ’ ~ 4 2 ; - , i Coa _ ~ . > ond ~ a ‘. _ ~ ’ 3 ~ ~~ — — , _ — tS = : ~ v = — ~ - 2 ~~ — ‘om _ a - one f a ft ~ ~~ - . ~ — a a - | a 4 -_~ ze - r ~ mn ¢ ohne -~ - ai eat _ _— = ) Sans a — ~ = ~~ 2 ~ ‘ A ' a = ~ cr & > —s T — — co >) -~—— ca Ly ai _ ~ — ~ / Sf \ = -: Ly = ™~ Cc co ~ > } i ~ =— a — — - % Pd - t ~ - a , 4 toe ~ ~ <> ~ bens ~ - ~. - a “ a » w@ th > ~ ny me > > f ? okns al oo = Cc 2 - “4 Oo. ~ ~ a - A — — ~" _ U ~— . > ro f S r ~ 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> } ‘ . " idix D Judgment Of [he ted S 7 i yistric (Court For [he Southern District O | . — [) i)a \ } » | | % ‘ kk { } + } t T ' : 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 | { nt oan t) tions to tect 1] } Viit UUdILi ALi( n » ut y y . “ i y ' try ; nti ion ¢ ‘ +} 1 Cil um I] | ( = i \ an a eripantt t; i c n , ) | f } ADATTAG } t 1). \ 7" 4 4 \ DI el \ ‘ } j Ta i 1998 t t} ' tr \T fe \ ne Nal v¢ WUC i aes | y 7 t tr t > | } ) > ; ] j } 4 \ 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 | ‘ 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, = ) ) , . : - _—— / } 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 ] , \ > | : > ] > ] 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. — ) - i -~ } b . ) ) = a ) - Uv a=" 4 = of . SS ‘Bi J >% . " 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 c = Ss . _ ~ ‘ c o a - — +f " ‘ a a “ af ‘ - / * a - — ° prs “ ~ > > 3 ~ ) _ ~ - Uv . \ i , - . _— — ¢ — “ ) - ° 4 2. P > ) + Ys = ) ¢ ~ - . ate ' . p—~ r : ) b wl = A - ‘ ¢ 4 bad o- pd . ‘ ~ a ) “ - = > “ —_ ’ 4 5 - ~ i ~ = c + - — 2. : ? . Gan : : - — > = = . = . ; ~ _ > n . ~ a“ “ ) 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 Appendix C 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 Appendix C 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 Appendix C 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 u [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1016%3A1. Public record. Not legal advice.