Opposition Brief — Moore v. Ashland Chemical, Inc.

No. 98-992 . |

IN THE

Supreme Court of the United States

OcTOBER TERM, 1998

IER —

Bos T. MOORE AND SUSAN Moore,

Petitioners,

\SHLAND CHEMICAL, INC. AND ASHLAND OIL, INC..

Respondents

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

W. KYLE CARPENTER

WooLr, MCCLANE, BRIGHT,

ALLEN & CARPENTER, LLPC

900 Riverview Tower

» ew J

Knoxville, Tennessee 37901

(423) 215-1000

DeBorA B. ALSUP

Counsel of Record

BEVERLY RAY BURLINGAMI

WILLIAM L. BANOWSKY

THOMPSON & KNIGHT

A Professional Corporation

98 San Jacinto Boulevard

Suite 1200

Austin, Texas 78701-408 |

(S512) 469-6100

Attorneys for Respondents

be

Counsel! Press LLC

)) 359-6859

QUESTION PRESENTED

After conducting a Daubert analysis, a district court

excluded a clinical physician’s causation testimony, finding that

it lacked reliability and relevance. Applying Daubert and this

Court’s recent decision in General Electric Co. v. Joiner, the

Fifth Circuit found no abuse of discretion in the district court’s

ruling. Does the Fifth Circuit’s decision create an intercircuit

conflict or provide any other reason for granting certiorari?

il

STATEMENT PURSUANT TO RULE 29.6

Respondent Ashland Chemical, Inc. was merged into

Ashland Oil, Inc. in September 1993. The name of Respondent,

Ashland Oil, Inc., was changed in January 1995, to Ashland

Inc. The correct, current names of Respondents are therefore

Ashland Inc. and Ashland Chemical Company, a division of

Ashland Inc. Other nonwholly owned subsidiaries of Ashland

Inc. are:

APAC Holdings, Inc.

Arch Coal, Inc.

Marathon Ashland Petroleum LLC

lil

TABLE OF CONTENTS

Question Presented ........ tes Per Be

Statement Pursuant to Rule 29.6

Table of Contents .....

Table of Cited Authorities

Statement of the Case .......

ee 3)

B. Inaccuracies and Omissions in Petitioners’

Factual Statements ...............

Reasons for Denying the Writ ..............

A. The Fifth Circuit applied a Straightforward

abuse-of-discretion review to an evidentiary

ruling on the admissibility of medical causation

re es

B. Petitioners mischaracterize the analysis and

holding of the opinions below. .....

C. No intercircuit conflict arises from the Fifth

Circuit’s abuse-of-discretion review of a district

court’s exclusion of evidence under Daubert.

Contents

Page

1. Opinions in Which No Abuse of Discretion

Was Found in Admission of Causation

Testimony .......0-eeececseecceees 10

a. Zuchowicz v. United States, 140 F.3d

381 (2d Cir. 1998) ........--20s: 10

bh. McCullock v. H.B. Fuller Company, 61

F.3d 1038 (2d Cir. 1995) .......- 1]

c. Benediv. McNeil-P.P.C., Inc., 66 F.3d

1378 (4th Cir. 1995) .......-.. - 12

d. Clark v. Heidrick, 150 F.3d 912 (Sth

Cis SR eee eae eee eee 13

e. Hose v. Chicago Northwestern Transp.

Co., 70 F.3d 968 (8th Cir. 1995) ... 14

2. Opinions in Which an Abuse of Discretion

Was Found in Exclusion of Causation

PeRUORY | cc os a sae aes nee ees 16

a. Baker v. Dalkon Shield Claimants

Trust. 156 F.3d 248 (1st Cir. 1998)

eee Wer eT ek eee a 16

tb. In re Paoli R.R. Yard PCB Litig., 35

F.3d 717 (3d Car. 1994) . «35 ee can: 17

c. Ambrosini v. Labarraque, 101 F.3d

[20 GEL. Cit. TONG) ee ees 18

———————————————————

Contents

3. The Kumho Tire Issue of Nonscientific

PORE 55 eee ee

D. An alleged conflict with scholarly commentary

or proposed rule changes provides no basis for

granting certiorari. ..................

The Fifth Circuit correctly refused to apply

a less rigorous admissibility standard

merely because the causation expert was a

clinical physician. ..................

2 Che Fifth Circuit correctly refused to limit

Daubert’s applicability to cases involving

“Junk science” or to experts labeled “hired

GR ee hcp ve eee eee

The en banc Fifth Circuit properly applied an

abuse-of-discretion review to the trial court’s

evidentiary ruling. ......................

Conclusion

Page

19

U2

vi

TABLE OF CITED AUTHORITIES

Page

Cases:

Ambrosini v. Labarraque, 101 F.3d 129 (D.C. Cir.

OGY ccc acc ce bade eed + ot OS Ree Oe PERSO TORS 18, 19

American & Foreign Ins. Co. v. General Elec. Co., 45

F.3d 135 (6th Cir. 1995) ........ cece ee ences: 24

Baker v. Dalkon Shield Claimants Trust, 156 F.3d 248

(1st Cir. 1998) 20... ccc cece eee e cere enees 16, 17

Benedi v. McNeil-P.P.C., Inc., 66 F.3d 1378 (4th Cir.

1995) ccc cc cece cece ee eee e ewer esse eeess PK

Berry v. City of Detroit, 25 F.3d 1342 (6th Cir. 1994)

chew eanduee ns astacesvsnsed ners ereugees 20

Bradley v. Brown, 42 F.3d 434 (7th Cir. 1994)... 20

Carmichael v. Samyang Tire, Inc., 131 F.3d 1433 (i 1th

Cir. 1997), cert. granted sub nom. Kumho Tire Co.

vy. Carmichael, 118 S. Ct. 2339 (1998) ......--- 19, 20

Cavallo v. Star Enterprise, 100 F.3d 1150 (4th Cir.

1996) oo. ccc ccc cc eee eee eee eee ee eneee 20

Clark v. Heidrick, 150 F.3d 912 (8th Cir. 1998) ... 13,14

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579, 113 S. Ct. 2786 (1993) .. 6... ee ee eee passim

——————

Cited Authorities

Page

General Council of United Methodist Church vy.

Superior Court of California, 439 U.S. 1369, 99 S.

Mc CUR PEE 5a en ce oe ee eee 6

General Elec. Co. v. Joiner, 522 U.S. 136, 118 S. Ct.

oS Lf Ean tg inl ana Rice R Oat NC na ea ior | passim

Hose v. Chicago Northwestern Transp. Co., 70 F.3d

Fe Te GRP oo oc 14,15

lacobelli Constr., Inc. v. County of Monroe, 32 F.3d

a Le. | Pp ememmnranie Sees glee 4 All 20

In re Paoli R.R. Yard PCB Litig., 35 F.3d 717 (3d Cir.

ea) PE SE Pe SION PINS Tks ee 2 0 oe 17, 18

Lust v. Merrell Dow Pharmaceuticals. Inc., 89 F.3d 594

[ee Oe SUE cs cores ee ee 20, 24

McCullock v. H.B. Fuller Company, 61 F.3d 1038 (2d

Ge PE a sree estate Tr eae ri, ae

McKendall v. Crown Control Corp., 122 F.3d 803 (9th

i AEs, Cipla m tp OURS ae oe ee alah ae ety 20

O'Conner v. Commonwealth Edison Co.. 13 F.3d 1090

[Fer Ee. Ses ee Se eee 21,24

Porter v. Whitehall Laboratories, Inc., 9 F.3d 607 (7th

Ce Ee 50-066 1 SSS eee 21

vill

Cited Authorities

Page

Raynor vy. Merrell Pharmaceuticals Inc., 104 F.3d 1371

(DiC Cig: F997) ca ee tne te 20

Rosen vy. Ciba-Geigy Corp, 78 F.3d 316 (7th Cir. 1996)

Pe ee ee ee re eg et 24, 25

Sorensen v. Shaklee Corp., 31 F.3d 638 (8th Cir

i. | eee OPTC Te Pee re tee ea ae zi

Watkins v. Telsmith, Inc., 121 F.3d 984 (Sth Cir

bf oe er Perr errr Teer rer ccs ee 20

Zuchowicz v. United States, 140 F.3d 381 (2d Cir

| eee er ere vee rer eee ren ee 10, 11

Rules:

Ped. &. Bvad: Flee dc ce es ee 4, 7,21, 24, 25

Rad, BR. Evid. 703 (ook cca cee ern ke ee eae 24

Fifth Circuit Local Rule 41.3 .........------ eee 5

Other Authorities:

Daniel J. Capra, The Daubert Puzzle, 32 Ga. L. Rev.

699 (1998) belt Se We Rann aera dea wa ae ee

Alvan R. Feinstein, Clinical Judgment (1967) ..... 3

Michael H. Graham, The Daubert Dilemma: At Last a

Viable Solution?, 179 F.R.D. 1 (1998) ......... 23

l

STATEMENT OF THE CASE

A. Overview

The Plaintiffs in this case (here Petitioners) are the Moores, a

husband and wife, who claim that Mr. Moore developed reactive

airways dysfunction syndrome (“RADS”) as a result of a single

exposure to fumes from a product known as Release Coating, which

contained toluene and other solvents. Mr. Moore, a truck driver, was

delivering drums of Release Coating to a facility owned by

Respondent Ashland Chemical, Inc. The alleged exposure occurred

during a period of 45 minutes to an hour, as Mr. Moore and an Ashland

Chemical employee cleaned up a leak of the product from a drum in

the back of Mr. Moore’s truck.! Petitioners sued both Ashland

Chemical and Ashland Oil, Inc. (collectively “Ashland’’).

Although Petitioners blamed the Release Coating leak for Mr.

Moore’s respiratory problems, he had a long history of pulmonary

illness. As a child, he had suffered from asthma. And during the week

immediately before the delivery to Ashland, he had been ill with

pneumonia. For many years, he had smoked cigarettes heavily, and

he was still smoking at the time of trial.2 Faced with the question

whether Ashland’s negligence, if any, proximately caused his injury,

the jury answered “No.”

The only argument raised by Petitioners in this Court is that the

district court abused its discretion in excluding the causation testimony

of Dr. Daniel Jenkins, one of their two medical experts. The trial

judge allowed Dr. Jenkins to testify about his examination, testing,

and diagnosis of Mr. Moore, and to opine that Mr. Moore had RADS.

And Mr. Moore’s primary treating physician, Dr. Antonio Alvarez,

testified about diagnosis, treatment, and causation.

Before trial, the district court held a Daubert hearing, at which

Petitioners declined to present any live testimony.* Nevertheless,

during trial, the court allowed them another chance to meet the

Daubert requirements. In excluding the causation portion of Dr.

1. App. 3a-4a.

2. App. 4a, 21a.

3. App. Sa.

4. See App. 140a.

i

2

Jenkins’s testimony, the court noted that he had no scientific support,

no literature, and no research underlying his causation theory; further,

Dr. Jenkins knew of no other patient who had developed RADS from

exposure to toluene or other similar substances.* The court further

noted that Dr. Jenkins had an insufficient basis for his proffered

opinion testimony because he had no information about the “level of

exposure, amount of exposure, and duration of exposure.’”® As the

Fifth Circuit concluded, the trial court’s ruling was not an abuse of

discretion: “In sum, Dr. Jenkins could cite no scientific support for

his conclusion that exposure to any irritant at unknown levels triggers

this asthmatic-type condition.”

The en banc majority opinion, reprinted in Appendix A of the

petition, contains a thorough statement of the detailed facts and

evidence underlying the district court’s exclusion of Dr. Jenkins’s

Causation testimony. Respondents adopt this statement of the facts

by reference.

B. Inaccuracies and Omissions in Petitioners’ Factual

Statements

The following list points out the most significant misstatements

and omissions in the Petitioners’ representations of the pertinent facts:

1. Page 2: Contrary to Petitsoners-+mphcation that Mr. Moore

alone cleaned up the leak in the back of the trailer, at least one Ashland

employee worked with him on the cleanup.*®

2. Page 2: Contrary to the one-sided statement that Mr. Moore

developed RADS “during the one-hour exposure,” the experts

expressed different opinions about how and when he developed his

5. App. 14la. During the voir dire, on direct examination, Dr. Jenkins

admitted that he knew of no literature indicating that toluene causes RADS.

He acknowledged this again on cross-examination. Finally, on redirect

examination, the Moores’ attorney showed him a case report concerning

one patient who had developed RADS after exposure to toluene and other

substances for over two hours. App. 133an.4. The other substances and

the circumstances of exposure were markedly different from those involved

here. See id.

6. App. 142a.

7. App. 21a.

8. App. 3a-4a.

3

lung condition. The defense expert, Dr. Jones, testified that the

condition likely resulted from Mr. Moore’s preexisting asthma, his

recent bout of pneumonia, and his 20-year, ongoing smoking habit.?

3. Pages 2 and 3: Petitioners Suggest that the district court

excluded Dr. Jenkins’s causation testimony solely because there was

no “scientific literature establishing a causal link between exposure

to the toluene mixture and RADS.” Contrary to this statement, the

district court considered several other factors before excluding Dr.

Jenkins’s causation testimony, including: (1) his lack of knowledge

of any other patient whose lung condition was caused or aggravated

by exposure to toluene solution: and (2) his lack of knowledge of the

level of Mr. Moore’s exposure. !°

4. Page 2: Petitioners cite a footnote of the dissenting opinion

(en banc) for the proposition that Dr. Jenkins had “diagnosed the

cause” of over 100 patients’ exposure injuries. But the cited footnote

does not support this statement. Instead, it notes that Dr. Jenkins had

“examined and evaluated over 100 persons for injuries occurring from

exposure to various chemical compounds in an occupational setting.”

The phrase “diagnose the cause,” which is used several times

throughout the petition, improperly merges the concept of diagnosing

a condition with the very different concept of identifying its cause.

9. App. 8a-9a.

10. App. 140a-142a

ll. See App. 46a n.7

ae

4

REASONS FOR DENYING THE WRIT

A. The Fifth Circuit applied a straightforward abuse-of-discretion

review to an evidentiary ruling on the admissibility of medical

causation testimony.

Although issued by the Fifth Circuit en banc, the opinion below is

decidedly uncontroversial. Applying Joiner’s recent clarification of the

standards under Daubert and Rule 702, the Fifth Circuit found no abuse

of discretion in the district court’s exclusion of the medical causation

testimony of one of the Plaintiffs’ two physician-experts.'* As the en

banc court explained: “In evaluating whether the district court abused its

discretion in excluding Dr. Jenkins’s testimony on causation, the Supreme

Court’s decisions in Daubert and Joiner control our analysis.”'*

What was controversial was the earlier opinion of a sharply divided

panel. The two-member majority had reversed and remanded the

judgment entered on the jury verdict, holding that the district court had

abused its discretion in excluding the causation testmony of Dr. Jenkins.’*

According to the panel majority, the Daubert factors apply only to “hard

Newtonian” science, and not to clinical medicine.'* It based this

conclusion on two assumptions: (1) that the kind of reasoning physicians

use in diagnosing and treating patients is not scientific; and (2) that the

kind of speculative judgments sometimes necessary for diagnosis and

treatment can also be used to establish medical causation.'®

Judge Eugene Davis strongly dissented, noting: “I thoroughly

disagree” with the majority’s conclusion.'’ As Judge Davis explained,

all our post-Daubert cases, along with those of our sister

circuits, consistently recognize that the admission of a

physician’s testimony on medical causation is governed by

Daubert’s requirements, thus announcing in a voice that is

12. See App. 21a-22a. See generally General Elec. Co. v. Joiner, 522

U.S. 136, 118 S. Ct. 512 (1997); Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993); Fed. R. Evid. 702.

13. App. 9a (internal citations omitted).

14. See App. 97a, 100a, 109a.

15. See App. 54a, 69a.

16. See App. 54a, 69a-72a.

17. App. 121a.

?

loud and clear that such testimony is indeed ‘scientific’ expert

testimony.'®

Furthermore, as Judge Davis observed, one “need go no further than

Daubert itself to demonstrate the fallacy of [the panel majority’s]

conclusion.”'? Indeed, the Daubert Court had specifically considered

expert testimony on the alleged causal connection between exposure to

the drug Bendectin and birth defects.2° The subject of that testimony —

medical causation — “was obviously considered ‘scientific’ by the

Court.””!

For its “nonscience” view of medicine. the two-member panel

majority relied'on a book by Professor Alvan R. Feinstein.” But during

the en banc phase of the case, Dr. Feinstein filed an amicus brief making

clear that his book does not support the panel’s decision to apply different

standards to medical causation testimony offered by a clinical physician.”*

Almost immediately after the issuance of the panel opinion, the

Fifth Circuit granted en banc rehearing on its own motion and vacated

the panel opinion.” The reasons for rehearing were apparent. First, the

panel majority had announced a radically new standard — that the

Daubert factors do not apply to medical causation testimony of a clinical

physician.* Second, the panel majority had created a conflict, not only

with other circuit-court decisions, but also with Daubert itself.”

18. App. 126a.

19. App. 123a.

20. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. §79.

582-83, 113 S. Ct. 2786, 279] (1993).

21. App. 123a.

<2. See App. 69a-72a (citing Alvan R. Feinstein, Clinical Judgement

(1967)).

23. See Brief of Amicus Curiae Professor Alvan R. Feinstein in

Support of Neither Appellants nor Appellees, Cause No. 95-20492. Moon

v. Ashland Chemical, Inc., in the United States Court of Appeals for the

Fifth Circuit.

24. See App. 51-52a; Fifth Circuit Local Rule 41.3

25. See App. 68a-72a.

26. See App. 123a (Davis, J.. dissenting) (noting that the maiority

panel opinion conflicted with Daubert).

eee

6

By a 12-to-3 margin, the en banc Fifth Circuit reinstated the

judgment on the jury’s take-nothing verdict, finding no abuse of

discretion in the trial court’s exclusion of the causation portion of

one physician’s testimony.”’ In reaching this conclusion, the majority

of the en banc court considered and evaluated in detail the evidence

before the district court at the time it made its ruling. Applying

Daubert and the recently decided Joiner case, the en banc Fifth Circuit

appropriately conducted a straightforward abuse-of-discretion review

based on the specific facts of this case.** Such fact-based decisions

are not appropriate for certiorari consideration in the absence of

‘‘a marked departure by a lower court in the application of established

law.””°

B. Petitioners mischaracterize the analyses and holdings of

the opinions below.

The petition presents a distorted view of the analyses and holdings

of the Fifth Circuit panel and en banc opinions. Specifically,

Petitioners mischaracterize several statements in the majority en banc

opinion as broad holdings “as a matter of law” about the general

admissibility and relevance of certain types of evidence. Contrary to

these contentions, the Fifth Circuit’s en banc holding in this case is a

narrow one — it is limited to the decision that, based on the specific

evidence before the district court, the exclusion of Dr. Jenkins’s

causation testimony did not constitute an abuse of its discretion.

Similarly, Petitioners mischaracterize the earlier divided panel opinion

by failing to account for the applicable abuse-of-discretion standard

of review.

The list that follows points out the most significant misstatements

and omissions in the Petitioners’ representations about the analyses

and holdings of the opinions below. Many of these misstatements

27. See App. 21a-22a; see also App. la & 22a-23a (showing that ten

judges joined in the majority opinion, two judges concurred, and three

judges dissented).

28. See App. 9a, 17a-21la (citing Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993): General

Elec. Co. v. Joiner, 522 U.S. 136, 118 S. Ct. 512 (1997)).

29. General Council of United Methodist Church v. Superior Court

of California, 439 U.S. 1369, 1373-74, 99 S. Ct. 35, 38-39 (1978).

a

7

appear not only in the Petitioners’ argument, but also in their Statement

of Facts.

1. Page 3: Contrary to Petitioners’ statement. the majority en

banc court did not hold “that Dr. Jenkins’ causation testimony was

unreliable and not admissible under Daubert.” Instead, the court’s

holding is as follows: “Daubert and its progeny give the district court

discretion to ‘keep the gate’ for the purpose of admitting or excluding

opinion testimony. In this case, the district court did not abuse its

discretion in concluding that the causation evidence proffered by Dr.

Jenkins should be excluded.”

2. Page 4: Petitioners claim that the two-member panel majority

“followed the Second, Third, Fourth and other circuits” to hold that a

clinical physician may, consistently with Daubert, express a medical

causation opinion “without hard scientific corroboration.” But the

panel majority did not hold merely that a clinical physician “may”

express an opinion. Instead, it held that the district court “manifestly

erred, clearly erred, and abused its discretion” by excluding the

medical causation testimony of one of the plaintiffs’ two causation

experts.*' The panel majority reached this decision even though the

district court had based its ruling on a Daubert hearing, a fact-specific

analysis, and its conclusion under Rule 702 that the causation opinion

lacked a reliable foundation and was insufficiently tied to the facts of

this case.

3. Pages 5, 19, and 22: The en banc majority did not, as

Petitioners contend, hold “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.” Nor did it broadly hold, as Petitioners

claim, “that a clinical medical doctor cannot testify to the cause of a

patient’s inhalation injuries from an accidental exposure to industrial

chemicals without confirmatory scientific literature.” Instead, the en

banc court held that the district court did not abuse its discretion in

excluding the medical causation testimony of Dr. Jenkins when there

was: (1) no scientific support for his general causation theory that

exposure to a toluene solution at any level would cause RADS;

(2) no support for his specific causation theory because there was no

30. App. 22a.

31. App. 100a; see App. 109a.

a

8

accurate information about Mr. Moore’s level of exposure; and

(3) no comparison of the toluene solution to any other chemical to

which RADS had ever been scientifically linked.*

4. Pages 5 and 21: The en banc majority did not, as Petitioners

contend, hold “‘as a matter of law that an MSDS can provide no support

for a causation opinion” or hold anything else “as a matter of law”

about an MSDS generally. Instead, the opinion plainly limits its focus

to the specific Dow MSDS on which Dr. Jenkins purported to base

his causation opinion in this case:

The district court was entitled to find that the Dow

MSDS had limited value to Dr. Jenkins. First, Dr.

Jenkins admitted that he did not know what tests Dow

had conducted in generating the MSDS. Second, and

perhaps more importantly, Dr. Jenkins had no

information on the level of exposure necessary for a

person to sustain the injuries about which the MSDS

warned. The MSDS made it clear that the effects of

exposure to Toluene depended on the concentration and

length of exposure.*

5. Pages 5 and 21: The en banc majority did not, as Petitioners

assert, hold “as a matter of law ... that the temporal connection

between exposure and outset of symptoms is entitled to ‘little

weight’ ” or “has no significance.” Instead, the opinion explains that

in some circumstances, the temporal connection between exposure

and injury may be so compelling that there is no need for reliance on

standard toxicology methods.** For example, as the court noted, a

temporal connection may be sufficient if a plaintiff has been “doused

with jet fuel” or if there has been a mass exposure to a chemical by

many people, who in turn suffer similar symptoms.*° But absent such

circumstances, as the court added, a temporal connection, “standing

alone, is entitled to little weight in determining causation.”

32. See App. 20a-22a.

33. App. 19a (emphasis added).

34. See App. 19a

35. App. 19a.

36. App. 20a (emphasis added).

Y

6. Pages 11-12: The en banc majority did not, as Petitioners

contend, issue a “holding. . . that a clinical medical doctor’s testimony

based on ‘experience or training’ is not reliable unless it satisfies the

Daubert factors.” The footnote cited for such a “holding” actually

makes two points: (1) medical causation testimony — the type

involved in both Daubert and Joiner — involves a “scientific exercise”

and is subject to the Daubert admissibility standards, and (2) assuming

that some “hard science” distinction exists, the Daubert factors may

still apply, even if the expert testimony is based on experience or

training.*’

C. No intercircuit conflict arises from the Fifth Circuit’s

abuse-of-discretion review of a district court’s exclusion

of evidence under Daubert.

Petitioners argue that the en banc decision in this case conflicts

with at least nine different decisions from at least six other circuits.**

In most cases, the purported conflict lies in a single distinction —

that in the “conflicting” case, no abuse of discretion occurred in the

admission of certain testimony, while in the present case, no abuse of

discretion occurred in the exclusion of One doctor’s causation

testimony.

As this Court explained in Joiner, exactly the same broad abuse-

of-discretion standard applies to rulings allowing expert testimony

as to rulings disallowing it.* Thus, even if the expert testimony, the

underlying support, the methodology, and the “fit” were in some ways

similar in two different cases, one trial court might properly exercise

its discretion to admit the testimony, while the other might properly

exercise its discretion to exclude it. In turn, the two reviewing circuit

courts might both properly find no abuse of discretion in the lower-

court rulings, without creating the slightest intercircuit conflict.

The first section below addresses those purported “conflicting

opinions” in which the trial court’s rulings are upheld as a proper

exercise of discretion. The second section addresses the purported

37. App. 12a n.6.

38. See Pet. at 8-12.

39. General Elec. Co. y. Joiner, 522 U.S. 136, 118 S. Ct. Did, Sis

(1997).

)

10

conflicts in which a circuit court finds an abuse of discretion and

reverses a Daubert ruling. The Fifth Circuit’s en banc opinion creates

no meaningful conflict with any of them.

1. Opinions in Which No Abuse of Discretion Was Found in

Admission of Causation Testimony

a. Zuchowicz v. United States, 140 F.3d 381 (2d Cir. 1998)

In Zuchowicz, a woman was prescribed twice the recommended

dose of Danocrine, a drug used to treat endometriosis.” Shortly after

taking this overdose daily for a month, she developed primary

pulmonary hypertension (PPH), a rare disease often caused by certain

medications. While waiting for a lung transplant, she died. There

were no formal studies linking a Danocrine overdose to PPH.*!

The trial court admitted the testimony of the plaintiff's two

causation experts, and the Second Circuit affirmed under an abuse-

of-discretion standard. These two experts — the treating physician

and an expert in drug-induced pulmonary diseases — testified that

the Danocrine overdose had caused PPH based on the following facts

and reasoning, all of which starkly contrast with those in the present

case:

(1) Zuchowicz was a healthy, active young woman with

no history of cardiovascular problems.

(2) Zuchowicz first developed symptoms of PPH

shortly after the overdose.

(3) Based on Zuchowicz’s history, the doctor had ruled

out other possible causes of PPH, including all

previously known drug-related causes of PPH.

(4) The progression and timing of Zuchowicz’s disease

corresponded with other accepted cases of drug-

induced PPH.*”

The Second Circuit also affirmed the trial court’s admission of

the testimony of a pharmacology professor who had published articles

40. See Zuchowicz v. United States, 140 F.3d 381, 384 (2d Cir. 1998).

41. See id. at 385.

42. See id. at 385-86.

1]

on the effects of drugs on vascular tissues. He gave a step-by-step

scientific explanation of hormonal changes that led to PPH. This

reasoned analysis sharply differs from the conclusory, speculative

causation testimony of Dr. Jenkins.

Like the Fifth Circuit in the present case, the Second Circuit in

Zuchowicz applied the Daubert factors, among others, in assessing

the causation testimony of a clinical physician. Under an abuse-of-

discretion standard, both courts affirmed the trial courts’ evidentiary

rulings. These two opinions plainly create no intercircuit conflict.

b. McCullock vy. H.B. Fuller Company, 61 F.3d 1038

(2d Cir. 1995)

In McCullock, the plaintiff had worked for 16 years in a book

bindery, where she claimed she was exposed to harmful fumes from

an unventilated glue pot.“ The glue’s warning label called for a

ventilation system over the glue pot and warned of health or respiratory

problems associated with the glue fumes. During the four years in

which McCullock worked near the glue pot, she developed respiratory

problems.** The trial court admitted the testumony of a consulting

engineer, who testified that McCullock’s Station was within the zone

of exposure, and a medical doctor, who testified that chronic, repeated

inhalation of fumes from the hot-glue pot had caused McCullock’s

illness.*

As in Zuchowicz and Moore, the McCullock court recognized

that the admissibility of expert testimony “‘is left to the broad discretion

of the trial judge and will be overturned only when manifestly

erroneous.””*’ And the McCullock court likewise concluded that the

trial court’s flexible assessment should be guided by the listed Daubert

factors, among others.*® The McCullock court, like the Zuchowicz

43. See id. at 385.

44. See McCullock v. H.B. Fuller Company, 61 F.3d 1038, 1040 (2d

Cir. 1995).

45. See id. at 1041.

46. See id. at 1041-42

47. Id. at 1042.

48. See id.

and Moore courts, found no abuse of discretion in the admissibility

rulings.”

Given the limited analysis in McCullock, it is difficult to compare

the underlying basis of the medical expert’s testimony with the alleged

basis for Dr. Jenkins’s causation opinion. It is clear, nonetheless, that

the facts in McCullock are vastly different from those in Moore. For

example:

(1) McCullock suffered from a four-year daily

exposure to the fumes from an unventilated glue

pot.

(2) At least two written sources specifically warned

of the need for a ventilation system over the glue

pot.

(3) McCullock first experienced throat symptoms

during the four-year period of her prolonged

exposure.

Moreover, the fact that the McCullock court found no abuse of

discretion in the admission of the expert testimony does not mean

that the court would necessarily have found an abuse of discretion if

the same testimony had been excluded. Indeed, in an earlier appeal

of the same case, the Second Circuit found no abuse of discretion in

the trial court’s exclusion of a portion of the engineer’s testimony.”

c. Benedi v. McNeil-P.P.C., Inc., 66 F.3d 1378 (4th Cir. 1995)

In Benedi, the plaintiff, who consumed alcohol daity, had been

taking Tylenol (acetaminophen) for flu-like aches. He was admitted

to the hospital in a coma and near death from liver and kidney failure,

and ultimately required an emergency liver transplant.”!

Benedi sued the Tylenol manufacturer, and at trial, he presented

two liver disease specialists who cited “numerous treatises and articles

published in medical journals . . . that describe the increased risk of

liver injury when acetaminophen is combined with alcohol.’’** One

49. See id. at 1042-44.

50. See id. at 1041.

51. See Benedi v. McNeil-P.P.C., Inc., 66 F.3d 1378, 1381 (4th Cir.

1995).

52. Id. at 1382.

13

expert referred to “sixty reports that [the defendant] had received by

the end of 1992 documenting cases of liver injury associated with

combining therapeutic doses of Tylenol with alcohol.”®*

Thus, in Benedi — unlike in the present case — general causation

was amply supported in the medical literature. Moreover, after

examining Benedi’s damaged, removed liver, a pathologist, the

transplant surgeon, and several liver disease specialists concluded

that the liver injury was characteristic of acetaminophen toxicity.

As the experts also noted, acetaminophen was found in the plaintiff’s

blood upon his admission to the hospital, and he had a history of

Tylenol use with regular alcohol consumption. They found additional

support in his liver enzyme blood level and in the absence of evidence

of other causes of liver failure. Thus, both the factual basis and the

experts’ reasoning in Benedi contrast sharply with Dr. Jenkins’s

speculative opinion in the present case.

Most important for purposes of the present analysis, the Benedi

court recognized that the Daubert factors apply to the medical

causation testimony of expert physicians. The court further noted that

the Daubert analysis is a flexible one, premised on “the ability of

federal judges to properly determine admissibility.”** And like the

courts in the cases discussed above, the Benedi court concluded that

the trial court had “acted within its discretion” in allowing the expert

testimony.

d. Clark v. Heidrick, 150 F.3d 912 (8th Cir. 1998)

In Clark, the Eighth Circuit — noting the “clear abuse of

discretion” standard — affirmed both the admission of the defendants’

Causation testimony and the exclusion of the plaintiffs’ causation

testimony.’ The defense expert testified that he could not determine

with reasonable certainty what had caused an infant’s injury during

delivery. Thus, unlike Dr. Jenkins’s conclusory opinion on the alleged

cause of Mr. Moore’s respiratory injury, this expert merely admitted

53. Id.

54. See id.

SS. Id. at 1384.

56. Id. at 1385.

57. See Clark v. Heidrick, 150 F.3d 912, 914-15 (8th Cir. 1998).

a ee

14

that among several possible causes of the infant’s paralysis, he could

not identify the actual cause.

On rebuttal, the plaintiffs offered testimony that flexion was the

most likely cause.** The Eighth Circuit affirmed the exclusion of that

evidence, noting the trial court’s broad discretion to disallow rebuttal

testimony. Moreover, as the court observed, the evidentiary exclusion,

even if incorrect, constituted harmless error because the evidence

was cumulative.* In the same way, Dr. Jenkins’s causation testimony

was cumulative of the causation testimony of Dr. Alvarez. Indeed, on

the causation issue, the two doctors’ testimony was virtually

identical.

Clark provides little analysis of the underlying bases for the two

experts’ causation opinions. Without citing or discussing either

Daubert or Joiner, the opinion does little more than recognize the

broad discretion afforded a trial court te admit or exclude expert

testimony.

e. Hose v. Chicago Northwestern Transp. Co., 70 F.3d 968

(8th Cir. 1995)

In Hose, the Eighth Circuit affirmed the trial court’s exercise of

discretion in admitting the testimony of three physician experts.°'

Again, as in most of the cases discussed above, the court recognized

that this evidence was “scientific” testimony for which Daubert

provides the standard.® And again, the facts in Hose differ from those

in the present case.

The plaintiff had worked for the defendant as a welder for 15

years, during which he was exposed to “substantial amounts of fumes

and dust containing manganese, a toxin.”®’ Further, he had been

diagnosed with manganese encephalopathy, a dementia that “usually

results from chronic exposure to manganese, and is usually associated

58. See id. at 915.

59. See id.

60. See App. 137a.

61. See Hose v. Chicago Northwestern Transp. Co., 70 F.3d 968, 973-

74 (8th Cir. 1995).

62. See id. at 972.

63. Id.

15

with reduced ability to control one’s movements.” Thus, unlike

RADS, which had never been assoviated with a brief exposure to

toluene or any similar chemical, encephalopathy had been firmly

linked with chronic exposure to manganese.

Only one of the three experts actually testified that Hose’s chronic

exposure to manganese had caused him to develop manganese

encephalopathy. The doctor testified to this conclusion three times

without objection; defense counsel finally objected when the

testimony was elicited the fourth time. Assuming that the objection

was timely, the Eighth Circuit found no abuse of discretion in the

court’s decision to overrule it. The testimony was found to have a

sufficient factual basis because, in addition to patient history, the expert

had relied on:

(1) laboratory studies showing elevated levels of

manganese in Hose’s body and on his work clothes:

(2) clinical examinations of Hose showing physical

impairment;

(3) a series of MRIs suggesting the presence of

manganese in Hose’s brain; and

(4) reports from other doctors showing memory loss,

sensory loss, slow cognition, and other symptoms

of manganese encephalopathy.”

Given that chronic manganese exposure had been linked to

encephalopathy and that scientific tests had shown elevated

manganese levels in Hose, the conclusion was not speculative, as

was the causation conclusion of Dr. Jenkins.

64. Id.

65. See id. at 974.

66. See id.

en

2. Opinions in Which an Abuse of Discretion Was Found in

Exclusion of Causation Testimony

a. Baker v. Dalkon Shield Claimants Trust, 156 F.3d 248

(Ist Cir. 1998)

In Baker, the First Circuit found an abuse of discretion in the

trial court’s exclusion of an alternative causation theory.°’ In the early

1970s, the plaintiff had developed pelvic inflammatory disease (PID)

and later infertility, which her experts opined had resulted from her

use of a Dalkon Shield IUD. The trial court excluded the testimony

of the defendant’s two expert gynecologists, who proposed to testify

that the plaintiff's PID was more likely caused by chlamydia, a

sexually transmitted disease.®* The trial court concluded that there

was no basis for this theory.

While recognizing that a trial court has “broad discretion in

determining issues of admissibility of expert testimony and scientific

evidence,” the First Circuit found an abuse of discretion in excluding

the testimony because the alternative causation theory rested on the

following underlying bases:

(1) Scientific studies showed that the most common

causes of PID are gonorrhea and chlamydia.

(2) The plaintiff’s PID was not of the acute type caused

by gonorrhea, and there was no evidence of

gonorrhea.

(3) Tests from the early 1970s revealed that the plaintiff

| had trichomonas, a sexually transmitted disease,

and the presence of one such disease tends to be

correlated with the presence of others.

(4) Two 1996 chlamydia titer tests on the plaintiff’s

blood revealed the presence of chlamydia

antibodies, indicating an earlier chlamydia

exposure or infection.

67. See Baker v. Dalkon Shield Claimants Trust, 156 F.3d 248, 25]

(1st Cir. 1998).

68. See id.

69. See id.

17

(5) The plaintiff’s PID symptoms did not correspond

to those that IUDs could cause.”°

As the First Circuit explained, there was no dispute about the

general causation theory — that chlamydia is a common cause of

PID. Moreover, there was no dispute that the medical community

considered titer tests reliable evidence of prior chlamydia infection.

Thus, there was no basis for excluding the alternative causation theory

as lacking in reliability or relevance. Unlike Dr. Jenkins, the defense

experts in Baker undertook a logical, step-by-step exclusion of the

other possible causes of the plaintiff’s disease. They explained why

the condition was more likely caused by chlamydia, to which the

plaintiff had definitely been exposed.

b. In re Paoli R.R. Yard PCB Litig., 35 F.3d 717 (3d Cir. 1994)

Paolt is a consolidated case involving multiple claims of 38 people

who had developed cancer and other illnesses after living for many

years near a railroad yard at which polychlorinated biphenyls (PCBs)

had been used for decades.”! This lengthy, fact-intensive opinion is

one of the most comprehensive applications of Daubert.

Unfortunately, because the Third Circuit did not have the benefit of

this Court’s later Joiner opinion, it incorrectly applied a heightened

standard of review, which was later explicitly rejected in Joiner.

Like the Eleventh Circuit in Joiner, the Third Circuit reasoned

that since a trial court’s preliminary ruling could foreclose the case’s

submission to a jury, a circuit court should take a “hard look” at the

trial court’s exclusion of evidence, applying a “more stringent review”

of the district court’s exercise of discretion.”? Because the Third Circuit

applied an incorrect standard of review throughout this decision, there

is no reason to address any perceived conflict created by later cases

that apply the proper abuse-of-discretion standard approved by this

Court in Joiner.

Moreover, even if the Paoli court had applied the proper standard,

the opinion does not support the Petitioners’ argument in this case.

Contrary to their assessment, Paoli does not stand for the general

70. See id. at 252.

71. See In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 735 (3d Cir.

1994).

72. Id. at 749-50.

18

proposition that experience and differential diagnosis are always

sufficient to support a clinical physician’s causation testimony,

regardless of other factors. In Paoli, after the defendants moved for

summary judgment, the trial court conducted five days of in limine

hearings and excluded as unreliable most of the plaintiffs’ expert

testimony. The trial court then granted summary judgment for the

defendants on all claims. As the Third Circuit explained: “For the

most part we will affirm the rulings and the judgment of the district

court.”’* And to the extent that other rulings were overruled, the Third

Circuit’s holding was based on the now-rejected heightened scrutiny

standard.

c. Ambrosini v. Labarraque, 101 F.3d 129 (D.C. Cir. 1996)

In Ambrosini, the parents of a child born with severe birth defects

sued the manufacturer of Depo-Provera, a drug that the mother had

used during pregnancy.”* The trial court excluded the testimony of

the plaintiffs’ experts an epidemiologist to testify on general

causation and a teratologist (an expert on congenital malformations )

to testify on specific causation.”

Although a divided panel of the D.C. Circuit found an abuse of

discretion in these exclusions, it did not have the benefit of this Court's

later Joiner opinion. Thus, like the Eleventh Circuit in Joiner and the

Third Circuit in Paoli, the D.C. Circuit distinguished between

reviewing the admission of scientific evidence and reviewing the

exclusion of such evidence. As in a few other pre-Joiner decisions,

the panel reasoned that since a trial court’s preliminary ruling could

foreclose a jury trial, its reasons for excluding scientific testimony

“must be strong.’’”°

This view directly conflicts with this Court’s guidance in Joiner,

which requires circuit courts to apply exactly the same broad abuse-

of-discretion standard to rulings admitting expert testimony as to those

excluding it.’”’ Because the Ambrosini panel applied a more stringent

73. Id. at 733.

See Ambrosini v. Labarraque, 101 F.3d 129, 131 (D.C. Cir. 1996).

75. See id. at 131-32.

76. Id. at 132.

77. See Joiner, 118 S. Ct. at 517.

19

review to the exclusion of the expert testimony, the case does not

create an intercircuit conflict with later cases applying the proper

standard.

Moreover, even if the Ambrosini two-member majority had

applied the proper standard, the Opinion does not support the

Petitioners’ overbroad interpretation of it. Contrary to their argument,

Ambrosini does not stand for the proposition that “technical expertise

and clinical experience and methodology” are always sufficient to

support medical causation testimony, regardless of other factors.”

For example, the Ambrosini epidemiologist — unlike Dr. Jenkins

— explained “how he arrived at his opinion that a positive causal

connection exists between Depo-Provera and the type of birth defects

suffered by [the child].””? Similarly, the teratologist — unlike Dr.

Jenkins — “specifically identified the animal. pharmacological, and

human studies that he relied on ic reach the opinion that Depo-Provera

caused [the] birth defects.””®° As the majority explained: “While some

studies suggest no causal relationship between Depo-Provera and the

types of birth defects suffered [here], others Suggest a positive one.”

No such studies existed in the present case.

In addition, the Ambrosini majority concluded that other indicia

of reliability supported tne usation testimony. For example, at the

FDA's request, one of the experts had “testified to his opinion of

general causation in a public hearing, without any connection to the

Ambrosinis’ litigation,” thus reducing concern that he was “simply

‘a gun for hire.’ ’*? And in testifying in the case, this expert had

specifically explained how he had ruled out all the other possible

causes for the birth defects.

3. The Kumho Tire Issue of Nonscientific Testimony

Petitioners also discuss the Eleventh Circuit’s Opinion in

Carmichael, now Kumho Tire, in which this Court has granted

certiorari and heard oral argument. But Kumho Tire does not deal

78. See Pet. at 11.

79. Ambrosini, 101 F.3d at 136.

80. Jd. at 137.

81. Jd. at 138.

82. Id. at 139.

20

with medical causation testimony.** Instead, it deals with the legitimate

split in the circuits over whether Daubert applies to nonscientific

testimony.™

The Moores try to portray their case as a part of that conflict,

arguing that, like the purported tire expert's testimony in Kumho Tire,

Dr. Jenkins’s testimony “is not based on hard science” and thus, “the

Daubert factors do not apply.”®* But that argument overlooks the fact

that both Daubert and Joiner dealt specifically with medical causation

testimony. And contrary to Petitioners’ argument, applying the

Daubert factors to medical causation testimony — no matter what

type of expert proposes to testify — comports with the overwhelming

weight of authority from other circuits.*° Thus, no matter how this

83. See Carmichael v. Samyang Tire, Inc., 131 F.3d 1433 (11th Cir.

1997), cert. granted sub nom. Kumho Tire Co. v. Carmichael, 118 S. Ct.

2339 (1998).

84. For cases applying Daubert to nonscientific testimony, see, e.g.,

Watkins v. Telsmith, Inc., 121 F.3d 984, 989 (Sth Cir. 1997) (applying

Daubert to expert testimony, based on training and experience, concerning

design of a conveyor); Berry v. City of Detroit, 25 F.3d 1342, 1348, 1350-

51 (6th Cir. 1994) (applying Daubert to “nonscientific testimony” that a

police department’s alleged failure to discipline officers had proximately

caused a shooting). For cases refusing to apply Daubert to nonscientific

testimony, see, e.g., lacobelli Constr., Inc. v. County of Monroe, 32 F.3d

19, 25 (2d Cir. 1994) (refusing to apply Daubert to “nonscientific

testimony” in construction-contract case); McKendall v. Crown Control

Corp., 122 F.3d 803, 806-807 (9th Cir. 1997) (refusing to appiy Daubert

to mechanical engineer’s “nonscientific testimony” concerning a forklift

accident).

85. Pet. at 12.

86. In addition to the cases discussed in the text, see Raynor v. Merrell

Pharmaceuticals Inc., 104 F.3d 1371, 1374-76 (D.C. Cir. 1997) (excluding

expert testimony on the cause of birth defects); Cavallo v. Star Enterprise,

100 F.3d 1150, 1158-59 (4th Cir. 1996) (affirming exclusion of medical

doctor’s and toxicologists’ opinions that aviation fuel vapors caused

illness); Lust v. Merrell Dow Pharmaceuticals, Inc., 89 F.3d 594, 596-98

(9th Cir. 1996) (affirming exclusion of medical doctors’ testimony in birth

defects case); Bradley v. Brown, 42 F.3d 434, 436-38 (7th Cir. 1994)

(affirming exclusion of doctors’ multiple-chemical-sensitivity causation

(Cont'd)

Court decides the question whether Daubert applies to nonscientific

testimony, that decision should have no impact in the present case

because medical causation testimony is plainly “scientific.”

D. Analleged conflict with scholarly commentary or proposed

rule changes provides no basis for granting certiorari.

Petitioners further argue that the en banc decision in this case

conflicts with “scholarly commentary and the proposed amendment

to Rule 702.”*’ Petitioners fail to su ggest how any such alleged conflict

could possibly provide a basis for granting certiorari. Instead, this

section of the petition consists of little more than a series of block

quotations from various secondary sources, with no explanation of

how the quotations supposedly conflict with the Fifth Circuit’s en

banc opinion.

In this section of their brief, Petitioners rely heavily on the work

of two scholars: Professor Daniel J. Capra and Professor Michael H.

Graham. As they note, Professor Capra “is the Reporter for the

Advisory Committee on Evidence Rules for the Judicial Conference’s

Proposed Amendment to Rule 702.’88 But Petitioners apparently

overlook a recent law review article by Professor Capra, in which he

expressly rejects the now-vacated panel opinion that the Moores

contend was correct.*?

Referring to the Moore majority panel opinion as “disappointing,”

Professor Capra explains:

(Cont'd)

testimony); Sorensen v. Shaklee Corp., 31 F.3d 638, 647-51 (8th Cir. 1994)

(affirming exclusion of medical doctors’ testimony concerning causation

of birth defects by alfalfa tablets contaminated with EtO); O’Conner y.

Commonwealth Edison Co.. 13 F.3d 1090, 1105-07 (7th Cir. 1994)

(affirming exclusion of medical doctor’s testimony regarding radiation as

Cause of cataracts); Porter v. Whitehall Laboratories, Inc., 9 F.3d 607.

612-16 (7th Cir. 1993) (affirming exclusion of medical doctors’ testimony

on causal relationsnip between Ibuprofen and renal failure),

87. Pet. at 13.

88. Pet. at 14-16 & n.2.

89. See Daniel J. Capra, The Daubert Puzzle, 32 Ga. L. Rev. 699,

749-51 (1998).

Zé

The Moore panel’s analysis is flawed because it

permits a party to evade the requirements of hard

science simply by calling a clinical expert who can

testify to causation without having to rely on

epidemiological evidence, animal studies, or any other

of the bases ordinarily used by scientists. The fact that

clinical medicine and laboratory medicine have

different goals does not mean that a clinical doctor

should be able to testify to causation on the basis of

information that a laboratory scientist would reject as

insufficient. The Moore court ignored the fact that

clinical experts treat patients — they do not conclude

definitely on causation in toxic tort situations. The

Moore decision allows the clinical expert to testify in

court to a conclusion that the expert would not and

could not reliably draw in his professional life. Happily,

the Fifth Circuit has granted en banc review in Moore,

and hopefully the panel’s error will be corrected.”

Just as Professor Capra had hoped, the majority panel’s error was

promptly corrected by the en banc majority decision.”' Indeed,

Professor Capra’s reasoning is echoed in the en banc majority

opinion: “determining the etiology of a disease — its cause —

involves the same scientific exercise, whether the decision is made

by aclinician, an epidemiologist, or other scientist.”

As for Professor Graham, the other scholar on which the Moores

rely, his position can only be viewed as aberrant. In quoting extensively

from Professor Graham’s article, Petitioners fail to mention this critical

point — the article’s primary thesis 1s that Daubert was wrongly

decided:

90. Id. at 750-51 (citations omitted).

91. See id.

92. App. 12a n.6 (quoting the amicus brief of Professor Alvan R.

Feinstein, Sterling Professor of Medicine and Epidemiology at the Yale

University School of Medicine and author and co-author of more than 375

peer-reviewed articles and five scientific texts, including Clinical

Judgment).

f

Daubert is a very incomplete case if not a very bad

decision. It does not, in any way, accomplish what it

was meant to do... . Daubert can never work wel] as-

is. The Daubert box must be removed.”

Thus, it-is-not surprising that Professor Graham cites favorably

the Moore two-member majority panel opinion. Because Professor

Graham specifically rejects this Court’s opinion in Daubert, his

article provides no assistance in evaluating the decisions of circuit

courts that are striving to follow that binding authority.

E. The en banc Fifth Circuit’s decision is correct.

1. The Fifth Circuit correctly refused to apply a less rigorous

admissibility standard merely because the causation

expert was a clinical physician.

According to Petitioners, the trial court and the en banc Fifth

Circuit erred by failing to judge the reliability of the causation opinion

by the typical approach used by clinical physicians. But in evaluating

the admissibility of an expert’s medical causation testimony, the

Standards of relevance and reliability do not vary depending on

whether the expert is a medical doctor, a toxicologist, or some other

type of scientist. If they did, plaintiffs would have every incentive to

engage in a “race to the bottom” in Selecting a medical causation

expert.”

Instead of presenting the causation testimony of epidemiologists

or toxicologists — scientists who specialize in determining medical

Causation — plaintiffs would routinely select clinical physicians or

other medical providers, who would be allowed to base their medical

Causation opinions on nothing more than vague references to “clinical

procedures” or unsupported reliance on “differential diagnosis.”

93. Michael H. Graham, The Daubert Dilemma: At Last a Viable

Solution?, 179 E.R.D. 1, 4, 18 (1998).

94. Cf. Capra, supra note 89, at 748-49 (noting that if less rigorous

Standards apply to the testimony of certain types of experts, then the result

would be a “race to the bottom for experts’’).

95. Cf. App. 70a-71a (majority panel opinion) (in contrasting “hard

science” with clinical medicine, noting that clinical physicians regularly

rely on “ethics, compassion, and... a willingness to take responsibility

in the face of the unknown”).

24

Indeed, if the reliability standard plummets for experts who do not

use the scientific method in their daily work, then a palm read night

be allowed to rely on an erratic “life line” to pinpoint the onset and

cause of a plaintiff’s cancer.

In O’Conner v. Commonwealth Edison Co., the Seventh Circuit

rejected a similar argument that clinical physicians’ causation

testimony should be evaluated under relaxed standards of reliability

and relevance:

Mr. O’Conner also seems to argue that, because Dr.

Scheribel is a treating physician, he is exempt from the

requirements of Federal Rules of Evidence 702 and 703.

However, we do not distinguish the treating physician

from other experts when the treating physician is

offering expert testimony regarding causation.”

As the en banc majority concluded in the present case, there is

simply no good reason that an expert’s medical causation testimony

should escape the Daubert analysis simply because he describes

himself as a “clinical physician.”

Contrary to Petitioners’ suggestion, the exclusion of Dr. Jenkins’s

causation opinion was not a challenge to his credentials or his

accomplishments as a clinical physician. Exactly as in Daubert, the

trial court was not called upon to rule upon expert qualifications.

Instead, it was required to determine whether the causation opinion

that the Moores proposed to put into evidence was “scientific

knowledge,” as defined in Daubert.

As proponents of the evidence, the Moores had the burden of

proving its admissibility.” Yet, given two opportunities to demonstrate

that Dr. Jenkins had a reliable basis for his causation opinion, the

Moores failed to offer evidence that would sustain a finding of

reliability and “fit.” The trial court was thus faced with a situation

similar to that in Rosen v. Ciba-Geigy Corp, where the Seventh Circuit

96. O'Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1105 n.14

(7th Cir. 1994).

97. See Daubert, 113 S. Ct. at 2796 n.10 (citations omitted); Lust,

89 F.3d at 598; American & Foreign Ins. Co. v. General Elec. Co., 45 F.3d

135, 139 (6th Cir. 1995).

25

affirmed the trial court’s decision to exclude the testimony of “a

distinguished cardiologist and department head at the University of

Chicago.””* Writing for the court, Chief Judge Posner noted that a

district court “must determine whether the evidence is genuinely

scientific, as distinct from being unscientific speculation offered by

a genuine scientist.” The Fifth Circuit did not err in concluding that

the trial court acted within its broad discretion in excluding a portion

of Dr. Jenkins’s “unscientific speculation.”

2. The Fifth Circuit correctly refused to limit Daubert’s

applicability to cases involving “junk science” or to experts

labeled “hired guns.”

Petitioners argue that the Daubert requirements were intended

to exclude “junk science.” From this proposition, they reason: “Since

junk science was not involved here, the court of appeals’ analysis

was wrong.”’” But Daubert itself refutes that argument: “we do not

read the requirements of Rule 702 to apply specially or exclusively

to unconventional evidence.’”!”!

Similarly, Petitioners suggest that the Daubert requirements are

somehow limited to determining whether the expert is, on the one

hand, a “hired gun,” or on the other hand, a person whose opinion is

accepted in his field.'°? But a “hired gun” is merely a shorthand term

for an expert who has developed an opinion expressly for purposes

of testifying.'°? That is, before the plaintiff’s case arose, the expert

had never expressed the opinion in any book, article, or speech. This

failure to previously acknowledge a theory — especially a general

causation theory — is merely one indication that the testimony may

98. See 78 F.3d 316, 318 (7th Cir. 1996).

99. See Pet. at 20.

100. /d.

101. Daubert, 509 U.S. at 592 n.11, 113 S. Ct. at 2796 n J I.

102. See Pet. at 20.

103. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311.

1317 (9th Cir. 1995) (noting that a “very significant fact to be considered

is whether the experts are proposing to testify about matters growing

naturally and directly out of research they have conducted independent of

the litigation, or whether thev have developed their opinions expressly for

purposes of testifying”).

26

lack scientific reliability.'“ While Dr. Jenkins may have examined

Mr. Moore before this suit was filed, his testimony in this case was

his first public expression of his general causation theory — that

exposure to any irritant, at unknown levels, can cause RADS.

Daubert’s purposes certainly include keeping “junk science” out

of the courtroom, along with the expert testimony of “hired guns,”

whose opinions are formulated solely to support a litigant’s case. But

contrary to the Moores’ suggestions, these policy matters do not in

any way limit Daubert’s applicability in this case.

F. The en banc Fifth Circuit properly applied an abuse-of-

discretion review to the trial court’s evidentiary ruling.

Parroting the en banc dissent’s analysis, Petitioners argue that

the Fifth Circuit majority reviewed the trial court’s exclusionary ruling

under a de novo, rather than an abuse-of-discretion, standard.'*’ As

demonstrated above, this is simply not true.’ The Fifth Circuit

correctly reviewed the trial court’s rulings under the standard

announced by this Court in Joiner and properly detailed the reasons

why the district court was entitled to conclude that Dr. Jenkins’s

causation opinion was unscientific and unreliable.'”’

Moreover, Petitioners fail to recognize the fatal flaw in their

argument. If the review was more stringent than required under Joiner,

and the en banc court actually conducted a de novo review and

affirmed 12 to 3 the exclusion of the causation opinion, then the same

result would necessarily follow under the more deferential abuse-of-

discretion standard.

104. See Capra, supra note 89, at 709 (noting that this factor is

especially important “on issues of general causation” — does a certain

substance cause a certain harm? — because “[o]ne could expect a scientist

to research that general question as a scientist and not as an expert

witness’’).

105. Pet. at 22-27, App. 44a-50a.

106. See subsections A and B of “Reasons for Denying the Writ,”

supra.

107. App. 17a-21a.

i)

~]

CONCLUSION

The Fifth Circuit’s opinion correctly applies recent guidance from

this Court on the admissibility of medical causation testimony and

on the standard of review for such admissibility rulings. This decision

does not conflict with any decision of this Court, does not create a

conflict with the decisions of other circuit courts of appeals, and does

not meet any of the other criteria for certiorari review by this Court

Accordingly, the Petition for Writ of Certiorari should be denied

Respectfully submitted,

DEBORA B. ALsup

Counsel of Record

BEVERLY RAY BURLINGAMI

WILLIAM L. BANowsky

THOMPSON & KNIGHT

A Professional Corporation

98 San Jacinto Boulevard

Suite 1200

Austin, Texas 78701-408]

(S12) 469-6100

W. KYLE CARPENTER

Woo Lr, McCLANneE. oer

ALLEN & CARPENTER, LLPC

900 Riverview tapi

Knoxville, Tennessee 3790]

(423) 215-1000

Attorneys Jor Responds nt