Posted by David Bernstein:
Two Questionable Expert Evidence Rulings:
http://volokh.com/archives/archive_2009_04_05-2009_04_11.shtml#1239368758
In [1]Gass v. Marriott Hotel Services, Inc.,
558 F.3d 419 (6th Cir. 2009), the plaintiffs claimed that after
exposure to a "cloud" of pesticides in their hotel room, they suffered
from "multiple chemical sensitivity" resulting in a variety of
symptoms. The district court held that the plaintiffs' experts were
not qualified to determine what pesticides the plaintiffs were exposed
to, at what levels, or whether their exposure caused their symptoms.
The district court therefore granted summary judgment to the
defendants. On appeal, the Sixth Circuit agreed that the experts'
exposure and causation testimony was inadmissible, but held that under
Michigan law the case could nevertheless go to the jury on what
amounts to a res ipsa loquitor theory. Judge Danny Boggs, dissenting,
persuasively argues that its beyond the common knowledge of lay jurors
to determine whether a variety of symptoms that have many different
causes can be attributed to an unknown dose of chemicals that have not
been positively identified. It's certainly rather strange for a court
to hold, as the majority did, that a medical doctor is not qualified
to testify regarding causation, but lay jurors can nevertheless draw
an inference of causation from common knowledge. My own antenna are
raised by the diagnosis of "multiple chemical sensitivity," which has
never been shown to exist as a medical condition, except perhaps in
the realm of psychosomatic illness.
And speaking of MCS, in Kennedy v. Eden Advanced Pest Technologies,
222 Or.App. 431, 193 P.3d 1030 (Or. App. 2008), the court wrote an
atrocious opinion allowing in MCS evidence. Here are a few choice
quotes:
Although the American Board of Medical Specialties does not
recognize "environmental medicine" [formerly known, and discredited
as, "clinical ecology"] as a specialty, the American Academy of
Environmental Medicine does. Again, the implication from those
facts is that there exists a legitimate debate within the
scientific community between two groups of scientists. For example,
Rea testified that his technique for determining the existence of
chemical sensitivity in a patient is commonly used in the medical
community to which he belongs. In contrast, Burton suggested that
only "fringe" medical practitioners would diagnose for toxic
illness in the manner that Rea does. In our view, the trial court,
in performing its gatekeeping function, need not keep from the jury
evidence that demonstrates only such a conflict among professionals
[editor: like the conflict between mainstream biologists and
creationists?].
Moreover, we observe that the evidence is in conflict about the
"potential rate of error" of Rea's diagnostic technique. Burton
testified that the error rate is 100 percent, a statement that
follows ineluctably from his view that chemical sensitivity does
not exist. But a jury might not have been persuaded of that premise
in light of Rea's qualifications and clinical experience...
[shouldn't the court be looking at the scientific evidence for MCS,
not the qualifications and experience of the expert? Homeopaths are
well "qualified" in homeopathy and can be experienced as well, but
that hardly speaks to the reliability of homeopathy. Maybe the
court would allow experienced Reiki specialists to testify to the
magnetic energy fields their "healing touch" conveys...]
"Indeed, even defendants' expert agreed that chemical sensitivity is
not a new or previously unheard of diagnosis, having been first
proposed in 1940." [So? Astrology is even older!]
And my personal favorite. After acknowledging that many other
jurisdictions have excluded MCS evidence:
Under Oregon law, however, the proper inquiry is not whether MCS or
chemical sensitivity is a "valid" diagnosis or is recognized by
other jurisdictions; rather, we must, on the record in this case,
"decide whether truthfinding is better served by admission or
exclusion."
I am very curious to know how allowing a jury to hear expert testimony
of invalid diagnosis can "better serve truthfinding" than excluding
such testimony.
In the court's defense, it relied on Jennings v. Baxter Healthcare
Corp., 331 Or. 285, 14 P.3d 596 (2000), itself one of the worst
post-Daubert expert evidence opinions. Oregon adopted Daubert when it
thought the opinion provided a liberal admissiblity standard, but
declined to adopt a meaningful reliability standard once it became
clear that the full Daubert trilogy, codified in amended federal Rule
702, was far from a let-it-all-in standard. The end result is allowing
all sorts of quackery into Oregon courts.
I'm opening up comments for a few hours.
References
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1. http://www.ca6.uscourts.gov/opinions.pdf/09a0078p-06.pdf
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2. file://localhost/var/www/powerblogs/volokh/posts/1239368758.html
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