pageok
pageok
pageok
Two Questionable Expert Evidence Rulings:

In 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.

Displaced Midwesterner:
Whenever I hear about weird expert testimony being allowed in, or plausible testimony being excluded, I always wonder what the parties were actually arguing. Daubert is not exactly the easiest standard in the world for a judge to apply, but the real problem seems to be that lawyers often have no idea what they are supposed to be arguing about.
4.10.2009 9:27am
loki13 (mail):
Prof. Bernstein,

First, thank you for opening up comments. I enjoy your comments on evidence (spec. Daubert).

Second, I need time to fully digest the first opinion. I think on balance you are correct, but it is not quite as wrong as it first appears to be. IOW, let me give you a hypothetical:
1. Doctor leaves a sponge in patient's left leg during surgery.

2. Shortly after surgery, the patient develops some condition in the left leg (rash, gangrene, leg-falling-off-itis) that has no other known cause, but also no generally known causal mechanism from the sponge.

3. An expert witness wishes to testify about a causal sponge/leg-falling-off-itis, but due to a variety of Daubert factors (not published, not peer reviewed, no error rate etc.) is not allowed to testify.

4. So, there might be a res ipsa (sponge left in, then bad thing) that can be rebutted by the defendant to show there is no causation.

I think this is (somewhat) closer to this example. In a perfect world, if there is no statistically significant evidence of causation, we wouldn't be asking this question (see Daubert, J. Kozinski, 9th). But I sort of see the (wrong) point the majority is making.
4.10.2009 9:49am
Adam J:
The dissenting justice in Gass has a point, however he's also made some bizarre conclusions in his opinion. He claims that there was no breach of duty and there was no causation. While both might be an issue in a case, it's absurd for a judge to rule there's no facts in evidence that could establish these elements. The Marriot obviously should have asked the plaintiffs to change rooms or waited until the room was vacated before spraying pesticides. And the fact that the plaintiffs suddenly get sick soon after getting a exposed to a bunch of chemicals is evidence of causation- evidence enough to preclude a summary ruling by the judge.
4.10.2009 10:11am
Prosecutorial Indiscretion:
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.

Gosh, if the American Academy of Environmental Medicine recognizes environmental medicine as a legitimate specialty, who are we to disagree?

Dr. M'bakabaka Tep Tep
Summoner of the Spirits of the Departed for Evidentiary Purposes
mbakabakateptep@billywitchdoctor.com
4.10.2009 10:11am
DavidBernstein (mail):
Loki, I don't think the 6th circuit majority opinion is unreasonable, just ultimately wrong. Perhaps bad lawyering by the plaintiffs' attorneys in not finding a qualified toxicologist to testify.
4.10.2009 10:29am
Curt Fischer:

In a perfect world, if there is no statistically significant evidence of causation...


I don't want to be toooo pedantic, but statistics can never speak to causation. There is no such thing as "statistically significant evidence of causation", except insofar as correlation is evidence of causation.

There is a second problem with the most commonly used measure of statistical significance, too. I was reading about it the other day, and it's pretty interesting. Most of the time, "statistical significance" is indicated by simple Fisher-type hypothesis testing. Unfortunately, findings which are statistically "insignificant" indicate only that the null hypothesis cannot be rejected. Statistical insignificance does not mean that the null hypothesis is supported. So in your example, even if someone had studied whether sponges in the leg caused fall-off-itis and found no "significant" correlation between the two events, the state of scientific and statistical knowledge would not justify rejection of the idea that sponges caused fall-off-itis.
4.10.2009 10:32am
Kent G. Budge (www):

And the fact that the plaintiffs suddenly get sick soon after getting a exposed to a bunch of chemicals is evidence of causation- evidence enough to preclude a summary ruling by the judge.


No, it's not. It's the classic post hoc, ergo propter hoc logical fallacy.

But then I'm not a lawyer. Maybe it's not a judge's duty to protect a jury from classical logical fallacies.
4.10.2009 11:25am
Adam J:
Budge - It's true that it's merely correlation, not causation. However correlation is evidence that there may be causation.
4.10.2009 11:57am
Sean M.:
Budge,

The problem is NO evidence would be admissible under your theory, even standard lay testimony.

Witness: "I saw the defendant running away from the scene after the shots were fired."

Prosecutor: "See? The defendant is guilty."

Literally, this is merely correlation. The defendant may have been running away for any number of reasons. It doesn't prove the running is casually related to the shots being fired. But it is the sort of evidence that juries can, and do, consider.
4.10.2009 12:07pm
Dave N (mail):
I agree that Judge Boggs seems to have the better argument--that the evidence of causation is fairly week.

On a wholly unrelated note, I wonder how many trips to Hawaii the Plaintiff and Defense attorneys got to take in the course of this litigation.
4.10.2009 12:45pm

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.