Bob T. Moore and Susan Moore v. Ashland Chemical, Inc. And Ashland Oil, Inc.

mоny under the Federal DENNIS, Rules of Evidence Before DAVIS and Circuit FALLON, interpreted Supreme in Judge Court Dau Judges, and District bert this v. Tel Watkins DENNIS, Judge: Circuit Inc., (5th Cir.1997) smith, 121 F.3d They repre authorities cited herein. case, negligence In this are called we “keep sent a “let it all in” neither nor a it all assessing to determine the standards for Instead, out” they interplay view. reflect the reliability proffer physi- of the of a clinical principles of the basic Rules of Federal expert opinion as to cause cian’s viz., Evidence, the liberal admis standards of plaintiffs light disease of Daubert v. sibility and relevance of Rules 401 and 402 Inc., Pharmaceuticals, Dow Merrell 509 U.S. assumption and the underlying Rules 702 (1993). 579, 113 S.Ct. 125 L.Ed.2d expert’s opinion and 703 “that the will have a (1) principles We conclude that: the basic experi rehable basis the knowledge and recognized by the Federal Rules of Evidence discipline.” ence of his 509 U.S. apply Daubert admission exclusion 587, 592, 113 S.Ct. (2) every type testimony; expert a trial therefore, judge, every proffer must assess I. Introduction expert testimony to whether it is determine Plaintiffs-appellants, relevant to the case and reliable under the T. and his Bob Moore principles Moore, wife, discipline against Susan filed this suit ana, Judge sitting by designation. 1. District of the Eastern District Louisi- court, essentially his own in Texas state al- and based defendants-appellees developed reactive on the same data that had been Moore had contracted leging that Dr. as the result of defen- and used Jenkins. airways disease causing dants-appellees’ negligence Moore trial, jury Dr. At the exposed gases a mixture chemical to be diagnosis was limited to his of Moore’s dis- premises. Defendants-appellees re- their on ease and did not touch causation. diversity court on suit federal moved the diagnosis Alvarez testified as both the grounds. Alvarez, the cause of disease. Dr. how- plaintiffs proffered ever, Before trial forming was forced to admit that in his credentialed clinical heavily of two well opinions he on the work and relied Daniel experts, Dr. Jenkins and physician opinions of Dr. Alvarez was Jenkins. Alvarez, expressed identical explain possible discrepancies Dr. Antonio who unable to on clinical medical methodolo- opinions compiled by based the data he used that had been T. Moore suffered from reactive gy that Bob Counsel for the defendants- Jenkins. airways that had been caused his appellees closing argument pointed disease out gases qualified the mixture chemical highly inhalation of that Dr. Alvarez not as premises. Dr. defendants-appellees’ Jen- as their medical causation who testi- opinion on his firsthand obser- kins based fied thаt Moore’s disease had not been taking history examining by exposure and to the vations mixture chemi- caused Moore, of tests he Bob T. on the results cals. Moore, performed on and performed or had jury interrogato- answered “No” to an The from other facts and data he obtained ry any, of asking negligence, whether the if examined, previously physicians who had defendants-appellees proximately the had Alvarez Moore. Dr. es- tested and treated injury question. caused the district facts, sentially adopted data and conclu- the nothing judgment take court entered a compiled developed by Dr. Jenkins. sions against plaintiffs. plaintiffs appeal- the proffer, opinion before the Dr. To confirm his ed, ruling as the assigning error trial court’s reports considered he Jenkins reviewed and testimony Dr. as to excluded Jenkins’ subsequent Dr. treat- Alvarez’s received Moore’s opinion his or inference that disease allergy testing of T. Moore. ment and Bob by his been caused response, defendants-appellees the moved In he encountered at the defendant- chemicals testimony of Dr. Jenkins and to exclude appellees’ facility. proffers grounds on the that the Alvarez reliable for their failed demonstrate bases Impact II. Daubert’s Illumination opinions. ruling oral excluded Dr. The trial court’s proffer The trial court concluded opinion of disease under Jenkins’ as cause demonstrated 403, apparently based on the Rules 702 and diagnosis of Moore’s reliable basis understanding Rules inter as court’s However, airways reactive disease. impacted Supreme preted by the Court’s opinion Dr. Jenkins’ court excluded Dow Pharma Daubert v. Merrell decision exposure to the chemicals caused the Moore’s 2786, Inc., ceuticals, 579, 113 S.Ct. 509 U.S. viz., (1) grounds, that under disease on dual (1993). Therefore, before 125 L.Ed.2d 469 opinion 702 Federal Rule of Evidence did ,and interpretation analyzing the trial court’s (2) basis, have that under a reliable prof particular application of the law the probative 403 Rule of Evidence Federal testimony, our expert will set forth fer of we outweighed value perti elements of the reading essential by Dr. prejudice Jen- that would be caused that have nent Rules Evidence Federal highly impressive qualifications. The kins’ impacted Daubert. been illumined and opinions as trial court admitted Alvarez’s cause as diagnosis both of disease 702 A. Rule reliable, despite fact evidentiarily provides 702 that: heavily on Dr. Jenkins’ Rule Dr. Alvarez relied 684 technical, scientific, 885, (1974); special- 157, or

If other 95 S.Ct. 42 L.Ed.2d 129 Terminals, will assist the trier of fact Robert Conti Carriers & knowledge Inc. ized (5th Cir.1982). 22 the evidence or to determine understand issue, a qualified a fаct in witness as an Daubert, question expert’s of an skill, knowledge, experience, expert by qualification 702 under Rule was not raised. education, testify training, or thereto experts The court stated that the were well an or otherwise. the form of impressively or credentialed. 509 582-583, U.S. at 113 S.Ct. 2791-92. Ac- expert testimony, In admitting Rule 702 cordingly, Daubert not affect does the fore- requires preliminary that two determinations going principles pertaining to qualifications. First, trial prof- be made court. qualified expert fered witness must Knowledge 2. skill, experience, knowledge, training, or Second, In Daubert v. Dow proffered expert’s Merrell Pharmaceuti education. Inc., cals, 579, 2786, opinion, U.S. S.Ct. inference must be (1993), scientific, Supreme L.Ed.2d Court special- based on technical or other called to determine the standard for that will knowledge ized assist the trier of admitting expert scientific in a fed fact the evidence to understand or determine 582, 113 eral trial. Id. at S.Ct. at 2791. The discussion, To fact in issue. facilitate we granted in light sharp court had certiorari “qualifications” as the refer to these among applying divisions reject courts components of “knowledge” Rule 702. Frye States, the test of v. United (D.C.Cir. App.D.C. 293 F. Qualifications 1923) opinion based a scienti scientific, expert must An have tech technique fic is inadmissible unless the tech specialized knowledge, nical or other and a nique is “generally accepted” as in reliable qualified expert by may be as an witness community. the relevant scientific skill, knowledge, experience, train reason of 585, 113 509 at U.S. S.Ct. 2792. 702; Fed.R.Evid. Christo or education. Frye The court held “general that phersen Allied-Signal Corp., 939 acceptance” displaced test had been (5th Cir.1991)(ere banc). 1106, 1110 Rule Evidence, Federal Rules of observing that: 702, according Advisory to Committee specifically governing expert Rule 702 testi- Note, expert permits only by not mony “general does not acceptance” establish experts carrying formal such credentials as as an absolute prerequisite admissibility; to university professional and degrees member drafting history of the rule does not witnesses, ships but also so-called skilled incorporate indicate an intention to such experiences permit whose testify them to standard; rigid “general and a acceptance” with authority given topic. Id. The standard would be at with odds the liberal inquiry expert testimony areas of may general thrust Federal Rules and their broad, similarly including address are scienti approach of relaxing the traditional barriers questions fic any and technical as as well opinion testimony. 588-589, to Id. at 113 specialized knowledge. other areas of Id. S.Ct. at 2794-2795. question The of whether the is suffi witness сiently qualified expert an Supreme as is a matter to The Court also held that pursuant be decided the court to require Rule Federal Rules trial judge to en- 104(a). Normile, United States sure that and all scientific testimony or (5th Cir.1978); Woodard, 784 & only relevant, Inc. v. evidence admitted is not but Loftin States, Cir.1978). 589, United 577 F.2d 1206 reliable. Id. at 113 S.Ct. at 2794. making inquiry, In this the trial court has Citing primary Rule 702 as the locus of this determining qualifica wide discretion obligation, the court decided the trial expert respect tions of a as an judge, proffer witness with when expert faced with a particular subject. to a Hamling testimony, v. United pursu- scientific determine must States, 104(a) 87, 108, 2887, 2902, 418 U.S. 94 S.Ct. ant Rule whether the (1974), (1) denied, 41 reh’g proposing testify L.Ed.2d 590 419 U.S. scientific knowl- - -, (C.D.Ill.1997); (2) -F.Supp. United trier of fact to assist the edge that will 1027, Starzecpyzel, F.Supp. States v. The or a fact issue. determine understand (S.D.N.Y.1995). prelimi- this entails a explained underlying nary of whether assessment methodology of hard Newtonian The testimony is reasoning of the scientific distinguishes it is what from other science knowledge soundly in scientific grounded inquiry. of human See Michael D. fields relevantly applied to can be Green, Expert Sufficiency Witnesses Id. at 113 S.Ct. the facts issue. Litigation: Evidence Toxic Substances Orange Legacy Agent and Bendectin (1992). Litigation, 86 Nw.U.L.Rev. Knowledge a. Scientific Hard methodology today is based on “Scientific generating hypotheses testing them to Speaking specifically of “scientific knowl- they Theoretically, see if can be falsified.... adjective edge,” Court stated that “ therefore, hypotheses affirmatively are not grounding in the implies a meth- ‘scientific’ course, only hypoth- proved, falsified. Of if a procedures of science.” Id. The ods and falsification, repeatedly esis withstands one Court elaborated: accept conditionally if tend to even body encyclopedic an “‘Science (citing Popper, Karl R. true.” Id. at 645-646 Instead, it knowledge the universe. about (1965); Discovery Logic of Scientific proposing represents process for Faigman, L. To Have and Have Not: David about refining explanations theoretical Assessing the Science to the Value Social subject testing that are to further world Emory Policy, Law L.J. as Science refinement____’ But, qual- order 1005,1015-17(1989); Interdisciplinary Panel knowledge,’ an ify ‘scientific inference Carcinogenicity, Criteria Evidence the scien- or assertion derived must Carcinogenicity, 225 Chemical Sci. Proposed testimony must be tific method. (1984)). i.e., supported by appropriate validation — known. ‘good grounds,’ based on what is Knowledge Outside Realm b. short, expert’s requirement Hard Science knowledge’ testimony pertain to ‘scientific that, Supreme Court noted In Daubert the evidentiary relia- establishes a standard “technical, apрlies also although Rule 702 bility.” Brief for Ameri- quoting Id. specialized knowledge,” its discus- or other Advancement of can Association the to the scientific context sion was “limited (Pa- et al. as Amici Curiae 7-8. Science expertise of that the nature the because omitted; emphasis original). in rentheses 8,n. at here.” Id. at 590 113 S.Ct. offered Thus, “scienti the Daubert Court defined that, Nevertheless, conclude 2795 n. 8. we “hard or knowledge” fic terms of science” in (cid:127)is that the except where it self-evident i.e., knowledge science” ob “Newtonian only specifically apply to court’s remarks through “the scientific tained and tested prin- knowledge,” the general that “scientific method,” of which Sir Issac Newton ciples recognized Rule the decision of 702 leading exponent. See Edward J. Imwinkel species expert other of tes- applicable are to ried, Daubert, Step Develop Next The After Telsmith, Moreover, in v. timony. Watkins Approach ing Similarly Epistemological A (5th Cir.1997), 984, another 991 Reliability Ensuring To The of Nonscientif recently panel this concluded of court Testimony, L.Rev. Expert ic 15 Cardozo expert’s is based an “whether Ency 2271, (1994)(citing 5 The 2276-2277 ‘scientific, specialized other technical or (Paul clopedia Philosophy 490-491 Ed Rule 702 demand knowledge,’ Daubert and Laser, ed., 1967)); Jennifer Com wards methods, court evaluate the that the district ment, Gatekeeping in Federal Inconsistent in relied analysis, principles reach- Application Daubert v. Merrell Courts: ing opinion.” Pharmaceuticals, to Dow Inc. Nonscientific began by stating 1379, The Daubert court Expert Testimony, Loy. 30 L.A.L.Rev. Hall, legislatively-enacted (1997); interpret “[w]e 1404 States United 686 589, Further, any Rules of Evidence as we would U.S. at 113 at 2794.

Federal S.Ct. 587, premise 2793(citing Id. at 113 at court for the re- S.Ct. observed statute.” 153, Corp. Rainey, requirement 488 laxation the usual of first- Beech U.S. Aircraft 163, 439, 446, knowledge any type qualified hand when 109 S.Ct. 102 L.Ed.2d 445 (1988))(“Because expert assumption testifies is “an Rules of the Federal Evi enactment, expert’s opinion will have a a reliable basis legislative dence are courts turn knowledge experience of his statutory disci- to the ‘traditional tools of construc Thus, 592, ”) pline.” Id. at 113 S.Ct. at 2796 provisions.’ tion in order to construe their plainly judge, Daubert indicates that the trial Accordingly, guided a must not be proffer expert when with the faced testi- sentence, single sentence or member of a but mony any study, field of must determine law, provisions look to the of the whole reasoning methodology whether the or un- object policy. to its United States Nat. derlying the is valid under the Independent Agents Bank Or. v. Ins. Id.; principles discipline of involved. See America, 439, 455, 2173, 508 U.S. 113 S.Ct. College Lawyers, American of Trial Stan- 2182, (1993)(citing 124 402 L.Ed.2d United Determining dards And Procedures For (8 Boisdore, How.) Stаtes v. Heirs 49 U.S. Admissibility Expert Evidence 113, 122, (1849)). 12 A statutory L.Ed. 1009 Of After (1994). Daubert, 571, 157 F.R.D. 578 text living consists of words a communal existence, meaning of each word inform Reliability: expert’s c. or all taking purport the others and their grounded inference must 454, from Id. their context. at 113 S.Ct. at discipline. of his Federbush, Co., (citing 2182 NLRB v. 121 (2nd 954, J.)). Cir.1941)(L.Hand, 957 pro- The Daubert 702 court read Rule “ sociis, technical, The maxim noscitur that a word is vide that scientific or ‘[i]f keeps, known company specialized is often will knowledge used assist the trier of giving scope avoid one word inconsistent fact to or understand the evidence to deter- “ ” “ companions with giving its ‘may thus ‘unin mine a testify fact issue’ Congress.’” Daubert, 589, tended breadth to the Acts of thereto.’” 509 U.S. 113 Co., 561, 575, deleted). v. Alloyd (emphasis by 513 U.S. S.Ct. at 2794 Court Gustafson “ 1061, 1069, 115 “Knowledge” S.Ct. 131 L.Ed.2d 1 ‘applies any this context (1995)(citing quoting body body Jarecki v. G.D. of known facts of ideas Co., Searle & accepted U.S. S.Ct. inferred such facts or ” 1579, 1582, (1961)). good grounds.’ L.Ed.2d truths on Id. 2795(quoting S.Ct. at Third Webster’s New Consequently, requirements that Dau- Dictionary (1986)). International 702, viz., bert found be inherent in Rule (1) trial judge that, must ensure that the Court indicated expert’s relevant, only evidence is knowledge” but “scientific within Rule 702 means reliable, “technical, applicable theories, must be principles, or techniques or inferences specialized other knowledge,” well as to derived the scientific a body method Otherwise, (2) scientific testimony. methods; Rule of 702 sound scientific and that the place would admissibility proffered expert’s inference, not on the opinion, limits of or testi- expert testimony comparable non-scientific mony knowledge, based on scientific in order imposes purportedly those it evidentiary reliability scientific to have or trustworthi- ness, evidence. must be derived or inferred the 9, same methods. Id. 590 n. 113 S.Ct. at Moreover, opinion the Daubert at sev 2795; “general See also the court’s observa- points implies eral clearly is drawing that it principal tions” on scientific methods. Id. at on principles of the Federal Rules that are 593-594, 113 S.Ct. at 2796-2797. applicable generally types expert to all of testimony. token, The court By stated that “Rule 702 the same we conclude ... clearly contemplates that, 702, degree reg opinion some of an under Rule based on subjects ulation of the specialized and theories about knowledge, technical or expert Daubert, which may testify.” an grounded principles, 509 must in the be methods

687 (7th Cir.1996)(Rule particular of 371 702 demands that of field procedures and the Every discipline experts em- “adhere to the same of knowledge involved. standards methods, rules, postu- rigor and are in their ploys body of intellectual demanded ordinary lates, i.e., its methodology, both in professional 369)(citing work.” Id. at Rosen (7th developing adopting 316, in and Ciba-Geigy Corp., functions and 78 F.3d 318 concepts, analogues. techniques, Cir.1996))); and Tyus new See also v. Urban Search Therefore, (7th “knowledge” each disci- 256, the Management, 102 F.3d 263 702, principles pline, Cir.1996)(“Social Rule is both its testimony under ... science must theories, tech- methodology and person possess be to be sure that the tested its niques produced through or inferences expertise in a genuine es field that her Thus, methodology. proffered testimony ‘adheres to the same stan in any expert knowledge, field order in a rigor are dards intellectual demanded reliable, evidentiarily either be must to be ”)(quoting Braun professional [her] in work.’ knowledge, soundly current on the Inc., based 230, 234 Cir. v. Lorillard expert’s principles methodology of the 1996)). soundly inferred or derived discipline or be or inference d. Relevance:

therefrom. must relevant to case. Lawyers’ College of Trial As the American concludes, report “[WJhether requires Rule 702 further accounting principles, economic concerns evidence or “assist the trier of fact standards, property or other non- valuation to understand evidence or to determine a subjects, it should be evaluated seientifie goes in primarily fact issue.” This condition experience’ ‘knowledge reference Daubert, 590, to relevance. 509 U.S. at extent, Dau- particular To that of that field. “‘Expert which S.Ct. universally ought regarded as bert to be not does relate issue case expert American applicable evidence.” and, ergo, non-helpful.’ 3 Wein relevant Lawyers, College Trial Standards Berger ¶ 702[02], p. 702-18. See & stein Determining the Admissibili- Procedures Downing, for also United States Expert ty Evidence Cir.1985)(‘An (3d after con additional (1994). F.R.D. under Rule 702—and another as sideration relevancy—-is pect of whether testimo reasons, re this court the same For ny proffered sufficiently in tied to the case is Telsmith, Inc., 121 cently held in Watkins v. jury of the case that it will aid the the facts (5th Cir.1997) application of F.3d 984 ” dispute’). resolving a Id. at factual admissibility determining Daubert study phases at 2795. “The S.Ct. expert testimony is not limited to “scientific moon, provide example, may valid knowledge” scientific evidence. or “novel” ‘knowledge’about whether a certain scientific Watkins, Moreover, this Id. at 989-991. dark, if is a fact in night was darkness that: court concluded issue, trier of knowledge will assist the [Wjhether expert’s testimony is an based (absent grounds creditable fact. However “scientific, specialized technical or other link), supporting such a evidence that knowledge,” Rule 702 Daubert and demand night full will not moon was on a certain the meth- court evaluate district wheth determining of fact assist the trier ods, analysis, principles relied unusually likely to have er individual reaching оpinion. court should irrationally night.” on that Id. behaved opinion ap- comports with ensure that plicable professional standards outside gatekeeper. judge e. trial is the The it “will have a courtroom and that reliable experience of knowledge basis prof with a Accordingly, when faced discipline.” [the] scien expert’s testimony a to qualified fer of 592, tific, Daubert, knowl specialized or other at technical 991(quoting Id. at 509 U.S. 2796.) (also at the edge, judge the trial must determine citing quoting 113 S.Ct. at 104(a), outset, Indus., 362, Rule whether the pursuant Lyle 93 F.3d 366- Cummins v. 688 methods, soundly or

proffered opinion inference is at 2796. These hard now scientific factors,” methodology expert’s are of the sometimes called “Daubert em- grounded in the pirical peer publication, testing, review and or infer- discipline and whether error, potential of known or rate the exis- a to an is fact issue or ence relevant operational of tence and maintenance stan- the evidence. understanding of Cf. dards, acceptance a 589-592, within relevant sci- 113 at 2794-2796. 509 U.S. at S.Ct. 593-94, community. entific Id. at 113 S.Ct. emphasized that trial The Court at 2796-2797. 702 judge’s inquiry under Rule is a flexible approaches permissi objectives, functions, one. Different Because the ble, principles on subject the focus must be methodology but matter and of hard sci expert’s vary significantly which the ence of those based, medicine, discipline of is on the merits of clinical as distin 12, 113 expert’s laboratory Id. n. guished conclusion. at 594-595 from research medi cine, “Vigorous techniques at 2797-2798. S.Ct. cross-examina the hard science or methods evidence, tion, presentation contrary generally that became the factors” “Daubert proof not appropriate assessing careful instruction the burden of are are for the eviden tiary reliability appropriate proffer the traditional and means of at clinical tacking shaky testimony. but admissible evidence.” Id. medical 596, (citing 113 S.Ct. 2798 Rock First, goals disciplines of the of clinical Arkansas, 44, 61, 2704, 483 U.S. 107 S.Ct. medicine and hard or Newtonian science are (1987)). 2714, “Additionally, 97 37 L.Ed.2d science, In different. hard the usual motive event trial court concludes that the gain inquiring: understanding is a new presented supporting scintilla of a evidence some mechanism of R. nature. Alvan Fein- position is insufficient to allow reasonable stein, (1967) Judgment 22 Clinical [hereinaf- juror ‍‌‌‌‌‌‌​‌​‌‌​​​‌​‌​​‌​​‌‌‌‌​‌​​​​‌​‌​​‌​​‌​‌​​‌‌​‍position more like conclude contrast, ter the care and Feinstein]. true, ly than not is the court remains free to patient treatment of the is individual 50(a), judgment, Civ. direct Fed. Rule Proc. ultimate, specific act characterizes summary grant judgment, and likewise to 27; physician. Pellegrino clinical Id. at (citing cf., e.g., Fed. Rule Proc. 56.” Id. Civ. Thomasma, For The Patient’s Good Pharmaceuticals, Turpin v. Dow Merrell (1988); Thomasma, Pellegrino and A Philo- (6th Inc., Cir.), denied, cert. sophical Basis Medical Practice 120 84, 121 506 U.S. 113 S.Ct. L.Ed.2d 47 (1981)(“[T]he process whole to a ordained (1992); Brock v. Merrell Dow Pharmaceuti practical specific right end —a action for a (5th cals, Inc., Cir.1989), F.2d 307 modi particular patient ... this end must —and fied, Cir.1989), denied, cert. step leading important modulate each to it in 494 U.S. 110 S.Ct. 108 L.Ed.2d ways.”). therefore, physician, The clinical (1990)). must take immediacy account of the of the problem confronting for her she bears an f. The Daubert “factors” are hard scientific relationship patient. essential to each Addi- generally inappropri- methods that are tionally, many she has human values con- reliability ate assessment clini- ethics, compassion, and have a must sider — testimony. cal medical willingness responsibility to take in the face A. Murphy, unknown. Edmond After declaring evidentiary reliability (1976)[hereinafter Logic Medicine 6 Mur- expert’s of an opinion depends scientific phy], pursuit goals these different soundly whether it grounded in the the hard science and clinical method, medicine serves to scientific the Daubert Court identi shape objectives the distinct of the scientific techniques fied several individual methods or experiment and the clinical treatment of a within body of hard or Newtonian scienti patient: fic methodology appropriate for trial

judges’ treatment, testing use in the methodology-relat In clinical main motives are particular remedial, edness hard prophylactic: change scientific or to what proffers. Daubert, 593, 113 prevent U.S. S.Ct. nature has or to it done what work, premise “symptoms,” “signs,” or and which find- laboratory the is are In do. hy- during a new goal ings objectively physi- is test discerned innovative: the the ordinary procedure. Feinstein, a In pothesis or new cal examination. at 24-25. treatment, repeti- premise the is clinical data, Using these the clinician determines (or reproduce surpass) goal tive: the is (which present diagnosis gives a the disease experiments conducted best results of the wrong), past a name tells and what is a A clini- similar circumstances. before (or etiology pathogenesis got and how in a new situation cian chooses treatment (or way), prognosis therapy and a future and reviewing and what by what done it). what to do about Id. at 25. Some of the that re- happened previous situations data used the clinician can ob- often be hand; then selects the one at he sembled fluids, cells, examining patient’s tained the the of treatment had most whatever mode tissues, excreta, roentgenograms, graphic Id. at 22. past. outcome successful tracings, and derivative substances. trеatment, purpose ordinary In clinical the patient’s personal The environmental data knowledge repeat a gain but to not new nurses, secretaries, can often be elicited past. Id. at 23. success workers, social or But other interviewers. Second, subject the matter and conditions examination, history-taking, physical the and work, laboratory study “In are different. symptoms signs the determination of and can animal, experimental material is an intact the properly only by be done a doctor skilled animal, person or part a of a or of an procedures the Id. clinical described above. treatment, system; in clinical the inanimate “Moreover, physician’s] capacity [clinical the Id. being.” is an intact human material to make of a judgments cases kind which experi- initiates the 22. The hard scientist depend he has seen must ulti- never before own and at a time of his convenience ment mately capacity equiva- on cultivated see regard usually the material without chooses quite disparate things, that lences between participation. Id. to its or consent for desire is, analogy.” Murphy, at 9. medicine, patient initiates the In clinical duration, treatment, time, sum, place, choosing the hard Newtonian scientific physician subjects “The is not knowledge comprehend and clinician. Id. not all does studying properties com- subjected chemical theoretically its might tube; pounds postpone in a he cannot test methodology. knowledge particular It is fifty in a dealing patient with cancer kind, gathered or and limited tested years hopes by because he then to have particular T.H. and characteristic method. into nature of insight much clearer (1953). Savory, Language Al- Science Id. disorder.” parts utilizes though clinical medicine sciences, and some clinical medicine hard Finally, hard science clinical medicine and many are hard subsidiary fields not its markedly methodologies. A have different criteria, purposes, values sciences. The types clinician at least three data observes methods of hard or Newtonian science patient treatment: undergoes for each who clinical far identical. medicine are chemical, in morphologic, A microbi- disease Mettler, Fred Medical Sourcebook A. impersonal physiologic, or other ologie, (1959). Consequently, xxxiv the Daubert terms; in whom disease occurs host factors, se- are hard scientific methods which background, including and his environmental body of hard scientific lected from (such race, age, personal properties as generally are knowledge education) sex, and and external surrоund- rele- appropriate assessing for use in (such location, occupation, ings geographic as reliability testi- vance of clinical medical status) financial and social before the Instead, mony. gatekeeper court as trial began; that occurs in disease illness pro- should whether doctor’s determine and its the interaction between disease physician posed a clinical host, consisting of clinical environmental sensations, soundly principles phenomena: subjective grounded in the host’s 690

methodology his cordingly, of field of clinical medicine.2 we now read the Federal Rules of Evidence, 703, including Rule the without

B. Rule 703 Frye-focal influence lens. provides that: Rule 703 703, Under qualified rale ex particular or data in The facts the ease pert may apply reliably his relevant and upon expert an or which bases grounded knowledge expertise and to facts may perceived by inference be those or in particular the data case in order to expert or known to the before the made express pertinent opinion form and in or type reasonably hearing. If of a relied ference. The facts may or data derived be upon by experts particular in the field in (1) facts, the from first hand of observation forming opinions or inferences the data, opinions perceived or by the witness subject, facts or need not the data be (2) trial, facts, opinions before the data or evidence. in admissible (as presented hypo trial the familiar Prior to this took the question thetical by having expert or the that, admitting expert position before testi attend the trial and hear the es court, mony, part trial or in of addition facts, tablishing data, opinions the relied 703, preliminary inquiry its under Rule (3) on), facts, opinions or presented data or test, i.e., apply Frye the court must the must expert outside of court other than used a well- determine witness perception. his own direct Fed.R.Evid. 703 reasoning or founded mode advisory they committee’s note. If are of a sufficiently gained gener established to have type reasonably upon by experts relied acceptance particular in al field in which field, facts, opinions such data or presented Christophersen belongs. Allied-Signal v. expert out of court be admit need not (5th 1106, 1110, 1111, Corp., 939 F.2d 1115 or ted even admissible in evidence. United Cir.1991). Daubert, however, the Su (5th Harper, 115, States v. 802 121 F.2d preme Frye “general held that Court Cir.1986). The designed bring rale is acceptance” displaced by adop test was judicial practice into practice line with of the tion Federal Rules of Evidence. Dau experts themselves when not in court. Unit bert, 588-589, 509 U.S. at S.Ct. at 113 2793- Williams, 1285, ed States 1290 “general 2794. The court stated that (5th Cir.1971), denied, 954, cert. 405 U.S. acceptance” test at odds with the “liberal 1168, (1972), S.Ct. reh’g L.Ed.2d 231 de thrust” of the Federal of Evidence Rules nied, 405 U.S. 92 S.Ct. “general approach relaxing their the tradi (1972). Advisory L.Ed.2d Commit ‘opinion’ testimony,” tional barriers to accompanying part, tee Note Rule Frye concluded that “incompatible with the states: Federal Rules of Evidence should not [and] applied Therefore, physician be federal trials.” Id. Thus a practice his own bases requirement apply diagnosis the trial court on information from numer- Frye “general acceptance” test in deter ous sources and of variety, considerable mining admissibility including by patients statements and rela- tives, under the Federal reports Rules of Evidence is no opinions nurses, longer light tenable in Supreme doctors, technicians and hospital other rec- ords, Court’s decision in Daubert the test X rays. Most of are them ad- applied evidence, should not be in federal trials. Ac- missible only but with the Inc., (8th 2. The ap Cir.1996). Daubert factors be relevant F.3d 293 It is self evi- however, dent, course, propriate, assessing types engineer's proffered that an con- expert evidence outside the realm of design hard sci to a clusion as feasible alternative lends example, ence. For this testing court and others have itself to verification controlled or ex- recognized utility testing perimentation, as a factor patient usually whereas a medical assessing reliability proffered expert engi practicably, ethically humanely cannot sub- neering testimony design jected experimentation in alternative cases. under conditions like Telsmith, Inc., (5th Watkins v. physician 121 F.3d 984 Cir. those believed a clinical to have 1997); Industries, Lyle patient's Cummins v. simply verify 93 F.3d 362 caused the disease 1996); Industries, Hennessy Cir. proffered opinion. doctor's Peitzmeier

691 produc- grounded in in the of his disci- expenditure substantial time i.e., methods, pline, body principles, the examining authenticating various ing and postulates expertise; rules of his field physician makes life-and- witnesses. The and whether his is relevant the upon reliance them. death decisions Daubert, Supreme the case. In Court stated validation, expertly performed and His judge assessing proffer that a a cross-examination, must also ought to subject to suf- 703, pay “provides attention to Rule which judicial purposes. fice for expert opinions based otherwise inad- Burrell, v. 505 also United States F.2d See hearsay only are missible to be admitted if (5th Cir.1974); United States v. 904 type reasonably are. the facts or data ‘of a Williams, 1290. 447 at 2d. upon by experts particular relied the field facts, of whether question The opinions forming upon or inferences the opinions in evidence are or not admitted data Daubert, 595, subject.’” at 113 509 U.S. prelimi type reasonably relied is a of a at trial Accordingly, judge S.Ct. the as v. nary one for the court. Bauman Centex gatekeeper duty has a under Rule 703 to (5th Cir.1980); Corp., 611 F.2d 1115 United whether facts and not determine such data Cir.1981), (7th Lawson, 299 States type admitted in evidence of the are custom- denied, 1150, 102 rt. 454 U.S. S.Ct. ce arily upon by experts in the relied field and (1982); 1017, Michael 71 305 H. L.Ed.2d reliance whether such is reasonable. Graham, of Federal Evidence Handbook Therefore, inferred the be (4th Ed.1996). only Although § the 703.1 judicial gatekeeper assessing duties of a 703, appear “facts in Rule an terms or data” expert opinion under Rules 702 and 703 evidence, not in even if not admissi roughly appellate are similar those of an ble, expert’s may also form the basis of an reviewing legal court the combined reasonably upon by experts opinion if relied judge. is factual trial This decisions Graham, at particular p. field. See expert per- judge the trial because the 109-110, Advisory (citing n. Commit 18 specialized applying form similar functions in 703). determining Note to Rule tee knowledge to facts reach conclusion or preliminary question of whether reliance in a case. decision about an issue Conse- reasonable, calling expert party is quently, appellate gatek- court and the court, satisfy must both such witness in re- eeper perform similar functions also facts, type opinions or are of the cus data viewing the work of the trial court and the tomarily upon by experts in the relied field their expert to determine whether conclu- is that such reliance reasonable. See soundly grounded in the sions are correct Corp., Christophersen Allied-Signal, 939 principles knowledge and are based on (5th Cir.1991) (en 1106, 1113-1114 properly reasonably found facts and banc); Bryan Bean Div. v. John FMC data. (5th Cir.1978). Corp. 566 F.2d 544-47 see v. Dow Chemical Co. 868 F.2d But Peteet C. Rule 403 denied, Cir.1989), 1428, 1432 cert. 493 provides Rule that: 328, 107 L.Ed.2d 318 U.S. 110 S.Ct. (in relevant,

(1989) determination, may be ex- making Although the 703 “the evidence substantially opin probative if value is expert’s cluded its trial court should defer danger preju- of unfair they reasonably outweighed find ion of what data reli dice, issues, able.”); also, misleading or See 3 Weinstein’s Evidence confusion ¶ 703-17(1981). jury, of undue considerations 703[03] time, delay, presenta- or needless waste description judge’s trial Daubert’s tion of evidence. cumulative duty gatekeeper under Rule 702 sheds Supreme Court in Daubert admon- light duty capacity on her in this under Rule judge performing gatekeep- her relationship ished between these under 702 should also judge’s duty under Rule duties Rule duties. trial rules, including applicable mindful of other is to whether the is determine proffered opinion Rule 403. 509 U.S. qualified; whether his despite at 2797. The stated that “Rule S.Ct. exclusion its relevance. It is the exclusion of permits designed permit relevant evi the court to“ ‘even probative substantially ‘if value evidence, dence its weight out’ the mitigate outweighed by danger crime, preju of unfair or to make a contest where there issues, dice, of the misleading confusion or none.”(emphasis original) is little or jury...Id. quoted Judge The court “Virtually prejudicial all evidence is or it “ explaining: ‘Expert Weinstein as evidence isn’t prejudice material. The ‘un must be powerful quite misleading can be both ” N.C., Inc., Mfg. fair.’ Long Dollar v. 561 difficulty in evaluating of the it. Be because (5th 613, denied, Cir.1977), F.2d 618 cert. 435 risk, judge in weighing cause of this (1978). 996, 1648, U.S. 98 S.Ct. 56 L.Ed.2d 85 against probative possible prejudice un force Advisory Committee Note on Rule 403 present of the der Rule 403 rules exercises provides prejudice that “[u]nfair within this experts lay over than more control over wit tendency context means an undue suggest to Weinstein, F.R.D., 138 nesses.’ 632.” basis, improper decision on an commonly, 595, 113 509 S.Ct. at 2797. U.S. though not necessarily, an emotional one.” example, may For unfairly preju evidence be admissibility As Rule 403 favors the appeals jury’s dicial because it sympa evidence, of relevant such evidence tois be thies, horror, provokes arouses its sense of only probative if its excluded value is sub punish, its instinct to triggers mainspr stantially outweighed by danger of unfair action, ings may of human jury cause a Davis, prejudice. v. United States 639 F.2d base something its decision on other than the (5th 239, Cir.1981); 244 See 22 Wright & propositions established of the case. 3 Graham, Federal Practice and Procedure: Berger 403-37 to ¶403[03] Weinstein Moreover, § & Rule 403 is an Evidence (citing 403-40 authorities including United extraordinary remedy to be sparingly used Bowers, (5th Cir.1981); States v. 660 F.2d 527 permits it the trial because court to exclude Osum, 1394, United States v. 943 F.2d 1404 E.g., relevant evidence. otherwise United (5th Cir.1991); Kang, United States v. 934 Thevis, (5th 616, 633, 665 F.2d States Cir. (5th 621, Cir.1991)). addition, denied, B), 1008, 102 cert. Unit U.S. S.Ct. may evidence threaten “confusion of the is (1982). 2300, 73 L.Ed.2d There must sues, or misleading jury” when “the danger prejudice, merely be a unfair probability proof answering and the danger prejudice inherent in rele provokes evidence that create a side evidence; probative vant its value must issue unduly that will jury distract the from substantially outweighed danger. McCormick, the main issues.” McCormick As this court stated in United States 185(West § ed.1972); 2d See On Evidence McRae, 700, Cir.), cert (5th Cir.1985). Sharp, Ford v. 758 F.2d 1018 denied, 862, 444 U.S. 100 S.Ct. (1979): L.Ed.2d 83 Background III. Facts Relevant inherently prejudicial; evidence is only prejudice, but it April Moore, substantial- On Bob T. a deliv- unfair ly values, outweighing probative ery which truck driver for Freight- Consolidated permits Inc., exclusion of relevant ways, matter under freight company, motor deliv- Rule 403. Unless trials are to be conduct- shipment ered a оf solvents containing mixed scenarios, ed on on unreal factors tailored Chemical, chemicals to Ashland Inc. Bart occasion, applica- Graves, sanitized for the plant Ashland’s manager was on the tion of Rule 403 must be loading cautious and dock when Moore arrived. When the sparing. major Its function is limited to back opened, door of the trailer chemical excluding matter of scant or gases cumulative escaping leaking were from two drums. probative force, dragged the heels Graves Corning Corporation, notified Dow prejudicial the sake of its effect. As to the manufacturer shipper of the chemical such, solvents, Rule 403 is meant to relax the iron spill of the requested up clean relevance, rule of permit judge the trial instructions. At request, Graves’ Dow Corn- preserve proceedings ing fairness copy faxed him a Safety the Material (“MSDS”) spilled up, disposing of them regarding them in “over- Data Sheet packs” placed leaking to be in the drums. The MSDS notified Graves solvents. chemical chemical contents the nature During up, the clean Moore informed problems associated health solvents recovery pneumo- of his Graves recent chemical mixture’s va- with requested respirator nia and the use pors.3 refused, which Graves access. Graves despite knowledge lack of ventila- Significantly, the MSDS stated also tion in the trailer. Graves failed to chemicals, in- a blend solvents contained measure the amount of contaminants in the toluene, propylene gly- cluding naphtha, and trailer, although he had access to a meter methyl ether. It warned that inhalation col provided purpose. for this Ashland in vapors injury result to of their could job up took an clean between minutes and liver, blood, sys- lungs, kidneys, and nervous cleaning up an or so after hour. Within hour injuries, prevent the MSDS To such tem. dizziness, spill, Moore suffer began to that, spill, respira- of a in the event cautioned difficulty watery eyes, breathing. in tory protection equipment should be worn he When returned Consolidated ventilation, there is or adequate unless his Freightways, supervisor Moore informed specified of contaminants was below a level was sick that he and he was sent level. company day, doctor. The next Moore saw or informed of the Moore was not shown family physician, who treated him two his contents MSDS. placed weeks. then himself three Moore Simi, pulmonary the care of Dr. a under rig tractor Moore’s consisted diesel specialist. prescribed' Dr. Simi medication trailer. and a 28 foot enclosed Ventilation him to for Moore and released work. Moore Moore trailer was limited. told Graves during returned to work June but ter- he wanted to return Consolidated employment his a few later minated weeks employees clean Freightways have other respiratory of his because difficulties. Moore, however, that the Graves told it out. signed subsequently, Moore lading not be until after On June 1990 and bill of would Jenkins, up. pulmo- spill was was seen Daniel a the trailer cleaned telephoned supervisor nary, told environmental and internal medicine Moore his who specialist. seeing After Moore times in comply with Ashland’s demands three Moore June, spill up. July August Dr. Jenkins clean Graves directed regarding air- by placing diagnosed trailer Moore’s condition reactive up Moore to clean (“RADS”). chemicals, sweep- syndrome On ways dysfunction absorbent material on eye, system may aggravate existing Corning MSDS faxed to Graves vous 3. The that Dow stated, skin, part: respiratory disorders. TOLUENE... vous may injure DEFINED Inhalation: PROPYLENE GLYCOL ALIPHATIC drowsiness ISOBUTYLISOBUTYRATE SOLVENT Section III-EFFECTS OF OVEREXPOSURE: Section II-HAZARDOUS centration and system. Degree ^{[******] [******]} IN 29 and blood, NAPHTHA, PETROLEUM, ... Short length irritate CFR liver, vapor exposure may cause of effects 1910.1200 ZA METHYLETHER ... nose and exposure. lungs, ... INGREDIENTS AS kidneys, depends throat. LIGHT Vapors con- ner- pling data show PEL cal exhaust ventilation DURES: NANCE/REPAIR Section Inhalation: Use guidelines. ^{[******] [******]} VIII-SPILL, respiratory exposures AND DISPOSAL PROCE- adequate are within TLV and LEAK, protection or air sam- MAINTE- unless lo- Comments: injure ^[******] blood, liver, Prolonged lungs, kidneys, Toluene overexposure and ner- 29, 1990, Moore was seen Physician November trained. He is either Attending or Alvarez, pulmonary a and internal Consultant Medicine or Pulmonary Antonio Medi- Houston, specialist, treating eight Hospitals who became his cine at medicine Texas. physician. Additionally, Dr. Dr. Alvarez confirmed and Jenkins is a member of national, adopted diagnosis sixteen orga- and treated state and local medical up during president Moore for his disease to and nizations and has served as or time, By trial. chairman of a this Moore’s condition had section for three them. deteriorated, work, he still unable to formulating opinion, his Dr. Jenkins carry he was a container oxygen forced to personally took a history detailed medical at all times. Moore, performed thorough physical a examination, personally observed him three Expert

IV. Moore’s Proffers of times, performed supervised a series of Testimony Clinical Medical including tests on Moore pulmonary function tests, plaintiffs prove test, set out to a challenge Moore’s bronchial a bronchodi- viz., personal test, injury, airways test, his reactive spirometry dis- lator plethysmo- ease, test, proximately graphic determination, caused lung volume test, intrapul gas test, the mixture of chemicals he encountered distribution a diffusion premises. test, test, Ashlаnd’s Moore’s case de- an arterial bloods a mechanics X- pended expert testimony rays, tests, that his laboratory disease and reviewed the med- airways was reactive reports disease and that it had ical records and of Dr. Alvarez and Simi, by exposure been caused his to the chemicals Dr. including report of the bronchial plaintiffs proffered by Ashland. The dilator test Dr. Simi two or three weeks opinions of Dr. and inferences Daniel E. Jen- after the accident that showed severe air- ways kins and Dr. B. Antonio Alvarez report based on obstruction and a of an allergy knowledge clinical performed their medical and facts test Dr. among some Alvarez — particular and data in this ease for reports these fifteen of examinations and tests purposes. allergic him—that ruled out immunologic

disease and airways confirmed reactive dis- A. Dr. Jenkins proper diagnosis ease as the of ill- Moore’s ness, safety reviewed the material data sheet degree Dr. Jenkins received his medical prepared by “MSDS” Corning, Dow and con- University from the of Texas in 1940. He Occupa- treatise, Zenz, sulted medical Carl training University received medical at the of Principles tional Medicine: and Practical intern, Michigan Hospital as resident Application (2d ed.1988) and other medical medicine, resident Tuberculosis and Chest literature. Disease, in Allergy and resident in 1940- 1945. The American Board of proffered Internal Med- In testimony, his Dr. Jenkins icine him in certified 1947. Between explained disease, airways that reactive also and 1947 he served as Instructor and Chief known airways dysfunction as reactive syn- (RADS), Resident in Medicine as Assistant Pro- recognized drome in the field of Physician fessor charge of Medicine and clinical knowledge medical as a disorder con- Unit, the Tuberculosis University and Chest sisting of a reactive pas- obstruction of air of Michigan sageways Medical School. From 1947 to in the bronchial trees and the low- Professor, 1991 he tract, served Assistant Asso- respiratory er producing labored Professor, ciate and Professor of breathing, breath, Medicine at wheezing, shortness of Medicine, Baylor Houston, College of coughing Texas. and the raising phlegm. Dr. Chief, From 1947 to 1974 Pulmonary he was Jenkins’ as to the nature Section, Baylor Disease College of symptoms Medicine. airways reactive disease was Chief, From 1975 to 1991 he was accepted Environ- parties as accurate and other Medicine, Baylor mental College of experts Medicine. on both sides: In history taken practice Jenkins, he went into with Dr. reported Res- Moore that he had piratory Houston, consisting Consultants comparatively good been ‍‌‌‌‌‌‌​‌​‌‌​​​‌​‌​​‌​​‌‌‌‌​‌​​​​‌​‌​​‌​​‌​‌​​‌‌​‍in health until mostly group physicians that he exposure had about one hour after his many ingredients. reading he But a fair began when gases chemical at Ashland deposition clearly as a types symptoms. In his whole indicates that experience these Moore, lawyers and tests of when the Dr. used physical Jenkins examinations symptoms signs they of word “toluene” Dr. Jenkins intended refer observed containing airways disease. Jenkins stated chemical mixture toluene and sim- reactive performed by ply tests objective that the medical called solvent mixture “toluene” for prof- who seen him and several doctors the sake of convenience. that, exposure Moore indicated conclu- fered based on his edu- after his cation, experience, sively malingering. knowledge, training, was not that Moore Moore, personal personal tak- examination his that Moore Jenkins offered ing history, supervision of Moore’s and study airways suffered from reactive disease Moore, of his own tests study review and exposure by Moore’s had been caused opinions, reports, of other doctors’ tests and spill of gases emanating from a blended study of a treatise and medical numerous up which Moore had cleaned with- chemicals articles, medical literature he concluded that out a He testified that manu- respirator. Moore’s to the mixture of chemical safety data stated facturer’s material sheet gases contained in to which the solvent he substances principal contained disease, exposed because any caused that Moore mixture of chemicals breathed irritating properties chemical with can cause toluene, propylene glycol naphtha, were disease, airways reactive and each of the ether, methyl that all of these have chemicals mixture had the solvent irritat- further irritating properties. He stated properties. irritating properties can chemical with airways person cause reactive disease B. Dr. Alvarez in responding way. is that capable who toluene, Dr. Alvarez he was born Dr. also stated one testified that in Jenkins exposed, Moore was is and the chemicals to which Mexico came to the United States in prop- internship residency nature of other 1964 for in similar to the chemical and internal medicine, by years fellowship erties which there have been written followed two airways pulmonary Baylor College articles Dr. in of Medi- on reactive disease. at the that, history based on the cine in Dr. Daniel E. Jenkins Jenkins testified Houston. was by Baylor Dr. given professors that a substantial amount of one of at the Moore Alvarez’s prac- had had College chemical solvent leaked onto of Medicine. Dr. Alvarez mixed two was on gallon the truck-trailer floor from ticed Houston since 1973 and three, courtesy cargo drums was and en active staff of staff of while the enclosed and route, one, hospitals. roughly estimated Moore had Houston area he parts per exposed been to 200 million Alvarez, proffer stage, At the Dr. offered higher vapors. of the chemical Dr. Jenkins opinion clinical medical knowl- his based on informed him that also testified that Moore special- pulmonary edge as an internist and anyone else neither nor had taken Ashland ist, experience having enhanced air mechanical at the samples with devices expo- fifty injured from sixty patients seen exposure. time of Moore’s chemicals, facts and and on the data sure history taken Dr. acknowledged Dr. contained the medical Although Jenkins Jenkins, patient X-rays numerous medical having he seen who and could not recall Jenkins, performed a sinus tests Dr. X- exposed had same chemicals been circumstances, allergy performed by ray, he an or RAST test under same testified allergies tending Dr. Alvarez to rule out as that he examined and evaluated over one illness, physical numerous patients who had the cause hundred other been ex- Moore, and posed examinations observations to chemicals under various circum- and per- deposition, data sheet the manufacturer’s material During stances. Jenkins’ Moore taining to the to which was lawyers and the some- chemicals interrogating doctor education, exposed. knowledge, spillage Applying his times referred to the mixed chemical “toluene,” just training these facts and experience in fact of its as one which admittedly heavily

data, relying on Dr. interview approximately but one and one-half (“Reliance opinion, Dr. Alvarez ex- Jenkins’ work hours. patient on statements to opinion that pressed his Moore suffered from usually justified render medical airways disease that reactive had been trustworthy patients because have a gases inhalation of by his chemical caused strong treating physi incentive to tell their cleaning up spill- the chemical while he was cian the truth —the desire to recover.” In When age at Ashland. asked whether he Agent Orange Liability re Litiga Product heavily on the evaluation and docu- relied tion, (E.D.N.Y.1985); F.Supp. Jenkins, provided from Dr. mentation 495; Rheingold, supra at Ferebee v. Chev addition, replied “very much.” In Alvarez he Co., ron Chemical 736 F.2d history that he had not testified seen (D.C.Cir.1984)(especially when corroborated of Dr. Warren Simi first evaluations hand. records, examination, physical medicаl important Dr. Alvarez was asked how it was tests); and medical See O’Gee v. Dobbs exposure, know the duration of Inc., (2d Houses, Cir.1978); 570 F.2d 1084 present, amount of chemical the dimensions States, Birdsell v. United enclosure, ventilation, of the area or (5th Cir.1965); 488.) 3) Rheingold, supra at temperature: response, Dr. Alvarez Used Diagnosis Etiology: Differential if indicated that such data were available it In his determination of the cause and nature but, very important, explained, he it would be disease, performed Dr. Jenkins or su very doctor, always for a difficult medical pervised a series of tests Moore. He make as to who must decisions causation and studied, compared synthesized the re diagnosis treating patients accidentally ex- sults so possibilities as to eliminate all but substances, posed to chemicals or toxic likely the most diagnosis and cause of the mechanically exact or to obtain measured gamut performed disorder. The of tests very data on these issues because fact tests, Moore pulmonary included function injury always results from an acci- test, challenge bronchial a bronchodilator experiment. and not a controlled dent test, test, an allergy X-rays, laboratory tests. Dr. Jenkins and Dr. Alvarez testified as to C. causation impossible would have been soundly grounded traditional Moore to fake RAD signs objective on the knowledge, principles clinical medical States, tests. See Birdsell v. United 346 methodology. and (5th 775, Cir.1965) (“[T]he F.2d 779-780 Jenkins, specialist a in pulmonary and physician making diagnosis a must necessar disease, environmental based his on ily rely many per observations and tests theories, principles, methodology and tech- by them; formed others and recorded niques, accepted which well are within his records sufficient diagnosis hospi for in the discipline. summary, proffered testi- ought tal enough be for 1) mony of Dr. Jenkins reflects that he: courtroom.”; in the McCullock v. H.B. Full personally: Examined Moore Dr. Jenkins Co., (2nd 1038, er 61 F.3d 1043-1044 Cir. occasions, saw Moore on three between 1995); McNeil-P.P.C., Inc., Benedi v. 66 26, 1, August June and On each occa- 1378, (4th Cir.1995)). 4) F.3d 1384 Re personally pa- the doctor sion observed the tests, reports opinions viewed and of other performed tient. The doctor thorough a doctors: Dr. Jenkins reviewed the records (Personal physical examination of Moore. reports Simi, and of Dr. who had seen always has adequate observation been an shortly Moore after the accident. Dr. Jen expert’s opinion, for an basis and indeed has “ kins testified that Dr. Simi’s records showed been called ‘the most desirable of all bas- ” ¶ even 703[01], 703-7; airways more- severe obstruction re es.’ 3 Weinstein Rhein- sponse to bronchial dilators which gold, Testimony, The Basis Medical indicated 15 n (1962)). 2) 473, there Personally question 489 was not Moore had Vand.L.Rev. history acquired a airways took detailed medical from Moore: reactive disease. Dr. Jen personally history Jenkins took Moore’s kins also stated that he had reviewed the involving allergy performed by his health and the accident in an studies Dr. Alvarez

697 profession, airways disease the literature of the even the reactive that confirmed immu- diagnosis allergic though ruled out an themselves admissible in evi (Reliance dence, nologic properly part as the cause. form a of the basis for disease physicians reports expert’s opinion.” and observations Bauman v. Centex (5th accepted practice 1115, 1120, technicians Corporation, medical 611 F.2d n. 6 by Cir.1980) relied on in medical field and (quoting v. Ford Motor Nanda Co. States, (7th 7) 213, Cir.1974))). Jenkins v. United witnesses. 222 509 F.2d Uti (D.C.Cir.1962)). 5) Reviewed 307 F.2d 637 training experience: lized his During Occupational Safety and MSDS: years practice, of medical his 53 Jenkins Secretary pro- Health Act authorizes experience considerable amount of mulgate safety health and re- standards injuries by occupational caused with inha comply 29 quires employers to with them. Due to the along lants. chemical industries thereto, 654(a)(2), §§ 655. Pursuant U.S.C. Coast, the Gulf inhalant disease victims Standard, 29 the Hazard Communication large part of patients were a seen 1910.1200, requires § that a manu- C.F.R. Pulmonary and Environmental Medicine facturer chemicals inform its of hazardous Baylor that Dr. sections headed at Jenkins employers employees own and downstream Houston, College of Medicine at Texas for a dangers employees posed of the period years. combined of 43 Dr. Jenkins required to The manufacturer is chemicals. had been called to make a determina prepare safety data sheet a material particular tion whether a condition was (MSDS) chemical, includ- each hazardous particular caused chemical on more chemical; identity health haz- (A hundred than one occasions. witness’s precautions. posed; handling See ards long experience may training qualify Co., Cyanamid Martin v. American expert and him to him as an enable assist (6th Cir.1993) Dr. Dr. Alva- 140 Jenkins and jury regarding subjects his train within Coming rez the MSDS that Dow reviewed Chap experience. ing and United States provided with the chemicals to which Moore (5th 1095, Cir.1993); pell, 1100 6 3d. United exposed. type MSDS of fact Hernandez-Palacios, States v. F.2d reasonably upon by relied medical or data (5th Cir.1988); West Wind Africa opinions experts forming or inferences as Line, Corpus Ltd. v. Christi Marine Ser causation. See medical McCullock Co., F.2d vices Cir. Company, H.B. Fuller 1988)). (2d Cir.1995). regulations Because federal require truthfully manufacturers disclose Rulings Trial Court’s V. identity haz MSDS the and health materials, it is in limine to ards reasonable for medi The defendants moved exclude experts rely part cal at least in on the of both Dr. Jenkins and Dr. pre-trial forming diagnostic causal After the in limine hear- MSDS in and Alvarez. testimony court the opinions. ing, also Peteet Dow Chemical the trial admitted See (5th Cir.1989)(“In Co., to that of Dr. diagnosis as and Jenkins determination, diagnosis both and making the trial court Alvarez as to the the this expert’s hearing, At that should to the of what cause of Moore’s disease. defer rehable.”) 6) however, reasonably trial did they apparently Re the not data find respect proper final decision with to the ferred to medical literature on the reach a proffered testimony as ties of that cause RAD: of Dr. Jenkins to irritant chemicals treatise, sketchy trial court’s Dr. Jenkins relied on medical cause of disease. The Occupational Zenz, ruling indicate that a was with- Carl oral remarks Princi Medicine: ples Application (2d presentation further pending the tes- held and Practical deposi- Ed.1988), published timony by explain Dr. Jenkins his a number of articles to and filed in forming plaintiffs affidavit that had medical literature tion and defendants-appellees’ mo- opposition or that the chemicals to which inference during On a date exposed Moore were irritants that tion in limine. later was (“Facts out, trial, jury RAD. found in the while the the caused Moore’s or data break testimony by confusion, attorneys Dr. Jen- had sewn court heard additional seeds how- ultimately ever, to by kins decided exclude his referring frequently and to the whole respect the cause of “toluene,” with to incorrectly sacrificing mixture as gave only very Moore’s disease. The court accuracy Despite brevity. for the sake of ruling. for its brief oral reasons agreement understanding of counsel at pre-trial hearing in limine that Moore hearing pre-trial limine consisted of chemicals, exposed ato mixture of counsel, interspersed with the arguments court continued to labor under confusion. attorneys’ collo- questions court’s bench, suggesting but not quies with the Later, affidavit, focusing defining the reasons for the court’s clearly got the court stated “I don’t know where he Dr. Jenkins’ to exclude inclination that I information. don’t know whether the clearly of disease. The court as to cause discussing chemical irritants he’s tol- include qualified that Dr. Jenkins was concluded I you uene. don’t know whether need to testify diagnosis and could as to his significant have exposure some level of to R. 6 at 27. and treatment of Moore. Vol. thereafter, Shortly toluene.” the court con- that it But the court stated could not deter- hearing cluded as to Dr. Jenkins’ tеsti- probative mine whether Jenkins had mony, limine, stating the motion in “[a]s De- underlying reliable evidence from which to mean, granted fendant’s motion is if—I link infer a causal between the Defendants, believe, I put you have on notice the disease. Id. they explore want to the basis for this. During pre-trial hearing in limine just say generally So that’s —He can’t its court was as to whether Moore confused had blah, blah, accepted, blah....He doesn’t chemical, toluene, exposed single been to a know where that information is derived.... I chemicals, to a mixture of several one of can’t assess it because I haven’t heard what point, which was toluene. At this the court events, it is.” Id. at 30. From this and later apparently understanding did not have a full we conclude that the court was inclined to deposition of Dr. Jenkins’ or the contents of grant defendant-appellees’ part motion the chemical mixture disclosed the manu- ruling permit plaintiffs but withheld its to response In facturer’s MSDS. to the court’s put proffer testimony on additional as to stated, question, plaintiffs’ counsel and defen- opinion. the basis of Dr. Jenkins’ causation dants-appellees’ attorneys tacitly agreed, interruption pretrial Without hear- exposed that Moore was to mixture of ing, proffer the court turned to the of Dr. to, gases, including, chemical but not limited Alvarez diagnosis as both a and causation Also, toluene. Id. at 23-24. one of the immediately witness. The court made clear defendants-appellees’ attorneys told the proffer it did consider the of Dr. court that the chemical mixture contained fatally Alvarez’s causation ether, toluene, “propylene glycol methyl flawed the lack of exact information as to naphtha.”4 at 23. When informed Id. exposure, the duration of the amount plaintiffs’ counsel that Dr. Jenkins stated chemical, identity of the the dimension of the deposition his affidavit in his area, or the ventilation of the area. mixture of re- chemical irritants caused Moore’s disease, sponse airways defendants-appellees’ argument agreed reactive the court contrary, except stating “AVhy the court that was not sure that asked: doesn’t go credibility?” Later, deposition. Dr. Jenkins so in his Id. at 32. stated had, fact, arguments Id. at court impor- 28. Dr. Jenkins said that as to testified “the deposition exposed his that Moore was tance of the go and the like” will weight the mixture of chemicals listed in the Manu- the of Dr. Alverez’s rather During deposition, facturer’s MSDS. admissibility. than to its 37. Still Id. dissenting opinion 4. Footnote number 3 of the attorneys were not confused. experts quotes passage attempt from this in an to show reading A fair of the whole record indicates that that the trial court was nоt confused as to wheth- understanding the trial court vacillated in its of er the chemical mixture contained chemicals the nature of the chemicals involved. excerpt merely other that toluene. This shows to which he was ex- observed, nothing chemical substances later, “there’s court principal in the posed; that chemicals exposure levels that that indicates me before irritating properties were tolu- with mixture link. There’s a causal dispositive of such are ene, propylene methyl naphtha, glycol fac- important an that it’s merely evidence ether; prop- any irritating chemical with that at 38. tor.” Id. airways in a can cause reactive disease erties the trial court hearing arguments, After capable responding of in that subject who is testify as to Dr. Alvarez could that concluded pre- way; airways had a reactive that Moore exposure to the Moore’s opinion that inheritance; disposition that the absence airways dis- his reactive caused chemicals saying that toluene causes the of an article air- ease, that reactive He testified because: many is not determinative because disease to asthmatic closely related ways disease that not cause the disease have substances conditions, exposures, and pneumochemical articles; published yet been addressed groundwork deposition laid like. His to the chemical nature that toluene is similar can be the cause toluene an causing about properties other the disease of made a airways disease. He of reactive published. articles have been which studies, findings, generally assertion of broad of Dr. testimo- At the conclusion Jenkins’ data, like. He had and the accepted medical stated, this ny, court “I don’t think the trial opinions in his of statements a number ... .for a number of rea- meets the 702 test and dis- quite different deposition that were incomplete un- hampered an sons.” Still in- “For from Doctor Jenkins. tinguishable deposition, Dr. derstanding of stance, testing which showed the RAST if there was that “when asked court stated allergic condition which lent an it wasn’t diagnosis of support for a cau- scientific opinion, it was a chemical credibility to an exposure to toluene and reac- sation between things.” at 37- Id. exposure, those sorts disease, litera- airways he had no such tive conclusion, stated, “Doctor the court up such causation or research to back ture testify____I do believe Alvarez can indeed at 154. The R. Vol. 10 determination.” specula- other than a to matters he testified court, misunderstanding Dr. Jenkins’ also it to the link in that he tied tive causal “[tjoday he said testimоny, stated that live cause, allergic et testing that eliminated MSDS, than he relied nothing other Id. at 54. cetera.” chemicals, a number other which listed date, during a recess of a later On that some of these from that stated out, trial, jury the trial court while the air- to lead to reactive chemicals are known plaintiffs present the live testi- permitted disease, that tolu- ways ergo his conclusion support their mony of Jenkins airways Id. disease.” ene leads to reactive cause of expert opinion as to proffer of his Further, again misconstrued the court Previously, the commencement disease. testimony, stating that his testi- Jenkins live MSDS, trial, which the manufacturer’s necessary “his entire mony not because chemicals clearly listed the various upon the testimony is based causation exposed, had been mixture to which Moore MSDS,” which, Id. at 155. “is in evidence.” no. plaintiffs’ as exhibit ruling been introduced Also, had a reason for its gave court Nevertheless, trial objection. scientifically without had no fact that Dr. Jenkins plagued confusion concerning continued to be “the level of exact information involved exposure, nature of the chemicals as to the and duration exposure, amount per- that Dr. Jen- Finally, failure to understand in its remarks exposure.” and its ruling, on the fact the court stat- taining was based Rule 702 kins’ to its acknowledged mix- exposed to the whole Moore had been ed that Jenkins just type of re- with what irritating chemicals and was not familiar ture of he used techniques testified the manufacturer toluene. Dr. Jenkins the chemical search warnings that, articulate the on his exami- opinion, in his based determine again mix- Moore, chemical exposure to the nations, testing dangers history taking, and placed airways the manufacturer MSDS, Moore’s ture that the cause of and the Alternatively, at 156. of MSDS. Id. of the mixture was his inhalation disease 700 fact, facts, legal as to causa- law and Dr. Jenkins’ inferences from the

excluded because “it application Rule 403 would be or the of law to tion under the facts are not prejudicial misleading to have the highly protected by clearly erroneous rule and history Dr. jury accept freely from Jenkins’ are reviewable. United States v. LU- (5th LAC, 636, Cir.1986); that his as to causation is 793 credentials F.2d 642 Car speculation, penters than scientific because Amended & Restated Health Benefit (5th testify Holleman, him 763, that’s what I heard to.” Id. at Fund v. 751 F.2d 767 Cir.1985); Grayson United States v. State (5th Bank, 1070, Cir.1981), 656 F.2d 1075 VI. Standards Of Review denied, 1276, 920, cert. 455 U.S. 102 71 S.Ct. 460; Watkins, Washington L.Ed.2d v. 655 general rule is that the trial (5th 1346, denied, Cir.1981), reh’g F.2d 1353 court has broad discretion the matter of 1116, denied, 949, 662 F.2d cert. 456 102 U.S. evidence, or exclusion admission 2021, 474; Wright S.Ct. 72 L.Ed.2d See 9A & its action is to be sustained unless mani Miller, Federal Practice & Procedure festly v. еrroneous. Salem United States (2d Ed.1995) § at (citing 2589 608 authori Co., 31, 1119, 82 Lines 370 U.S. S.Ct. 8 ties); Davis, supra also See Childress & (1962); Congress Empire 313 & L.Ed.2d (“Because 11-22 abuse of discretion review 658, 645, Spring Edgar, v. 99 Co. U.S. 25 clearly erroneous merge review tend to (1878); Guillory v. L.Ed. 487 Domtar Indus discretionary when the judgment calls over (5th tries, Inc., 1320, Cir.1996); 95 F.3d 1329 decisions, lay unlikely fact it is that the out (5th Moore, v. 997 F.2d 55 United States cases.”) come is much altered most Cir.1993); Morgan, v. 17 Carroll F.3d 787 (5th Cir.1994); Co., McCullock v. H.B. Fuller Analysis VII. Ruling Trial Court’s (2d Cir.1995). However, 1038 61 F.3d we though have held that even the trial court’s A. ruling The trial court’s was based on discretion admit exclude evidence is clearly manifestly numerous erro- broad, generally competent evidence cannot findings neous of facts. acceptable be without a sound and excluded clearly The trial court erred in sev Employment Equal Opportunity reason. preliminary findings concerning eral factual Corp., Commission Manville Sales admissibility Dr. Jenkins’ 1089, Cir.1994); Davidson Oil (1) 104(a), viz., under Rule Dr. Jenkins Klockner, Inc., Country Supply v.Co. allergy did consider the results of the (1990). 1238, 1245 (Dr. performed Alvarez; test Dr. Jenkins

Moreover, Supreme Court has testified that allergy he reviewed the test indicated trial court’s determination results in determining diagnosis his final preliminary questions Moreover, concerning etiology. of facts the test results tended admissibility allergies, of evidence under Rule to rule out confirming thus 104(a) clearly should be reviewed that Moore’s disease Bourjaily erroneous standard. United stemmed from his to the chemical States, 171, 181, mixture.) (2) expressed U.S. S.Ct. Alvarez “a (1987); 97 L.Ed.2d 144 See Childress opinions” number of statements and in his Davis, deposition & distinguishable that were Review, Federal Standards (2d Ed.1992). 11.04, Daubert, § p. Jenkins; 11-22 (Except those of Dr. for Dr. Jen Supreme Bourjaily, Court reaffirmed impressive qualifications cit kins’ more and ex ing stating proof perience, of such facts there was no material difference by preponderance should established of between the knowledge bases of medical un proof. 509 U.S. at 592 n. derlying opinions the doctors’ because (citing Bourjaily, work, S.Ct. at 2796 n. 10 totally 483 U.S. Alvarez relied almost on the 2778-2779). 175-176, 107 Regard analysis opinions S.Ct. at of Dr. Jenkins. The standard, clearly erroneous clearly single attempt this court trial court erred its difference, i.e., point specific and a substantial number of the other courts to a in its appeal questions have held that mixed erroneous statement that Dr. Jenkins had totally knowledge pro- of Dr. was to the considered the results irrelevant not reviewed or test.) (3) posed allergy any Moore or actual the ex- Alvarez’s that of of witnesses, exposed only, pert rather than to including to toluene that of Dr. medical (The chemicals; intro- MSDS mixture Jenkins. beginning at the of the duced into evidence Hence, erred, manifestly the trial court clearly trial listed the mixture of chemicals clearly erred and its discretion abused exposed. Dr. Jen- which had been Moore relying plainly on these facts and erroneous that, according kins’ Dr. Alvarez testified understandings. taken from Moore and the histories MSDS, exposed mixture of Moore was to a B. Erroneous determinations of mixed Moreover, chemicals, merely to toluene. fact, questions legal of law infer- tacitly attorneys expressly sides for both facts, applications ences from the during the agreed to this established fact facts; of law to the of dis- and abuse (4) pre-trial hearing.) at the in limine that determinations, in such infer- cretion hearing Dr. said he proffer second Jenkins applications. ences and (Dr. Jenkins, MSDS; entirely relied on the deposition testimony, in both his live and Rule 702 Under opinion stated he based his on his exami- that applying The trial court erred in Rule 702 nations, reviewing history taking, testing and Dr. exclude Jenkins’ illness, and work on Moore’s doctors’ inhalation of Moore’s the mixture of chemical only partly the MSDS. Dr. testi- Jenkins’s gases airways caused his reactive disease. mony clearly supple- the court was before as illumined requires Rule testimony by mentary proffer of to the his expert’s opinion or inference way in lieu deposition and affidavit and not soundly grounded principles and meth- thereof.) opinion odology discipline. of his or her The Additionally, clearly the trial misun- court grounded of Dr. in the Jenkins well lack of relevance of the fact derstood the principles methodology of his field of candidly acknowledged Dr. that he Jenkins’ clinical medicine. Because Dr. Jenkins did did how the manufacturer assessed not know prin- any technique, not use novel method or product purposes of dangers of its employed only ciple, but the traditional medi- affixing warnings. the MSDS Dr. Jenkins field, knowledge within conclude cal his we testify any knowledge propose did not soundly opinion of Dr. Jenkins was opinion warnings, on the based MSDS grounded experience and principles, much less to base as to cause discipline. of his Jenkins, warnings. disease on the above, trial As we noted most of the opinion, only arriving at his used the MSDS excluding court’s reasons for types as a of information to the source Rule testimony as to cause of disease under chemicals that Moore had inhaled. they were based were invalid because into without MSDS was introduced evidence findings clearly factual the court’s erroneous objection of trial. the commencement relevance misunderstanding and its Moreover, Dr. Alvarez to the MSDS referred clearly record. The facts established during his purpose deposition, for this affida- remaining assigned by reason the trial single proffer any vit without and live i.e., ruling, had cоurt for its that Dr. Jenkins protest defendants-appel- by the court or the scientifically precise no information concern- During lees. the trial Dr. Alvarez and expo- exposure, amount of ing the “level Jones, defendants-appellees’ Robert ex- sure, exposure,” causation, duration reflects pert witness on referred error and abuse of discretion objection trial court’s purpose MSDS for this without of Dr. Jen- applying proffer Rule 702 to the parties. or the There was no the court knowl- on clinical medical kins’ based evidence that Dr. Alvarez or Dr. Jones had statement, course, the trial edge. By this techniques knowledge of the research no formulating not mean that Dr. Jenkins manufacturer did used concerning whatsoever the levels warnings. of such information MSDS absence person principles á goals, that could be harmful to The and exposure airways require permit or clinical medicine susceptible to reactive disease the do or exposure physician the duration of Moore’s clinical to determine hard scien- amount and testing precise From Moore’s tific the amount to the mixture of chemicals. of deleteri- taken, had he had ous substance that an accident victim history that Dr. Jenkins inhaled exposure during before the Moore or the exact duration which he information that health, pound two good that breathed it before the doctor must make begun.leaking diagnosis, had in the as to of the chemicals interrelated decisions drums prognosis pulmonary Moore’s truck at some time be- cause and of a or air- the back of Ashland, Likewise, rig ways physician fore his arrival that Moore’s disease. clinical ethically practicably delay of a diesel and a 28 foot cannot or deci- consisted .tractor trader, discovery that diagnosis-etiology after the sions as to until she con- enclosed upon experiments arrival at Ashland the with leakage ducts humans or animals to in- exposure allowed to continue to leak determine the safe level of for drums were aver- age highly susceptible persons trailer with the doors shut for anoth- or with side the re- supervisor spect previously until the Ashland to substances that er 45 minutes have not them, point Moore to remove that at this been tested or addressed medical litera- told Jenkins, pound light Consequently, drums had become Dr. Al- the 400 ture. varez, Jones, enough to allow Moore and others to roll and even Dr. the defendant- dock, testified, manually appellees’ expert, that scientifically them out onto the Moore exact co-employee exposure, worked in and around the and a information as to “the level of sprinkling exposure, 45 to 60 minutes expo- trailer for about amount of and duration of areas, virtually over the contaminated sure” “Absorbo” never available to a clinical shovels, physician saturated material into sweeping epi- after an inhalation accident or trailer, removing assessing the materials from the sode. of Dr. When the basis Alva- leaking opinion, drums into shoving salvage correctly rez’s the trial court ruled drums, cleanup Moore precise exposure that finished the that the lack of go data will a.m., began to weight Ashland about 11:00 that Moore of his rather than to breath, experience wheezing, admissibility. shortness of its inexpli- Yet the trial court a.m., tightness cably of chest at about 11:45 reversed field and made crucial the symptoms continuing importance precise exposure that as his were data in incor- company rectly arbitrarily excluding worsen Moore consulted the doctor Dr. Jenkins’ put oxygen opinion him who inhalants.5 Ob- on cause of disease. Because of the viously, trial court meant that because no trial court’s allusions to lack of “scientific samples support” speculation” one had taken air or timed and to “scientific when discussing proffer with the mixture of chem- opinion, Moore’s encounter of Dr. Jenkins’ watch, stop misap- icals with a Jenkins did not we infer that the trial court have scientifically precise factors,” exposure plied have informa- the “Daubert hard scientific parts per tion in million appropriate testing proffers terms of and exact methods seconds; evidence, minutes and that because there proffer hard scientific experiments opinion had been no known on humans Jenkins’ based on clinical medical particular knowledge. or animals with the mixture of The trial court’s error in this involved, course, regard, chemicals Dr. Jenkins could not compounded by its precise apply have scientific information as to erratic reasoning failure the same exposure proffer safe or unsafe levels for áver- of Dr. as it had hypersensitive persons respect with age testimony. Accordingly, to Dr. Alvarez’s we airways manifestly of reactive disease. Plain- the risk conclude the trial court erred 7, pp. 1-4. deciding exhibit and abused its discretion in tiffs’ dissenting opinion page simply 5. 710 is fails to heed admonition that "[l]he Daubert's at. stating solely principles that Dr. Jenkins had ... "no focus must be mistaken meth trailer, concerning odology, they gener information” size not on the conclusions spillage, the level or duration ate.” 509 U.S. at 113 S.Ct. at the amount of dissent, court, exposure. like the trial require proponent data doctor’s precise, hard scientific lack of being every Dr. Jenkins’ to introduce evidence test ‍‌‌‌‌‌‌​‌​‌‌​​​‌​‌​​‌​​‌‌‌‌​‌​​​​‌​‌​​‌​​‌​‌​​‌‌​‍prevented principles and meth- soundly grounded reasonably doctor conducted or relied discipline therefore based odology of his scientifically 703 is under Rule reliable-valid. foundation. on a rehable ‘-widespreadacceptance’ While stated be merely judicial a factor determination of Inc., 984, Telsmith, v. 121 F.3d Watkins reliability-validity, testimony by expert Cir.1997) (5th explicitly makes clear that 991 the ‘scientific’ evidence has received Daubert, 702, autho Rule as elucidated ‘general acceptance’ ... should sufficient expert in a realm outside of qualified rizes a support admissibility alone to of ‘scientific’ opinion testify to an or infer hard science opponent presents evidence unless the evi- skill, knowledge, experi ence based on his creating genuine dence issue as to the ence, soundly if it is training, or education reliability-validity of the ‘scientific’ evidence principles methodology grounded ”)(footnotes omitted). .... See also G. Mi- discipline relevant to a fact in of his and is Fenner, chael The Daubert Handbook: The understanding or to an of the evidence. issue Case, Dilemma, Proge- Its Essential And Its Watkins, however, this circuit prior to Even Creighton 939, ny, 29 L. Rev. 968 implicitly at least understood and others had (1996)(“Fenner”). Edward J. Imwinkel- Cf. part of Daubert lore. See United this to be ried, Step Develop- The Next Daubert: Land, v. Acres 80 F.3d 1074 After States 14.38 of Similarly Epistemological Approach A (5th potential Cir.1996)(engineer’s of Reliability Ensuring To floods; appraiser’s opinion of for real estate Of Nonscientif- Expert Testimony, 15 L. ic affected); Hopkins Cardozo Rev. of v. Dow value land (1994). 2271, 2283-94 (9th 1116, 1124-25 Corning Corp., 33 F.3d Cir.1994)(doctors’ opinions of silicone breast medicine, In the field of clinical courts disease); implants’ cause of autoimmune Ber that, Daubert, generally agree under (6th Detroit, 1342, ry City 25 1350 F.3d of diagnosing and data that Cir.1994)(former sheriffs of inade reasonably treating physicians good consider unjustifiable quate police discipline’s cause grounds opinions or inferences in medical force) deadly (“Although ... use of Daubert practice sufficiently are reliable to form the experts, language with scientific its rel dealt expert’s qualified basis of a medical testimo- ‘gatekeeper’ ative to the function of federal ny in court. 3 Weinstein Berger, See & expert testimony judges applicable to all ¶ 703[03],p. 703-24 et Evidence Weinstein’s Id.); Rule 702.” Marcel v. offered under Pub.803); 2 seg.(Rel.47-7/93 Graham, Hand- (5th Co., 563, Placid 11 F.3d 567 Oil § at 79 702.5 book of Federal Evidence Cir.1994)(eeonomist’s opinion of work-life ex (4th ed.1996); Fenner at 1009. pectancy); Murphy, 996 Cf. United States (5th Cir.1993), denied, 94, cert. 98-99 example, this court in Carroll v. Mor- For 457, 971, 389 510 U.S. 114 S.Ct. L.Ed.2d (5th Cir.1994), 787, 790-791 gan, 17 F.3d (1993)(expert’s opinion that tools could have cardiologist’s testimony was concluded that a ignitions marks on stolen cars’ admit made procedures “ground[ed] in the methods ted). “unsupported not mere of science” and was speculation,” citing U.S. Furthermore, as one commentator has rec- despite ac- at 2795 his refusal to 113 S.Ct. simply a non-scientific ognized, because ex- authoritative, single cept, as either a source pert’s touches on evidence that journals or a collection textbooks theoretically could be tested Newtonian toto, because his was based methodology, Daubert should not be science experience practicing, as a “thirty years of permit an interpreted so as to advocate review, cardiologist, on his board-certified put opponent his or her to the burden of plain- things, of among [the deceased reliability-validity establishing hard scientific rec- records and the coroner’s tiffs’] medical Graham, demand. See Handbook (4th ords, 702.5, spectrum published on a broad § at 79 ed. Federal Evidence 1996) (“For example, materials.” it would be ludicrous to 10,000 patients solely gastroenterolo in Benedi v. McNeil- with Circuit The Fourth (4th P.P.C., Inc., 66 F.3d Cir. gy”); Corp., Cantrell v. GAF 1995), experts who Cir.1993)(“Nothing prohibits held ... plaintiffs link between the found a causal testifying witness from to confirmato and a combination of alcohol data, liver failure ry gained through expe his own clinical Tylenol Extra-Strength was reliable al rience, origin on the or the disease epidemiological not use though they did data. consequences to certain condi Instead, history, they plaintiffs relied on the tions”). plaintiff, plaintiffs personal examinations data, pathology peer-reviewed

lab and 2. Under Rule 403 words, experts literature. In other re cléarly The trial court abused its of data the medical commu lied on the kind testimony in excluding discretion of Dr. patients. nity regularly diagnosing in uses only Jenkins under Rule 403. The reason The court stated that would “not declare gave the trial court was' that “it be would methodologies light invalid in of the such highly prejudicial misleading to have the community’s daily use of the medical same jury accept history from Dr. diagnosing patients.” Id. Jenkins’s methodologies opinion credentials that his as to causation is H.B. Circuit McCullock v. The Second speculation, than scientific because (2d 1038, Company, 61 Fuller F.3d 1043 testify what I him that’s heard to.” The trial Cir.1995), hpld proper that the district court expressed clearly court’s reason was not testimony of a ly admitted the medical doctor suggests meanings. several glue link vapors causal between as to the injury, rejecting plaintiffs defendant’s con highly The fact that an witness is the doctor’s was tentions danger credentialed cannot create a “un point single not flawed because he “could to a prejudice. prejudice,” fair” “Unfair as used piece says glue literature that of medical simply in Rule 403 does not exist because the polyps” fumes cause throat and because opposing party. evidence adverse to the “ etiology,’ qualif[y] as [does not] ‘differential Virtually prejudicial all evidence is or it is However, under Daubert.” Id. scientific not danger material. There must be a opinion of the doctor’s included his care basis prejudice “unfair” in order for the discretion plaintiff, and treatment her medical Long Mfg., exclude to arise. Dollar v. history, surgical of her review medical and N.C., Inc., (5th Cir.1977); 561 F.2d 613 Unit studies, reports, pathological review of defen McRae, (5th ed States v. 593 F.2d 700 Cir. MSDS, training expe dant’s his medical 1979). rience, etiology, use of differential and refer “history” The trial court’s reference to was medical ence to scientific and treatises. Id. ambiguous. If the court to Dr. referred “[disputes The court as to the found this, history experience, Jenkins’ own or credentials, strength of his faults in his use course, part was qualifi- of his credentials or etiology as a methodology, differential cation, unfairly prejudicial which could authority opinion, go lack of textual for his for the reason we have If stated. the court weight, admissibility, not the of his testi “ referring history to the medical mony.” “Vigorous Id. at 1044. cross exam Jenkins, equally Moore taken it is ination, evidence, presentation contrary prejudice difficult to see how unfair careful instruction on the burden By admitting could have been caused. appropriate proof are the traditional and diagnosis of Dr. Jenkins as to his shaky attacking but means of admissible evi ” disease, Id., airways of Moore’s reactive the court (citing dence.’ 509 U.S. 2798). 596, also allowed Dr. Jenkins to refer to the histo- 113 S.Ct. See also Becker v. Prods., Inc., ry part diagnostic taken as of the clinical F.Supp. Health 896 100 Nat’l. fact, process. (N.D.N.Y.1995)(admitting expert’s specifically In opin one Dr. Jenkins trial, based, part, years experi objection stated at without before the ion over jury, history physician, expert’s a that he had relied on the he ence as a second based, experience making diagnosis part, on “clinical took of Moore as to Inc., Furthermore, Pregeant Airways, Am. by admit- Pan World condition. Moore’s (5th Cir.1985); to both testimony of Dr. Avarez as F.2d United ting the disease, Underwood, the court and cause of States diagnosis Cir.1979): history to refer to the Dr. Avarez allowed by him by Dr. Jenkins used

and other work record, reviewing Ater we can opinion. for his own as the basis not be sure that the erroneous exclusion of court’s characterization The trial in Jenkins’ сausation did not as to causation as “scientific Jenkins’ fact, jury. fluence the we are convinced essentially repetition of its speculation” very that it slight had more than effect on excluding that under evidence reason jury’s highly likely It is verdict. i.e., for lack of a reliable evidentia- Rule jury’s finding verdict was based court’s exclusion of the ry basis. The trial exposure gases Moore’s to the chemical did under Rule 702 was as unreliable evidence not cause his disease. The exclusion of Dr. abuse of manifestly erroneous and an itself on cause of disease elimi Therefore, it cannot serve as a discretion. plaintiffs’ probative nated the most evidence excluding the evidence under ground for airways that Moore contracted reactive Rule 403. of his disease as the result gases at Fur mixture of chemical Ashland. Affecting Harmful Error VIII. ther, it the Dr. undermined effectiveness of Rights Substantial Avarez, plaintiffs’ qualified lesser 103(a) provides: Rule of Evidence Federal causation, only remaining on who witness ruling. Error “Effect of erroneous analysis relied on Dr. Jenkins’ work and but upon ruling admits or predicated a which explain was unable to the data and the infer right evidence unless a substantial excludes accurately persua ence of causation as Rule indi- party is affected....” This of the Aso, sively. Dr. the exclusion of Jenkins’ appeals courts of should not re- cates that testimony causation a on created mismatch evidentiary the basis of erroneous verse on Jones, Dr. Dr. between Avarez and de right” is rulings party’s a “substantial unless articulate, qualified, fo fendant’s more Algee, v. 924 F.2d affected. Munn rensieally experienced ex “board certified” (5th Cir.1991). witness; pert causation Dr. Jones did not interpreted examine Moore but the medical Having that Dr. Jenkins’ determined by compiled records and data Dr. Jenkins Injury testimony the cause of Moore’s as to that did not have RADS or indicate Moore excluded, must improperly was we address any disease caused his inhalation of affected Moore’s “sub whether the exclusion Moreover, because Dr. gases at Ashland. v. Manville Sales rights”. stantial EEOC plaintiffs testify was called Jenkins (5th Cir.1994). 1089, 1094 Corp., 27 F.3d diagnosis as to of Moore’s his evaluation susceptible to mechanical question This is not it, was not asked what caused condition but at analysis. Algee, Munn v. jury possibility there that the substantial Berger, M. 573(quoting 1 J. Weinstein & Dr. would concluded that Jenkins’ ¶ Evidence 103-6 103[01] Weinstein’s plaintiffs unfavorable to the on have been (1990))(“Rule 103 is silent as to what factors subject. that determining consider in wheth a court must affected, on cross Dr. Avarez was forced to admit rights er have been indi substantial heavily that he relied cating proceed that the court must on a ease examination teacher, Jenkins, Dr. his former apply rather than a mechanical work of to ease basis rule.”) however, history, repeatedly, especially earlier ex- have stated medical We sure, Dr. Ava- testing of Moore. an error is harmless if the court is aminations and that record, explain, as Dr. Jenkins had reviewing rez unable to after the entire was his, testimony, early mistak- jury or excluded error did not influence the had but type history as to the v. en notes the medical very slight effect on its verdict. E.E.O.C. (5th 1089, 1095 were later corrected and Corp., 27 of toluene involved Manville F.3d Sales 573; analysis. Cir.1994); causation Algee, did not affect the doctors’ Munn v. F.2d case, knowledge, prin- explanation of the rested their Jenkins’ plaintiffs’ After the testimony only ciples, methodology, reasoning underly- presented defendants effectively contradicted Dr. significantly his causation was Dr. Jones who causation. The de- Alvarez’s more lucid and articulate than that of advantage of the attorney took full fendants’ Alvarez. of Dr. Jenkins’ causation erroneous exclusion dissenting opin The cases relied on only out that Dr. Alvarez testimony, pointed distinguishable ion are as instances which RADS resulted that Moore’s had testified expert testimony truly cu the excluded inhalation, Dr. Alvarez his chemical interchangeable with mulative because was like Jones and not “board certified” to that of the and not foundational or seminal Jenkins, argued that Dr. Alvarez had experts whose was admitted. See history medical accepted Dr. Jenkins’ Gas, Homco, Ltd., Inc. Kendra Oil & independently evaluating without diagnosis (7th Cir.1989)(eourt F.2d stated verdict, jury In its Moore’s condition. “gaggle” experts had been allowed asking wheth- question “No” to answered testify to same such that the the exact issue any, if of the defendants negligence, er the of the defendants’ three exclusion one injury. Moore’s proximately caused error); experts was harmless Collins defendants-appellees and the dissent The Wayne Corp., 621 782-83 Cir. of Dr. argue exclusion ing opinion 1980)(the already plaintiffs had been allowed testimony was harmless causation evidence, place through into two other cumulative to that of Dr. it was because witnesses, points they sought prove by argument is without merit. Alvarez. putting expert’s deposition the defendant’s disease and causation about testimony into so that the exclusion evidence original history has done the who a doctor expert’s deposition was harmless er examinations, testing, diagnosis and taking, ror); Co., Miley Drilling v. Delta Marine cannot be cumulative to patient etiology of Cir.1973)(appellant treating physician who subsequent that of experts testify was two at trial to allowed original relies оn the essentially adopts and the same issue such the exclusion work, analysis opinions. To so doctor’s error). present In third was harmless arguing be as untenable as contend would testimony heavily case Dr. Alvarez’s was de testimony by the author of a medical pendent upon fungible and not with that of any merely cumulative to that of treatise Moreover, Dr. Jenkins. the erroneous exclu explain the text. to read and qualified one testimony sion Dr. of Jenkins’ caused addi only expert witness who was Dr. Jenkins case, prejudicial plaintiffs’ tional effects to thorough, comprehensive clinical had made confusing undermining such as Dr. Alva Moore; his work was of evaluation medical testimony, mismatching rez’s Dr. Alvarez opinion for the foundation essential Jones, against possibly creating Dr. witnesses. See testimony of the Jenkins, impression false that Dr. the more States, v. United Johnson qualified experienced plaintiffs’ of ex (11th Cir.1986)(wrongly expert’s excluded perts, support not did Alvarez’s causation comprehensive than that testimony more was testimony. was, admitted “and there experts of other say with conviction that Because we cannot non-cumulative.”); fore, partially See least testimony the erroneous exclusion of the of Graham, Federal Wright & also Prac of of Jenkins on the issue cause disease § 5220 Procedure tice & jury slight or had but a did not influence the (1978)(“[T]he to be asked is whether question verdict, we conclude that the effect its full that one side is so no the evidence plaintiffs’ rights were affected substantial likely to rejected it would be

jury that was not harmless. and that the error of the introduction mind because change its evidence.”). Dr. Jenkins’ proffered of the Arguments Inapposite IX. Refutation Of impressive more and his qualifications were defendants-ap- argument by the the The and more extensive experience was broader Moreover, dissenting opinion that pellees and the Id. than that of Dr. Alvarez. methodology discipline-of as to clini- clinical medi- proffer of Dr. Jenkins’s proffer cine. When the of Dr. knowledge should be assessed for Jenkins’ testi- cal medical mony based on according ground- knowledge whether it is clinical medical reliability above, exposure properly analyzed,, as we dosage or level have shown in hard scientific ed First, soundly it is evident that his begs question. methodology grounded discipline in his that this case clinical medi- assumes without demonstration scientific, cine, evidentiarily proffer of hard not clini- reliable and should involves a , Next, medical, from that un- have been admitted. cal evidence. assumption, proffer it infers that proven erroneously The trial court failed assess reliability for as hard scienti- must be tested opinion by Dr. Jenkins cause of disease ref- by the hard scientific methods fic evidence principles erence to the methodology Daubert, also known as the set forth discipline of clinical medicine. The trial Finally, it “Daubert factors”. concludes opinion, court assumed that Dr. Jenkins’ is unreliable proffered evidence because evidentiarily order to be Rule reliable under by use of the hard scienti- it was not attained Daubert, 702 and must have been attained methodology. fic methods, samples hard scientific such as air comparing parts the ratio of contaminated misapplication argument relies on a per dosage million with safe the Su- the Daubert factors. epidemiological level standards derived from prof- preme clearly indicated that the Court experimentation studies or with animals. expert’s fer must be tested opinion, exposure' Dr. Jenkins’ that Moore’s reliability by ‘determining evidentiary to the mixture of chemicals caused his dis- soundly expert’s opinion is whether ease, was derived clinical medical methods grounded principles and not use of hard scientific methods. discipline. proffered expert’s of. Therefore, mistakenly the trial court conclud- methods, scientific court derived hard ed that Dr. was not reliable factors,” “Daubert from the meth- now called because it was not attained use odology discipline science. hard .scientific hard methods. judges The court trial to use these advised or factors in deter- hard scientific methods Inexplicably, the trial ‘court did test the mining proffers whether as to reliability' of Dr. Alvarez’s cause of disease knowledge grounded are well hard opinion, which used the basis to identical scientific methodology. in hard The Daubert conclusion, by reach the identical whether or scientific plainly require did not intend to trial not he used such hard scientific methods. methods to test judges to use hard scientific Instead, that Dr. Alvarez’s use- the court said reliability proffers sphere of outside the methodology of clinical medical instead The scientific hard science. hard methods methods, pre- scientific his lack of hard and generally inappropriate determining are for exposure cise information as to levels and soundly expert’s opinion whether standards, merely weight go would to the principles methodology in grounded and testimony. his The trial court acted -arbi- discipline Only a of the of clinical medicine. trarily judg- and abused its discretion comparison disciplines of the brief hard testimony proffered clini- medicine is needed to see science and clinical principles methodology and cal -medical as they quite have different and disharmo- testimony. did Dr. Alvarez’s goals, methodology. principles nious and See argument dissenting opinion The of the infra., pp. 688-90. defendants-appellees’ brief follows and the proffer path court’s present

The at issue in the case is the same erroneous as the trial support of their expert’s reasoning. Consequently, that of an based on clini- they point only inapposite knowledge. Consequently, arguments cal medical under prof- involving primarily proffers of ex- explained Rule cases evidentiary reliability perts’ testimony professed based on hard fer must be tested for knowledge surrepti- determining expert’s whether the scientific relative diseases; soundly grounded principles tious causation of insidious case many pertinent Because of its dissimilarities the Allen entirely the disregard they help or even to understand does not control' of ex- approving the introduction decisions present case. Allen was or to decide episodic to the causation of opinions as perts’ case, in purely a scientific evidence which injuries and disorders based traumatic proffer scientific hard clinical medical well established soundly princi- grounded was not scientific examination, physician’s clinical such as the ples methodology, in which there was history diagnosis, and testing, differential was ever actu- no evidence that the deceased or victim. taking patient ally exposed to the substance that his widow primarily on dissenting opinion relies The alleged caused his brain can- and child Corp., Engineering Allen Penn. Also, experts never examined the cer. Cir.1996), per ease is not but that death, before or after his there was deceased markedly it is distin because here suasive history, of his there was no evidence medical present case. Allen was guishable from symp- that he had relevant no indication liability against the manufac suit products life, apparently signs during toms or by the ethylene oxide sterilizers turer of body or performed no tests were ever on his hospital maintenance Thus, and child proffer widow the case involved a brain. of brain cancer after 20 died testimony, worker who not clinical medical hard scientific occasionally job which he years testimony, on the and it had not been shown reliably containing proffered the sterilizers. scientific evidence was cylinders replaced principles method- grounded in scientific proffered expert scientific tes plaintiffs The ology. link is a causal between timony that there ethylene expo oxide cancer human-brain present purely a clinical medi- case is experts based their plaintiffs’ sure. plaintiff gave A histo- cal evidenсe case. live developed with hard evidence opinions on ries to doctors and testified without contra- viz., methods, epidemiological stud scientific until good diction that he was health he studies, biology, cell and health ies, animal exposed gases of chemical to a mixture re conclusions. The defendants organization in and around an enclosed 28 foot trailer for reputable epidemio numerous sponded with hour; approximately and that within an one indicating there is not a corre logical studies developed cough- severe hour thereafter he ethylene exposure oxide between the lation ing, wheezing tightness of the chest. human brain. The trial and cancer of the in which there was no Unlike the Allen case experts plaintiffs’ to be un court found the dangerous sub- evidence their qualified and also excluded stance, a mixture the fact that Moore inhaled grounding. scientific for lack sufficient gases escaping leaking drums of toxic affirmed, appeals holding that This court of disputed approximately one hour was not under Rule 702 the scientific data relied instant case. The doctors who exam- scientifically experts did not furnish a ined, from him tested and took histories conclusions, their due to the

valid basis for signs symptoms that he con- found evidence, the unre paucity-of epidemiological airways sistent with reactive disease. The studies, liability of animal and the inconclu opinions plaintiff doctors arrived at biology. of cell Id. at 198. In ex siveness airways from reactive disease suffered pressing opinion an an on issue not reached exposure of caused his to the mixture court, by the trial this court stated that the soundly opinions chemicals. Their were was also excludable under Rule 703 evidence grounded discipline in their of clinical medi- case, this there is no direct because “[i]n respond not with cine. The defendants did exposure the level of Allen’s evidence of scientific evidence but with [experts’] opinion principally who, EtO. The relies physician clinical without ever a third extrap on any on the affidavit of a coworker and examining plaintiff developing or concerning handling data, EtO at the hos reinterpreted olations the facts and data new arrive developed by based on conditions the first two doctors to pital where Allen worked contrary opinion. at a hospitals in the 1970’s.” Id. at 198. disease, coronary artery previous heart opinion strays farther afield at- dissenting The tack, count, Wright high pressure, In on Willamette blood cholesterol its reliance (8th Cir.1996). dustries, Inc., smoking, who and continued suffered another Eighth Circuit's decision was based using patch The heart attack after a nicotine proxi largely negligence on Arkansas days, products brought liability three a action panel The divided held mate cause law. against patch. the manufacturer of the The plant family lived near the defendant’s a who appeal summary court of judg- affirmed a particles were treated with at which wood ment trial based court’s conclusion formaldehyde not for their could recover plaintiffs expert’s “opinion that the scientific afflictions, such as head claims of minor concerning patch the role of the nicotine throats, aches, watery eyes, running sore attack,” Rosen’s heart was inadmissible. Id. noses, dizziness, breath, shortness of be at 318. The Seventh Circuit affirmed be- they produce cause failed to evidence supplied cause the “scientific evidence” exposed they were to a hazardous level “nothing but a offering bottom line” “neither formaldehyde emanating from the fibers a theoretical reason to wearing believe that a passage plant. part from the of the first patch nicotine days, removing for three or Wright dissenting opinion which the days, precipitate after three could a heart admissibility quotes pertain does attack, statistical, any experimental, or or minimum of evidence but standards other scientific data from such á which causal proof proximate cause. Id. at 1107. might might relation be inferred which Also, dissenting opinion omits the re hypothesis cause to test a founded on theo- passage, of that which reads: “We mainder ry.” expert Id. at 318-319. The scientific mathematically precise require do not a table Fozzard, distinguished was Dr. “a cardiolo- levels of equating levels with department gist University head at the harm, there must be evidence from which but Chicago.” Id. at 318. His person a reasonable could conclude that however, proffered, as hard “scientific evi- probably emission has caused defendant’s dence,” not as clinical medical evidence. Id. particular plaintiff of harm of which the kind appeal opinion at 318. The court of is devoid complains before there can be a he or she indication that the scientific stated, recovery.” Eighth Id. The Circuit seen, examined, had ever tested or taken a however, trial court should have history plaintiff. Consequently, from the testimony, as “excluded Dr. Peretti’s Willam solely proffer Rosen decision deals with the do, it was not requested ette it to because testimony insufficiently hard scientific knowledge.” Id. at 1108 based on scientific methodology grounded scientific and not 702). (iciting Rule This certain Daubert and proffer of clinical medical purported ly indicates that Dr. Peretti soundly grounded principles and meth- present testimony. opin hard scientific odology discipline, present of that as in the ion not state what kind of doctor Peretti does case. was or what he said his Finally, defendants-appellees contend based. Two other doctors mentioned practice jury instructions that Texas state Fowler, Wright were Fred industrial controlling plain- case this Valentine, phar hygienist, and Dr. Jimmie argument their that Dr. Jenkins’ tiffs waived macologist. There is no indication that Per testimony was not cumulative. We have con- physician etti was a clinical or that he based arguments sidered the and find them be on the of clinical clearly disposi- without merit. view of our medicine. case, parties’ reach tion of this we do not The decision relied Seventh Circuit cross-appeals relative to costs of court as- by dissenting opinion, Rosen v. Ciba- sessed the trial court. (7th Cir.1996), Geigy Corp., 316 78 F.3d clearly also a scientific case that is evidence X. CONCLUSION distinguishable present from the case involv judgment assigned, For the reasons ing proffer opinion. clinical medical year history of the district court is REVERSED and A 60 old smoker with a is, expert opinion fur- The at issue here to that court for REMANDED ease is course, of Dr. on the in with this Jenkins accordance proceedings ther expo- causal connection between Mr. Moore’s opinion. asthmatic-type con- sure to chemicals and his DAVIS, dition, Dr. Judge, well-qualified Circuit RAD. Jenkins is a W. EUGENE in physician specializing internal medicine dissenting: pulmonary disease. Mr. Moore was re- attorney I. ferred to Dr. Jenkins his for and evaluation. Dr. Jenkins examination majority’s disagree with the thoroughly I occasions, saw Mr. Moore on three took a in the district court erred conclusion him, him, history gave examined opinion that Mr. excluding Dr. Jenkins’ him a number of tests. (“RAD”) airway was disease reactive Moore’s exposure to Toluene solu- triggered testify permit The court did Jenkins facility. at tion Ashland’s concerning his contact with Mr. Moore and give diagnosis prognosis for Mr. we must decide is whether question The However, recovery. Moore’s the district perform- in was overzealous court the district permit court Dr. Jenkins to testi- declined Supreme role the “gatekeeper” Court ing the fy concerning the cause of Mr. Moore’s con- only to it Daubert1 admit assigned declining to allow Dr. dition. Before Jenkins opinions that are “reliable.” Daubert expert give on the causal connection must be “sci- explains that exposure Mr. between chemical entific,” “knowl- is based scientific condition, Moore’s the district court allowed “grounded that is the methods and edge” proffer Mr. Moore to Dr. Jenkins’ live testi- science,”2 procedures and that assists the mоny. The district court also considered by having a of fact “valid scientific trier deposition, which had been submit- pertinent inquiry.” connection to Id. support ted earlier in of an in limine motion 2795-2796; 590-92, 113 S.Ct. see also G. testimony. to exclude his Fenner, The Daubert Handbook: Michael Dilemma, Case, its Essential and its My review of the record leads me to con- (1996). L.R. At Progeny, Creighton fully justi- clude the district court was bottom, charged court the district with excluding testimony. fied The district making an assessment of whether the rea- excluding part Dr. court’s reasons for Jen- by Dr. soning and used Jenkins adequately spelled kins’ out were scientifically valid and whether that rea- R. the record. at 10.154-56. The district properly applied to facts at soning hand. court found that Dr. had no informa- Jenkins evidentiary pro- concerning tion of Mr. questions, As in other the level or duration satisfy ponent expert testimony exposure must to the chemicals. This Moore’s fully judge by preponderance finding supported the trial the record. Dr. evidence that the Daubert conditions have Jenkins himself admitted he did spill Burlington met. R. know the size of the trailer where the been Claar Northern (9th Cir.1994). Co., spill. We review occurred the extent preliminary findings factual of the district district court was entitled to conclude from necessary determining admissibility for this that Dr. Jenkins’ estimate that the air Bourjaily parts per for clear error. mil- See v. United the trailer contained over States, 171, 175, 2775, spilled nothing 483 U.S. 107 S.Ct. lion of the chemicals was (1987). Furthermore, speculation. 97 L.Ed.2d 144 We reverse a more than at his evidentiary pretrial ruling only deposition district court’s and at the motion in li- mine, point manifest to one abuse of discretion. Allen v. Penn- Jenkins could not sylvania Eng’g. Corp., piece of or research link- 102 F.3d 194 scientific literature Cir.1996). spilled chemicals ‍‌‌‌‌‌‌​‌​‌‌​​​‌​‌​​‌​​‌‌‌‌​‌​​​​‌​‌​​‌​​‌​‌​​‌‌​‍and 589-90, 2794-2795. L.Ed.2d 469 2. 509 U.S. at 113 S.Ct. at 509 U.S. 113 S.Ct. (1993).

7H absolutely no rests on a 196. There were scientific majority’s conclusion RAD. The not studies on a link between human brain can- premises that will withstand number (cid:127) exposure. I below. Id. at 197. In scrutiny, of which consider cer and EtO ex- each

cluding proffered expert testimony, emphatically that court stated II. goal previ- of Daubert and this court’s

A. bring rigorous ous eases has been more majority begins with the remarkable study expression legal into the scientific clinical medicine is not “hard” premise that opinions in court offered scientific and science; opinion that an ergo, physician’s a professionals. In medical the absence of exposure to by patient’s caused illness was scientifically reasoning, methodology valid - expert is not a “scientific” a toxic substance supporting experts’ and evidence these majority to conclude opinion. This leads opinions, properly the district court exclud- teaching inapplicable is that Daubert’s ed them. presented to the trial court: Whether issue added). (emphasis Id. at 198 testimony. We need to admit Inc., Pfizer, In v. 31 F.3d 340 Wheat Daubert to demon- go no further than itself Cir.1994), plaintiff sought to offer the In fallacy this conclusion. Dau- strate the testimony support of a doctor to his claim bert, Supreme considered whether Court drug plaintiff’s Feldene caused the testimony rejecting erred in the district court hepatitis. admissibility While the of the ex- proffered by plaintiff to establish causal testimony pert’s was rendered moot plaintiffs exposure to between the connection court’s resolution of the case on other drug and birth defects. The Bendictin passing “in grounds, the court noted testimony, subject matter of these witnesses’ testimony would not have sur- [the doctor’s] causation, obviously considered medical of Daubert v. Merrell Dow vived test by the Court: It was the factual “scientific” (citation Pharmaceuticals, Inc.” Id. at 343 predicate guidelines for evalu- to the Court’s omitted). The court continued: expert testimony. to admit ating whether hearing prof- At the held to evaluate his witnesses in-Daubert Although the tendered testimony, George hypothesized fered physicians, the focus of the decision

were not that the combination of Feldene and Chlor- testimony. subject matter of the plaintiff’s] [the zoxazone have caused suggest guide- not that its The Court does however, admitted, hepatitis. that no He if apply lines the bearer of the would study drugs effects of the combined phy- on medical causation had been a done, hypothe- had ever been and thus his biologist sician rather than a or chemist. empirical foundation. Nei- sis lacked proposi- If is needed for the reinforcement subjected peer it been review ther had phy- tion causation that medical publication, which Daubert also identi- testimony, can is indeed “scientific” sicians key. fies as post-Daubert be found our decisions and (citation omitted). Id. at 343 addressing all of the the issue from decisions Finally, Morgan, 17 F.3d 787 Carroll circuits. sister (5th Cir.1994), majority, a case cited Pennsylvania Eng’g. Corp., Allen whether the district court we considered (5th Cir.1996), this held that F.3d 194 Court allowing a cardiolo- abused its discretion testimony regarding exposure to expert opinion on the cause of the gist give chemicals and medical causation of cancer recognized, that plaintiffs The court death. scientifically proffered was not valid. The analysis. Id. at 789- Daubert controlled the epide- human experts’ consisted of miological suggesting a link be- evidence (EtO) agreement circuits are ethylene tween oxide Our sister cancer, by physicians risk scientific stud- medical causation increased of brain rаts, testimony. Hol “scientific” ies conducted on and the fact EtO indeed Inc., Co., Lykes Bros. mutagen genotoxin. Id. at brook v. S.S. is known as 712 Cir.1996) “application that of the (3d (testimony plaintiffs the Tenth Circuit

777 factors is unwarranted cases diagnosis and causes of Daubert on treating physician solely expert testimony as scien is based on subject to Daubert where cancer plaintiffs Enter., evidence); training.” (quoting 100 Id. at 989 experience v. Star Cavallo tific (10th Cir.1996) (doctors’ Subaru, (4th opinions on v. 82 F.3d 1513 Cir. Compton 1150 F.3d 1996)). excluded properly plaintiffs’ diseases cause scientifically being reli as not

under Daubert Co., Inc., able); Thompson Med. v. Glaser B. Cir.1994) (6th (physician’s testimo F.3d injuries properly plaintiffs ny as to cause of majority next concludes that we owe The scientific basis un because of valid admitted court’s evidentia- no deference to the district Daubert); Chicago Hose v. Northwestern der ry ruling. This is based on determination (8th Cir.1995) Co., 70 F.3d 968 Transp. clearly conclusion that the district court expo plaintiffs expert (physician’s or was confused in its determination erred causing to toxic fumes dust sure spilled from precisely what chemicals were factors); subject to Daubert Joiner disease by Mr. Moore. The the drum and inhaled Cir.1996), (11th Co., F.3d 524 Elec. General justify this conclusion. record does not -U.S.-, 117 S.Ct. granted, rt. ce (1997) (“MSDS”) (plaintiffs Safety ex 137 L.Ed.2d The Material Data Sheet lung opinions plaintiff on cause of cancer perts’ by the and was was introduced knowledge”); Raynor v. documentary in the deemed “scientific central item of evidence (D.C.Cir. Inc., chemical, Pharm. listed each Merrell case. This document 1997) (doctor’s testimony regarding Toluene, cause of including up the contents made factors); by Daubert governed gave special warn- birth defects of the drum. MSDS (7th States, Toluene, early 998 F.2d 418 exposure v. United Cella about Cir.1993) (case but before Daubert litigation decided Mr. Moore focused on Toluene. expert medical recognizing pleadings This is clear from the of both epidemiologi “an parties pretrial depositions and should have “scientific” as well as the foundation”). Alvarez, cal or scientific Drs. both of whom had Jenkins copies been furnished with MSDS. cases, sum, along post-Daubert all In our specifically Because the MSDS warned about circuits, consistently with those of our sister physicians to Toluene and the fo- physician’s recognize that the admission Toluene, cused on counsel then concentrated governed testimony on medical causation Toluene, physicians the chemical announcing thus requirements, Daubert’s thought important. Following depo- was and clear that such in a voice that is loud trial, just physicians sition and before expert testimony “scientific” testi- is indeed expand designed affidavits their submitted majority single cited a mony. The has not say they testimony to relied on appellate support its conten- federal case mix rather entire of chemicals drum physician’s tion that a on medical agent. the causative than Toluene alone as expert not considered “scientific” causation is testimony. majority’s numerous references to the whether Moore accepts majority’s trial court as confused as to

If somehow one exposed single to a chemical or to a had been view that Jenkins’ chemicals; lacking full testimony, is mixture of under- “scientific” “hard” standing Daubert. of both nonetheless controlled Wat drum; Telsmith, Cir.1997), leaking 121 F.3d 984 the chemical contents kins analy “laboring] sup- are not that the Daubert under confusion” this Court concluded Ex- expert testimony ported by a fair review of the record. applied proffered sis record, expe cerpts reproduced from the engineer, training on his based below, trial rience, design conveyor. footnote demonstrate regarding the fully the chemicals to rejected holding judge aware of expressly We exposed at Ashland’s today’s position of which Mr. Moore was majority in -case and the not-justify exposure alleged Allen’s simply does harmful facility.3 The record give ground affirming refusal the deference chemical. As one for the the majority’s excluding rejection the evidence. the trial court in district court’s of this causation due tes-

timony, the court stated: “Scientific knowl-. C. edge of the harmful level to a chemical, plus knowledge plaintiff excluding independent basis for As exposed quantities, to such are minimal facts evidence, court was entitled to the district necessary plaintiffs to sustain the burden in expert’s opinion was not conclude a toxic tort case.” Id. at 199. to the facts at hand. The record relevant does not establish either level approval Wright The Allen court cited with Mr. Moore or the chemicals that breathed Industries, Willamette F.3d 1105 required to cause RAD. level Cir.1996). case, plaintiffs In that lived a Allen, short distance from the plaintiff defendant’s fibre- 102 F.3d at manufacturing plant. sought board testimony can- Plaintiffs that his brain offered injuries employment- damages they argued for triggered been were cer had cylinders containing breathing formaldehyde caused airborne contact with related ethylene paucity There was a of evi- and other harmful chemicals oxide. emitted plant. relating the extent and The court reversed the dence district level conference, pretrial During held three on the motion in limine to exclude the final Dr. Jenkins’ trial, days following exchange before oc- testimony: curred: BY MR. GREEN: only COURT: Isn’t that the chemical at Q THE right. you All After looked at the MSDS though? issue upon testing, sheet that was based took the histo- Honor, No, MR. BLACK: No. Your test, ry, you performed you did the examina- THE COURT: What chemical— you tion. Did come to a conclusion as to the record) (Talking off the airways cause of Mr. reactive disease? Moore's product naphtha, BANOWSKY: The MR. [by Jenkins] A Dr. Yes. naphtha, propylene I could some recall— Q And was that conclusion? what ethers, toluene, naphtha. glycol methyl Well, A I feel it Was the chemical substances to your premised But is THE COURT: toluene, loss on—is exposed. which he was There are several' of what is it? them. .. MR. BLACK: Toluene. right. Q All what was And that? premised THE COURT: Toluene. The loss is Well, toluene, naphtha, propylene glycol A me- toluene, it? isn’t thyl principal ether I think were the ones that Honor, generically MR. DAVIS: Your it’s re- irritating properties. had throughout litigation; ferred to as toluene this however, at 10.132. R. every- what this chemical is what Carpenter, body THE COURT: ... Mr. while Dr. knows in case from the MSDS is that it this that, Green, Coming looking you release coated which is a is Dow 125-35 is Mr. would Jenkins component mixture of various chemicals. It is a listen to this and tell me if this is the correct chemical— you rendition of the chemicals asked Jenkins Okay. stop you. THE COURT: Let me Naphtha about? else? what —And coating MR. DAVIS:—release used. toluene, methyl Naphtha, ethyl MR. GREEN: saying THE COURT: You’re that whatever ether, glycol I believe. MSDS as chemical is listed Chemical Dow at 10.135-36. R. toluene is what’s at issue here. frpm judge’s trial We can tell reasons are at issue MR. DAVIS: No. All the chemicals testimony excluding not she Dr..Jenkins coating because it's-the entire—this release here forgotten the MSDS or substance” it de- /'the n coaling spilled ' is what in the truck. The release scribed: toluene, up naphtha, petroleum dysto- made least, why, but I don't know if his Last propylene glycol methylene. [sic] late upon causation based entire MSDS, try- right. THE COURT: All That's what I’m necessary that his would be the rec- to determine. There is evidence in and the since the MSDS is in evidence MSDS ord that these other chemicals were involved in that under certain circumstances this recites all the release? That's I want know. nose, substance be-.irritant to throat MR. DAVIS: Yes. -“blood, liver, vapors may injure, quote, on, Okay. right. THE COURT: All Go Mr. kidney, system depending lungs, and nervous Black. degree effects of concentra- R. at 6.23-24. length exposure.” following excerpts tion two are of given hearing jury’s presence at a R. at 10.155. outside of the purpose skepticism. The generality with allowing expert opinion testi- ruling court’s speculation, such Daubert was exclude complaints were re- plaintiffs’ mony that connection, primarily temporal on a based plant’s exposure to the emis- to their lated vаlidity. lacking any scientific in a suit to explained that sions. action: damages in a tort recover nothing that he knew Dr. Jenkins admitted enough plaintiff to for a not MSDS, It is therefore prepared the what tests who about agent some- chemical that a certain them, show support or the conducted were that he or kind of harm causes the times Toluene. No warning label on the drum of minimum, we At a complaining of. she is support was laid to scientific foundation be evidence from there must think that warning general this could serve notion that that the can conclude which the factfinder concluding exposure that basis for as the agent that exposed to levels of plaintiff was likely quantities of Toluene would unknown of harm are known to cause kind that personal Dr. had no cause RAD.4 Jenkins to have suffered. plaintiff claims Toluene. He admitted that experience with Co., Elec. 3 F.3d at Abuan v. See General patient the first he had ex- Mr. Moore was 333. injury who claimed that he suffered amined exposure to this chemical. Id. at 1107. in proof on causation this The scientific D. infirmities as the cau- ease suffers the same that court had found in Wright, Even if the district which court sation evidence evidence of the Dr. had sufficient Jenkins stated: Mr. Moore was of chemicals to which level Peretti, Dr. Frank after a It is true that entitled to exposed, the district court was testified that the great prodding, deal of scientific, no conclude that Dr. Jenkins had complaints probably Wrights’ were more technical, specialized knowledge that or other exposure to than related to formalde- resolving assist the trier of fact

would opinion was not hyde, but that based Dr. conclusion question. causation Jenkins’ any knowledge about what amounts triggered Mr. the Toluene solution impregnated with formalde- wood fibers assumptions: on two Moore’s RAD was based appreciable of harm to hyde involve an risk 1) irritating properties can any chemical with beings who them. The human breathe (R. 2) 10.132); the manufac- cause RAD have excluded trial court should therefore warning general turer’s contained re- Dr. Peretti’s as Williamette exposure to the chemical could MSDS that do, it to because it was not based quested organs, includ- damage cause to a number knowledge, [citing cases] on scientific Toluene was lungs, established that probable testimony regarding the Peretti’s temporal connection be- an irritant. The Wrights’ injuries was cause of the claimed exposure to Toluene and tween Mr. Moore’s simply speculation. symptoms clinched Jenkins’ his onset jury only spec- could therefore have conclusion. the amount of for- ulated about whether plant support maldehyde from Williаmette’s cite no scientific Dr. Jenkins could exposed any plaintiff irri- each was was suffi- which for his conclusion indeed, or, injuries cient to cause their trigger levels can this asth- tant at unknown all____ proving haz- Surely injuries at Without matic-type a court is enti- condition. exposure to ardous levels of Williamette’s unsupported, tled to an unscientific view such exposed arguably contained number only relied the store clerk literature Dr. Jenkins case Brooks on several to Toluene. Some of the article of irritants in addition irritating of these studies related to 19- studies. One ingredients have been more other year-old exposure to floor sealant Also, store clerk’s exposed clerk was Toluene. than things, containing, among In ad- Toluene. working space a small for two while Toluene single case dition to the scientific limitations While he was still on and one-half hours. surrounding study study, circumstances symp- experienced job, a number of the clerk expo- markedly Mr. Moore’s different from were toms, dizziness and headaches. such as The floor sealant to which sure to the chemical. carry Wrights excluding failed to did not its discretion formaldehyde, the abuse —Dr. proof being at trial on the issue without sufficient their burden the evidence failed to causation because factual or scientific foundation. inference in favor of support a reasonable F. jury’s finding against William- implicit

ette on the causation issue. Finally, I am if satisfied even evidence, rejecting district erred this Wright, 91 at 1108. it was harmless error. As outlined in the court also was entitled to con- The district majority opinion, permitted the district court possi- of other sider uncontroverted evidence testify Dr. Jenkins to about his examination Moore’s asthmatic condi- ble causes of Mr. testing of Mr. Moore. The district court First, just returned to tion. Mr. Moore had also admitted Jenkins’ conclusion that recovering pneumonia. from Sec- work after RAD, suffering along Mr. was Moore ond, cigarette a smoker. He Mr. Moore was prediction with his for future treatment and pack cigarettes day a a had smoked about disability. twenty years. Finally, Mr. Moore admit- Dr. testimony Jenkins’ and Alvarez’s from asthma as a ted that he had suffered completely except was consistent that Dr. child. argu- Jenkins’ examination and tests were ably comprehensive more than Dr. Alvarez’s. E. plaintiff The district court allowed the to agree majority I that Dr. Jenkins with the produce of Dr. Jenkins’ evidence examination pulmonary specialist. But well-qualified is a tests, accepted and Dr. Alvarez Dr. Jen- majority’s disagree suggestion I with the findings kins’ as accurate. On the causation expert that when we consider whether an has issue, proffered testimony Dr. Jenkins’ was given sliding a we have a scientific virtually testimony. identical to Dr. Alvarez’s greater qualifi- where the the witness’ scale Both testified that the solution Toluene less scientific the must cations the evidence irritant, an this MSDS established support opinion. be to fact, temporal and that connection be- Ciba-Geigy Corp., In 78 F:3d 316 Rosen Mr. tween Moore’s to Toluene and (7th Cir.1996), the Seventh Circuit consid- justified RAD his onset of the conclusion that admissibility highly qualified ered the suggested two were related. Jenkins expert’s opinion on causation that medical no material factual or scientific basis for his support. In lacked formal scientific opinion on causation that Dr. Alvarez did not case, plaintiff sought to connect his use of rely on. Dr. Jenkins testified that he had patch, help stop smoking, to him to a nicotine previous patient who claimed never had distinguished A his sudden heart attack. triggered that Toluene his RAD and he ad- department cardiologist and head at the Uni- mitted that he conducted no tests this versity Chicago testified that the heart why jury I question. am unable to see triggered attack was indeed the use of the gleaned would have assistance from Circuit, speak- patch. nicotine The Seventh testimony on the critical causation Posner, ing through Judge held not in Dr. Alvarez’s issue that did find correctly permit district court declined per- testimony. A court’s refusal to district inadequate because it this party call witnesses to mit a two scientific basis. The court stated: “Under rarely consid- give cumulative regime judge of Daubert a district asked prejudicial ered error. to admit scientific evidence must determine observed, where the excluded As one scientific, genuinely whether the evidence expert’s testimony angle a new does add being speculation as distinct from unscientific issue, argument point the testi 318(ci- by genuine offered scientist.” Id. at mony its exclu is considered cumulative and omitted). tation Gas, Kendra & sion is harmless error. Oil (7th Homco, Ltd., summary, I Inc. v. 879 F.2d 240 Cir. am satisfied dis- 1989); Wayne Corp., 621 correctly rejected certainly trict court see also Collins v. —and (5th Cir.1980); Miley v. Delta 777, 782 Ray RANSOM, Petitioner- Kenneth Co., 473 F.2d Drilling Marine Appellant, ‍‌‌‌‌‌‌​‌​‌‌​​​‌​‌​​‌​​‌‌‌‌​‌​​​​‌​‌​​‌​​‌​‌​​‌‌​‍Cir.1973). position on causation Moore’s Mr. Alvarez; he was not by Dr. presented repeated position that same have Director, Gary JOHNSON, entitled De- Texas L. Justice, partment Institu- of Criminal

by Dr. Jenkins. Division, Respondent-Appellee. tional No. 97-20468. III. Appeals, Court of United States the dis- has directed Fifth Circuit. Supreme Court firm ex- with a hand to control trict courts 21, 1997. Oct. litigation abuse so prevent pert 28, 1997. Certiorari Denied Oct. court took a us. The district to all of familiar See 118 S.Ct. 361. testimony, ap- Dr. Jenkins’ look at careful standard, and excluded plied the correct record, I fail reviewing the

testimony. After have court could the district how

to see majori- conclusion. The any other

reached exactly in” sends view it all

ty’s “let conscientious district message to

wrong therefore dissent. I

courts. JOLLY, KING, Before JONES,

HIGGINBOTHAM, DAVIS, BARKSDALE, DUHÉ, WIENER,

SMITH, GARZA, DeMOSS, M.

EMILIO STEWART, BENAVIDES, PARKER and Judges.*

DENNIS, Circuit

ORDER

Nov. THE

BY COURT: judges in majority active service

A determined, on the court’s own mo-

having banc,

tion, ease en this to rehear that this cause shall

IT IS ORDERED argu- en banc with oral by the court

reheard hereafter to be fixed. on a date

ment briefing specify a schedule for the will

Clerk briefs. supplemental

filing of * pate parlici- in this decision. did not Judge Chief Politz recused

Case Details

Case Name: Bob T. Moore and Susan Moore v. Ashland Chemical, Inc. And Ashland Oil, Inc.

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Nov 12, 1997

Citation: 126 F.3d 679

Docket Number: 95-20492

Court Abbreviation: 5th Cir.