Lead Opinion
Panel consists of Justices COHEN, BRISTER,
EN BANC OPINION
Jennings writes for the majority of the en banc Court, joined by Chief Justice Schneider and Justices Hedges, Taft, Nuc-hia, and Radack. Justice Brister concurs in the judgment of the en banc Court. Justice Cohen joins sections I through IV(D) of the majority opinion, does not join section IV(E), and dissents from the judgment of the en banc Court, joined by Justices Mirabal and Smith.
In this personal injury suit for unseaworthiness under the general maritime law and for negligence under the Jones Act,
We note at the outset, in regard to these two issues, that our primary role is to ascertain whether the trial court abused its discretion in finding reliable, and thus in admitting, expert testimony under Texas Rule of Evidence 702. Helena Chem. Co. v. Wilkins,
I. Facts and Procedural Background
Coastal owned and operated the steam tanker S.S. Coastal Manatee. Anderson joined the crew of the Coastal Manatee on July 6, 1994 as a utility hand in the steward’s department. He was healthy and physically capable of performing his duties when his voyage began. Before then, he had suffered no chronic illnesses, pneumonia, or respiratory problems; had never smoked; had been physically active; and had passed Coastal’s health examination. During the voyage, thе Coastal Manatee twice loaded naphtha, which the vessel carried for approximately 11 days. Viewed in the light most favorable to Anderson, both times naphtha was loaded, he and other crew members smelled particularly strong chemical fumes throughout the ship. Anderson and at least one other crew member, radio electronics officer Butch Smith, smelled fumes in their quarters. The fumes once drove Smith out of his room to sleep elsewhere.
A few days later, Anderson went to the hospital under the care of Dr. Eugene Brown, who referred Anderson to pulmonary specialist Dr. David Miller. Dr. Miller became Anderson’s treating physician and diagnosed Anderson with BOOP. The evidence in the light most favorable to Anderson shows that, despite objective testing indicating his respiratory health
Anderson sued Coastal for his personal injuries, alleging negligence under the Jones Act and unseaworthiness under general maritime law. The case was tried to a jury. Over the objection of Coastal, the videotaped deposition testimony of Dr. Miller, Anderson’s sole testifying expert on medical causation, was introduced into evidence.
Dr. Miller, who had been board certified in pulmonary disease and internal medicinе for 15 and 20 years respectively, testified that he saw “lots of ... common inhalation type problems” in his practice. Dr. Miller stated that Anderson told him he had inhaled a “gaseous” material (naphtha) while working aboard the Coastal Manatee and related the acute symptoms he had suffered.
On cross-examination, Dr. Miller conceded that BOOP is usually idiopathic.
However, Dr. Miller was not aware of any literature associating BOOP with exposure to chemicals other than oxides of nitrogen, which he conceded are found “everywhere.” Similarly, Dr. Wilson testified that he was unable to find any literature connecting BOOP to naphtha exposure. Dr. Wilson also testified without dispute that the medical literature associates BOOP with only limited chemical agents, such as nitrogens of oxide, which naphtha does not contain. Additionally, Dr. Miller acknowledged (1) he was not a toxicologist, (2) he did not know how much naphtha Anderson was exposed to or for how long, and (3) his diagnosis presumed that there was a causal relationship between naphtha exposure and BOOP.
Aside from the above expert testimony, the only other evidence of causation in the record was (1) Dr. Brown’s statements in the medical records, the discharge summary, and other notes; (2) the naphtha material safety data sheet (MSDS);
The jury found Coastal negligent and the vessel unseaworthy and awarded Anderson $1,254,500, including damages for past physical pain and mental anguish.
II. Standard of Review
We, as an appellate court, may not disturb a trial court’s determination that a witness is or is not qualified as an expert unless a clear abuse of discretion is shown. Gammill,
III. Expert Testimony
An expert may testify on scientific, technical, or other specialized subjects if the
A. Daubert
In Daubert, the Supreme Court held that the Frye
Although “not presum[ing] to set out a definitive checklist or test” in considering the admissibility of expert scientific testimony, the Daubert Court offered the following as a “flexible” inquiry to be made by the trial court:
1. whether the theory or technique “can be (and has been) tested”;
2. whether the theory or technique “has been subjected to peer review and publication”;
3. what is “the known or potential rate of error” for any tests or techniques; and
4. whether there is “general acceptance” in the relevant scientific community.
B. Daubert’s Texas Progeny
Emphasizing the importance of trial courts’ “scrutiniz[ing] proffered evidence for scientific reliability when it is based upon novel scientific theories, sometimes referred to as ‘junk science,’ ” but not limiting its holding to novel theories, the Texas Supreme Court adopted the Daubert analysis in regard to Texas Rule of Evidence 702. Robinson,
1. the extent to which the theory has been tested;
2. the extent to which the technique relies upon the expert’s subjective interpretation;
3. whether the theory has been subject to peer review;
4. the technique’s potential rate of error;
5. whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and
6. the nonjudicial uses that have been made of the theory or technique.
Robinson,
Daubert’s test was adopted in almost identical form by the Court of Criminal Appeals.
1. the extent to which the underlying scientific theory and techniquе are accepted as valid by the relevant scientific community, if such a community can be ascertained;
2. the qualifications of the expert(s) testifying;
3. the existence of literature supporting or rejecting the underlying scientific theory and technique;
4. the potential rate of error of the technique;
5. the availability of other experts to test and evaluate the technique;
6. the clarity with which the underlying scientific theory and technique can be explained to the court; and
7. the experience and skill of the person(s) who applied the technique on the occasion in question.
Id. at 554 & n. 6 (citing Kelly,
We have noted that our highest courts have repeatedly emphasized that the pertinent, suggested inquiries in assessing the reliability of expert testimony are applied flexibly and are not exclusive or required,
Both the Texas Supreme Court and the Texas Court of Criminal Appeals have also held that non-scientific expert testimony (ie., that involving technical or other specialized knowledge) must also meet the reliability requirement of Daubert/Robinson/Jordan. Gammill,
In Nenno, the Court of Criminal Appeals pointed out that the Daubert/Robin-son/Jordan inquiries “do not necessarily apply outside the hard science context.” Id. at 561 (emphasis added). The court emphasized that “methods of proving reliability will vary, depending upon the field of expertise,” and recognized that,
[w]hen addressing fields of study aside from the hard sciences, such as the social sciences or fields that are based primarily upon experience and training as opposed to the scientific method, Kelly’s requirement of reliability applies but with less rigor than to the hard sciences. To speak of the validity of a “theory” or “technique” in these fields may be roughly accurate but somewhat misleading.
Nenno,
Aсknowledging that “hard science methods of validation, such as assessing the .potential rate of error or subjecting a theo
1. whether the field of expertise is a legitimate one;
2. whether the subject matter of the expert’s testimony is within the scope of that field; and
3. whether the expert’s testimony properly relies upon and/or utilizes the principles involved in the field.17
Id.
Mindful of these guiding rules and principles, we address Coastal’s first and second issues.
IV. Analysis
In its first issue, Coastal contends the trial court abused its discretion by allowing Anderson’s medical expert, Dr. David Miller, to testify that naphtha exposure caused Anderson’s BOOP. Specifically, Coastal claims Dr. Miller’s methodology was unreliable. At trial, Coastal timely objected to Dr. Miller’s opinion testimony on causation. Once Coastal objected, Anderson had the burden to show that Dr. Miller’s methodology was sound. See Gammill,
A. Applicable Causation Burdens and Principles
Two burdens of proof apply. Under the Jones Act, Anderson had to show that Coastal’s negligence played any part, “even the slightest,” in producing Anderson’s BOOP. E.g., Maritime Overseas Corp. v. Ellis,
Two causation principles also apply. First, in regard to the causation issues presented in this case, we are mindful that toxic-tort case law is instructive by analogy. One common way of understanding toxic-tort causation is to break it down into general causation and specific causa
Second, expert testimony is required to prove causation in this case, contrary to Anderson’s claim. To establish causation in a personal injury case, a plaintiff must prove the defendant’s conduct caused an event and that that event caused the plaintiff to suffer compensable damages. See Burroughs Wellcome Co. v. Crye,
The evidence was undisputed that BOOP has several possible causes and is idiopathic a third of the time. General experience and common sense simply do not enable a fair understanding of causation under these circumstances; accordingly, expert testimony is required.
B. The Reliability of Dr. Miller’s Differential Diagnosis
Here, because Dr. Miller’s medical causation opinion testimony falls outside the category of “hard science,” and not all of the Daubert/Robinson/Jordan inquiries thus make sense when applied to his opinion testimony, we turn to Nenno’s translation of the these inquiries. We therefore consider
1. whether Dr. Miller’s field of expertise is a legitimate one;
2. whether the subject matter of Dr. Miller’s testimony is within the scope of that field; and
3. whether Dr. Miller’s testimony properly relies upon and/or utilizes the principles involved in the field.
See Nenno,
The trial court would not have abused its discretion if it impliedly found that Dr. Miller met the first two Nenno inquiries. As a pulmonologist, Dr. Miller’s field of expertise is certainly legitimate. His testimony further revealed that he has extensive experience in diagnosing and treating acute lung injuries, including those caused by chemical exposure. His causation opinion testimony concerned Anderson’s BOOP and was within the scope of his field of expertise.
In regard to his reliance upon and utilization of the principles of his field, Nen-no’s third inquiry, Dr. Miller used a “differential diagnosis,” sometimes referred to as “differential etiology.” This is a clinical process whereby a doctor determines which of several potential diseases or injuries is causing the patient’s symptoms by ruling out possible causes — by comparing the patient’s symptoms to symptoms associated with known diseases, conducting physical examinations, collecting data on the patient’s history and illness, and analyzing that data — until a final diagnosis for proper trеatment is reached. See Neal, at 473 n. 3 (quoting Atterbury); Atterbury,
Even with all the advances of medical science, the practice of medicine remains an art. A properly conducted and explained differential diagnosis is not “junk science.” If a differential diagnosis provides a sufficient basis on which to prescribe medical treatment with potential life-or-death consequences, it should be considered rehable enough to assist a fact finder in understanding certain evidence
In answer to Nenno’s third inquiry, Dr. Miller’s opinion was based on what the trial court could reasonably have concluded was a properly explained and conducted differential diagnosis, which is in itself a reliable and widely accepted methodology. Thus, we hold that the trial court did not abuse its discretion if it impliedly found Dr. Miller gave a reliable differential diagnosis under Daubert/Robinson/Jordan.
Our holding that the trial court did not abuse its discretion if it impliedly found Dr. Miller offered a rehable differential diagnosis does not end our inquiry, however. The question remains as to what Dr. Miller’s differential diagnosis can prove.
The federal courts are split on whether a differential diagnosis, without more, can reliably show both specific and general causation under Daubert in the toxic-tort context. See Heller,
One branch of federal case law indicates that a properly conducted and explained differential diagnosis, by itself or with little else, could sufficiently establish causation for a toxic-tort plaintiff to prevail.
In contrast, other federal courts indicate that a differential diagnosis does not, by itself, establish causation sufficiently for a toxic-tort plaintiff to prevail. See generally id. at 122-24 (discussing and collecting cases). Rather, these courts also require some type of “hard science’ on the issue of general causation (even if they do not always use that precise term), i.e., whether the chemical can cause the illness generally, before allowing in differential-diagnosis testimony.
At least one Texas court has concluded, in the context of a toxic-tort suit for negligеnce and product liability, that a doctor’s differential diagnosis by itself would, at best, be evidence of specific causation only:
Another form of scientific evidence is known as differential diagnosis. This involves a history of the patient and a physical examination, and refers to the process a physician would undertake to eliminate other generally known causes of illnesses and injuries to diagnose a specific cause of a particular patient’s illness or injury. The Texas Supreme Court has stated, “an expert’s assertion that a physical examination confirmed causation should not be accepted at face value.” [Havner ] at 720. Clearly, an expert’s recitation that he has examined a patient and has done a history of the patient and has concluded that X caused the patient to suffer with Y would not be sufficient to support causation. If the physician explained the exact methodology that he used in arriving at the conclusion, including discussing the exact other causes that have been ruled out and the generally accepted literature that he relied upon in making that conclusion, the differential diagnosis evidence could be sufficient to prove specific causation. Even though some courts have held that differential diagnosis is a valid form of evidence to support general causation, it most likely is not sufficient under current standards promulgated by the Texas Supreme Court. This statement is made based upon what appears to be the court’s total reliance on objective evidence and its disdain for any form of subjective analysis.
Atterbury,
Although Atterbury was a toxic-tort case, we follow the reasoning of the Atter-
Dr. Miller’s testimony provided nothing outside his differential diagnosis except the temporal proximity of the naphtha fumes to Anderson’s symptoms. Dr. Miller admitted that he was not a toxicologist, did not know what chemicals comprised naphtha, and had read no literature connecting naphtha and BOOP.
D. The Result
The vеry nature of Dr. Miller’s differential diagnosis would limit that diagnosis to proving specific causation. Furthermore, Anderson failed to meet his burden to show that Dr. Miller’s diagnosis could also be reliable as to general causation. In the toxic-tort context, a plaintiff must establish general causation for a differential diagnosis to be relevant to show
We note that our dissenting colleagues join the opinion thus far; however, they part ways on the remaining issue of whether the record contains reliable general-causation evidence.
E. The Sufficiency and Reliability of the General Causation Evidence on Which Anderson Relies
In its second issue, Coastal claims there was legally insufficient evidence of medical causation to support the jury’s verdict. We review the remaining record for sufficient evidence of general causation. We apply the reliability test as articulated in Daubert/Robinson/Jordan in our sufficiency review as well.
Anderson argues there was legally sufficient evidence of causation under the Jones Act’s “featherweight” causation standard. Anderson further argues other evidence in the record constituted legally sufficient evidence of causation. Anderson refers us to “evidence that came from the various doctor’s [Dr. Brown’s] reports, the exhibits (particularly the MSDS), and the lay testimony [of timing].”
First, the Jones Act’s “featherweight” causation standard cannot transform no evidence into some evidence. The proper focus is not on the causation burden of proof, but on whether the expert opinion testimony is rehable in the first place. As noted above, if expert opinion testimony is unreliable, it is no evidence, not even a feather’s weight. See Havner,
Second, Anderson did not present Dr. Brown (or his differential-diagnosis notes) as his causation expert, and Dr. Brown’s notes came in, along with all the medical records, as exhibits to Dr. Miller’s deposition testimony presented at trial. Even if Dr. Brown’s differential diagnosis (as stated in the medical records, discharge summary and other notes) could nonetheless be considered expert testimony, it, like Dr. Miller’s, could show at most specific causation.
Third, the evidence presented here revealed that BOOP has several possible causes and is often idiopathic. General experience and common sense simply do not enable a fair understanding of either specific or general causation under these circumstances. Accordingly, expert testimony was required. Anderson offered no additional expert testimony showing that, generally, naphtha can cause BOOP. Simi
Put another way, if Anderson had produced only Dr. Brown’s differential diagnosis (as stated in the medical records, discharge summary, and other notes), the naphtha MSDS, and Dr. Wilson’s statement that chemical pneumonia can cause BOOP, would he have carried his Daubert/Robinson/Jordan burden? He would not. Cf. Havner,
Accordingly, the trial court abused its discretion in admitting Dr. Miller’s specific-causation testimony when the record also lacked general-causation testimony by an expert applying inquiries like those under Daubert/Robinson/Jordan. See Atterbury,
We sustain Coastal’s first issue. Because we sustain Coastal’s first issue, we must also sustain its second issue.
Because Coastal’s first and second issues are dispositive of the appeal, we need not address the remaining issues.
Y. Conclusion
The United States Supreme Court, the Supreme Court of Texas, and the Texas Court of Criminal Appeals have repeatedly emphasized that the suggested inquiries to determine the reliability of an expert’s opinion are to be used flexibly and are not exclusive. Daubert,
We emphasize that a trial court may also consider other factors, not previously suggested, that are germane to an expert’s qualifications and field of expertise in determining the reliability of proffered expert opinion testimony. The “methods of proving reliability will vary, depending upon the field of expertise.” Nenno,
Although we respect the discretion of trial courts in performing their gatekeep-ing function, we must conclude, in this case, that the trial court abused that discretion in admitting Dr. Miller’s specific-causation testimony when there wаs no general-causation testimony by an expert. Thus, there was legally insufficient evidence in this case that exposure to naphtha played any part, “even the slightest,” in causing Anderson’s BOOP.
We reverse and render judgment in favor of Coastal.
Justice Brister dissented from the panel’s decision to affirm the trial court’s judgment.
En banc consideration was requested. Tex.R.App. P. 41.2(c).
A majority of the Court voted for en banc consideration of the panel’s decision. See id.
Justice JENNINGS, writing for the majority of the en banc Court, joined by Chief Justice SCHNEIDER and Justices HEDGES, TAFT, NUCHIA, and RA-DACK. See Tex.R.App. P. 47.5.
Justice BRISTER concurring in the judgment of the en banc Court. See id.
Justice COHEN, joined by Justices MIRABAL and SMITH, joining only sections I through IV(D) of the en banc Court’s majority opinion and dissenting from the judgment of the en banc Court. See id.
Justices KEYES and WILSON not participating. See id.
The Honorable Scott Brister, who became Chief Justice of the Fourteenth Court of Appeals on July 16, 2001, continues to participate by assignment for the disposition of this case, which was submitted on May 7, 2001.
The Honorable Jackson B. Smith, retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.
. 46 App.U.S.C. § 688 (2002).
. For simplicity’s sake, we refer to both Mr. Anderson and his wife, acting as his adminis-tratrix, as "Anderson.”
. "Naphtha” is “a name originally applied to an inflammable volatile liquid (a constituent of asphalt and bitumen) issuing from the earth in certain localities; now extended to most of the inflammable oils obtained by dry distillation of organic substances, esp. coal, shale, and petroleum.” The Compact Oxford English Dictionary 1146 (2d ed.1991).
. Although Smith moved toward the part of the vessel housing Anderson's room to escape the fumes, Smith testified that he could still smell some fumes where he had moved, although the air was better.
. The record does not support Justice Bris-ter’s implication, in his concurrence, that Anderson was untruthful or litigation-motivated in relating his history to Dr. Miller. It is undisputed that Dr. Miller was Anderson’s treating physician, who conducted his diagnosis as part of Anderson’s treatment shortly after Anderson's coming ashore. Furthermore, the record doеs not support Justice Brister's conclusion that "Anderson's BOOP was diagnosed by biopsy, not by process of elimination” and that "this was no diagnosis.” The biopsy ultimately confirmed BOOP, but only after the history, examination, and other tests narrowed down the field, as discussed below. Therefore, Dr. Miller's differential diagnosis was an essential part of both Anderson’s treatment and the ultimate diagnosis of BOOP.
. Dr. Miller ruled out (1) viral and bacterial pneumonia because Anderson had had no fever (a disputed fact, which we must resolve in Anderson’s favor); (2) tuberculosis because Anderson stated he had not been exposed to that disease; (3) asthma, cancer, "wet lung syndrome,” "acute respiratory distress syndrome,” and smoking-related injury because of Anderson's medical history and tests; and (4) asbestosis, despite Anderson's having been exposed to asbestos for about 30 years, because the biopsy did not support that disease.
. "Idiopathic” means "a disease of unknown cause.” Stedman's Medical Dictionary 848 (26th ed.1995).
. As the immediately preceding discussion of Dr. Miller's diagnosis shows, that diagnosis did not, as Justice Brister’s concurrence claims, rely "heavily” or solely on Anderson's truthfulness. Rather, the doctor used Anderson’s oral history as a starting point for
. Dr. Wilson testified that other identified causes of BOOP are infections, tissue transplantation, inflammatory conditions (like arthritis), and some medications.
. The MSDS indicated that naphtha could irritate mucous membranes and the respiratory tract and act as an asphyxiant; could, upon overexposure, lead to headache, nausea, drowsiness, fatigue, pneumonitis, pulmonary edema, and central nervous system depression; and could cause stomach irritation, unconsciousness, congestion, and hеmorrhaging of the lung and internal organs.
. Frye v. United States,
. We note that the supreme court found the reasoning of the Court of Criminal Appeals persuasive in developing Robinson’s reliability test. See E.I. du Pont de Nemours & Co. v. Robinson,
. Although Kelly involved novel scientific evidence, the court later concluded that the standard established in that case applied to all scientific evidence, whether novel or not.
. The factors a trial court will find helpful in determining whether the underlying theories and techniques of the proffered evidence are scientifically reliable "will differ with each particular case.” Robinson,
. Justice Brister, in his concurrence, confuses Daubert’s reliability requirement with creating "standards we must apply.” Justice Brister’s rigid application of the Daubert/Rob-inson/Jordan inquiries has been expressly rejected by our higher courts. Kumho Tire Co., Ltd. v. Carmichael,
. For this particular holding, Nenno relied in part on the panel opinion of the United States Court of Appeals for the Fifth Circuit in Moore v. Ashland Chem., Inc., which was vacated by the en banc court.
. The Nenno court clarified that it was not attempting "to develop a rigid distinction between 'hard' science and 'soft' sciences, or nonscientific testimony” because “the distinction between various types of testimony may often be blurred.” Id. at 560-61. Rather, the court noted that its observations applied flexibly and to all types of expert testimony and were merely an appropriately tailored translation of the Daubert inquiries. Id. at 561. We thus consider Nenno’s third inquiry broad enough to encompass any of the Daubert and Robinson inquiries, and any other inquiry not listed in those cases, that is appropriate to the expert and the expert’s field.
. See also Henderson v. State,
. Justice Brister's criticism in his concurrence that this Court has created a "new general causation rule” is without merit. Our observations in regard to general and specific causation in toxic-tort-type cases are taken directly from Havner: "Sometimes, causation in toxic tort cases is discussed in terms of general and specific causation. General causation is whether a substance is capable of causing a particular injury or condition in the general population, while specific causation is whether a substance caused a particular individual's injury.” Id.,
Cause-in-fact in toxic tort cases is usually thought of as two separate issues: general causation and specific causation. [Fn. 13: Arguably, these are separate issues in all tort cases. However, the general causation issue is often obvious. That cars striking trees at 60 mph might cause injury to occupants is not a point requiring expert testimony.] ....
It would be a mistake to argue that causal issues in toxic tort cases are fundamentally different from those presented in other tort cases. However, toxic tort cases do differ in degree in several significant ways. First, often there is causal ambiguity. The level of exposure ... is often uncertain. Evidence of a relationship between the substance and the injury is often uncertain. The timing between the exposure and the disease may be suspect.... Second, there is a fundamental problem of multiple causation. ... Other substances [then asbestos], however, do not cause unique injuries, and substances that do cause signature diseases may also cause others.... Third, ... [p]laintiffs may find it difficult to prove that a particular injury was the result of the defendant’s substance or another cause.” Joseph Sanders, Julie Machal-Fulks, The Admissibility of Differential Diagnosis Testimony to Prove Causation in Toxic Tort Cases: the Interplay of Adjective and Substantive Law, 64 Law & Contemporary Problems 107, 110-11 (Aut.2001) (citations omitted) [hereinafter "Sanders”].
. See also S.W. Ref. Co. v. Bernal,
. The supreme court recognizes that it is possible that a toxic-tort plaintiff may not be able to find reliable direct evidence of specific causation. See Havner,
. We disagree with Justice Brister’s position, in his concurrence, that we need not discuss specific and general causation and Dr. Miller’s differential diagnosis. The parties each rely heavily on cases that weigh in on opposite sides of the differential-diagnosis debate. That debate, and some of those cases in particular, are analyzed in terms of general and specific causation. It is the parties' reliance on those cases, and our determining why we agree or disagree with those cases, that requires us to address these issues. Additionally, to decide this case, we must resolve whether Dr. Miller made a differential diagnosis and, if so, whether that diagnosis is good for nothing (Coastal’s position) or good for everything (Anderson's position). That is the heart of the parties' dispute. That dispute can be resolved only by discussing the specific/general-causation aspect of the differential-diagnosis debate.
. Anderson's reliance on Morgan, in which the supreme court held that lay testimony sufficiently showed chemical fumes caused an injury, is misplaced. Lay testimony sufficed in Morgan because a default judgment left no evidentiary dispute as to whether “general experience and common sense” could allow a lay person to determine causation.
. See In re Paoli,
. Justice Brister’s criticism, in his concurrence, that our holding is that "differential-diagnoses are always reliable” and we create a "new differential-diagnosis rule” is without merit. Our holding is not that Dr. Miller’s differential diagnosis was reliable or that a differential diagnosis is always reliable. Our role is not to determine reliability at all. Rather, our role is to ascertain whether the trial court abused its discretion in finding Dr. Miller’s causation opinion testimony reliable. It appears Justice Brister would substitute his judgment for that of the trial court and hold Dr. Miller’s causation opinion testimony was unreliable.
Moreover, we disagree with Justice Bris-ter’s suggestion, in his concurrence, that a differential diagnosis cannot support any aspect of legal causation when applied to an illness with some unknown causes. Such a bright-line rule would be unduly restrictive in a world in which many things are not or cannot be known with absolute certainty. We acknowledge that "[a] differential diagnosis that fails to take serious account of other potential causes may be so lacking that it cannot provide a reliable basis for an opinion on causation.” Westberry v. Gislaved Gummi AB,178 F.3d 257 , 265 (4th Cir.1999); c.f., Cooper v. Smith & Nephew, Inc.,259 F.3d 194 , 202 (4th Cir.2001) (outside toxic-tort context, relying on Westberry for same). However, a specific-causation conclusion based on a differential diagnosis " 'should not be excluded because [a medical expert] has failed to rule out every possible alternative cause of a plaintiff's illness.' The alternative causes suggested by a defendant 'affect the weight that the jury should give the expert’s testimony and not the admissibility of that testimony’. ...” Westberry,178 F.3d at 265 (quoting Heller; citations omitted); accord Heller v. Shaw Indus., Inc.,167 F.3d 146 , 156 (3rd Cir.1999) (holding trial court should not have excluded differential diagnosis on basis that it failed to rule out every possible alternative cause, not merely obvious ones); Sanders at 121 (“Moreover, most courts would agree ... that a failure to account for all possible causes does not render an expert opinion based on differential diagno*606 sis inadmissible.”); cf. Purina Mills, Inc. v. Odell,948 S.W.2d 927 , 936 (Tex.App.-Texarkana 1997, pet. denied) ("Disputed facts may be established by circumstantial or direct evidence. Absolute certainly is not required. Nor must the plaintiff exclude every other possibility. All that is required before there can be a finding of ultimate fact is proof of a causal connection beyond the point of conjecture or mere possibility.”); Cooper,259 F.3d at 202 (citing Westberry for same).
. See, e.g., Turner v. Iowa Fire Equip. Co.,
. See Meister v. Med'l Eng’g Corp.,
. See also id. at 200, 201-02 (concluding one doctor's differential diagnoses, and second doctor’s causation opinion based on temporal proximity, constituted some evidence of specific causation, but no evidence of general causation); accord Brown-Gaf&s at 849-59 ("Indeed, it is now clear that differential diagnosis alone will not necessarily make a clinical physician’s causation testimony admissible.”; "A treating physician's differential diagnosis does not address general cаusation. On the contrary, a differential diagnosis 'assumes that general causation has been proven for the list of possible causes it eliminates.... Thus, in the absence of general causation evidence, courts have excluded, or found insufficient, physician's causation testimony that was based upon a
. We recognize that Atterbury and many of the cases holding similarly involved more latent or long-term cause-and-effect issues than exist here. Nonetheless, we find the Atterbury holding the most analogous to the situation here.
. We note that Dr. Wilson testified without dispute that no scientific studies linking naphtha and BOOP existed, although some studies linked a limited number of other chemicals to BOOP.
. We observe that proving general causation in the toxic-tort or analogous context will usually involve the use of “hard science.” See Atterbury,
. Additionally, because there is no evidence of what tests were conducted in compiling the MSDS, the MSDS has limited value in determining causation. See Moore,
Concurrence Opinion
concurring.
For the first time since judges were admonished to guard the gate leading to the expert witness stand, this Court must review whether some evidence connects a particular chemical exposure to a particular disease. In Daubert v. Merrell Dow Pharmaceuticals, Inc.
1. What Daubert and Havner Require
Every court superior to ours (and there are at least three) has adopted a specific list of factors that courts “should consider” when evaluating scientific medical testimony.
Dr. David Miller was Anderson’s sole expert witness on causation. He testified that Anderson’s lung disease — bronchioli-tis obliterans organizing pneumonia (known by its unfortunate acronym “BOOP”) — was caused by naphtha, even though he did not know the chemicals in naphtha, the level of Anderson’s exposure, or any medical literature that connected the two. He stated two reasons.
First, he relied on the temporal connection between Anderson’s exposure and his disease. Such post-hoc-ergo-propter-hoc
Second, he used a “differential diagnosis,” based partly on medical tests, but mostly on what Anderson told him. The Court finds this “differential diagnosis” reliable. For several reasons, I am not so sure.
First, this was no diagnosis. Differential diagnosis is a “determination of which of two or more diseases with similar symptoms is the one from which the patient is suffering.”
Second, Dr. Miller’s opinion was critical for something else — Anderson’s million-dollar claim against his employer.
Third, no evidence shows that Dr. Miller’s reliance upon temporal proximity and a process of elimination is a rehable method used by scientists to establish what causes BOOP, especially when a new “cause” is involved. This is demonstrated by applying the factors Daubert and Hav-ner say we “should consider”:
• Testing. One could test whether this methodology is a valid way to find new causes of BOOP, or whether naphtha causes BOOP, but apparently no one has done so;
• Peer review and publication. Neither Dr. Miller’s methodology nor conclusion have ever been published or reviewed by his peers;12
• Potential rate of error. For the above reasons, this is unknown;
• General acceptance. Without citation to any medical studies, there appears to be no general acceptance of this testimony from other members of the medical community;13 and
• Non-judicial use. As previously mentioned, the primary use of this testimony was Anderson’s lawsuit — it had no effect on his treatment.
Moreover, the peculiar facts here make a differential diagnosis particularly subjective and unreliable. As noted in Havner, there is a relationship between mathematical percentages and the burden of proof.
Finally, in this case there are both unknown and ubiquitous causes, both of which it is impossible to “rule out.” For the former, one cannot develop a checklist of symptoms, exposures, or medical histоry to exclude them. For the latter, one cannot exclude something that everyone is
Differential diagnoses may sometimes meet the Daubert standards. If the percentage of unknown causes is small, a known cause may well be “more likely.”
II. The Court’s New Differential-Diagnosis Rule
Instead of testing Dr. Miller’s “differential diagnosis” by the factors Daubert and Havner say we should consider, the Court holds that no differential diagnosis need comply with them. This stretches “flexible” too far.
The Court rejects the Daubert and Hav-ner factors because they are “hard science,” opting instead for a “soft science” approach to differential diagnoses. I may be mistaken, but I believe most scientists that fly on airplanes, go to the doctor, or get sued for a million dollars would expect the science to be pretty “hard.” True, doctors in a clinical setting may sometimes have to guess. Exigencies may require them to try certain treatments before they know what will work. But the Court does not explain why these lower standards make them reliable in court.
Instead, the Court declares a new test— differential diagnoses are admissible if “properly conducted and explained” or “properly relie[d] upon and/or utilize[d].” This is not much of a test. At the least, it is a very subjective one — who is to say what is proper? The Daubert and Havner tests contain objective standards to ensure reliability; the Court’s test returns us to the days of “flexible” sсience.
There is (as the Court notes) considerable disagreement about whether and to what extent differential diagnoses meet the requirements of Daubert and Havner. In part, this is because they come in many varieties and circumstances. For example,
The Court’s commitment to and analysis of differential diagnoses is impressive, especially as very little of it comes from the parties’ briefs.
III. The Court’s New General Causation Rule
But the Court’s opinion has something to trouble everyone. While defendants may be surprised to learn that differential diagnoses are presumptively reliable, plaintiffs are now informed they must prove both general and specific causation in all toxic tort cases. Neither party asked for this; indeed, they never mention “general causation” in their four briefs. The Texas Supreme Court has never stated such a rule; Hamer notes only that plaintiffs “sometimes” offer general causation evidence when they cannot present reliable evidence оf specific causation.
It is the work of a moment for a defendant to file a no-evidence motion demanding proof of general causation. The Court’s opinion short-circuits any argument that such proof is not required in every toxic tort case. General causation usually means epidemiological studies-not
Moreover, the term “toxic torts” covers a lot of ground-from asbestos and breast implants to refinery explosions, vaccinations, and food poisoning. There is a logical appeal to requiring every plaintiff to prove that an alleged causation chain can actually occur. But if asbestos fibers are directly found in a plaintiffs lungs, or thirty people eating at the same restaurant get sick at once, I hesitate to hold that each of them must prove “general causation” simply because their tort implicates a toxin.
And why limit this proclamation to toxic tort cases? “It would be a mistake to argue that the causal issues in toxic tort cases are fundamentally different from those presented in other tort cases.”
I hope the Court’s new rule is correct, but it may prove to be very expensive for some litigants if it is not. Without considering the circumstances in all of these cases, and without either party asking us to take such a step, I would not go that far here.
IV. The Dissent and the Documents
The primary issue the parties briefed and argued was whether, even without Dr. Miller’s testimony, scattered references in the medical records and a product sheet about naphtha were enough to establish causation in this case.
There is no question these documents were admissible; they just were not enough.
Similarly, the naphtha product safety data sheet states only that overexposure to naphtha can cause (among many other problems) inflammation of the lungs. Because it does not mention BOOP, it provides no information about relative risk, required exposure level, or time of onset.
In addition, Anderson’s argument fails because it violates a rule much older than Dauberb — unless medical causation is within the common knowledge of laymen, expert testimony is required.
First, none of them are under oath. If Anderson had requested a trial continuance due to health problems, his doctor’s opinions would have to have been sworn.
Second, it is too easy to reach the wrong conclusion by picking and choosing parts of a document and using them out of eon-text. Anderson points to several concluso-ry statements in the medical records that his lung inflammation was caused by his chemical exposure. But he skips over the discharge summary, which relates his shortness of breath to “exposure to Benzine [sic], Toluene, asbestos and naphtha.” As these entries show, hospital records often recite a working diagnosis or a patient’s version of his medical history; this does not mean they are intended to be independent opinions of causation.
Third, Anderson’s use of these documents shows the wisdom of the rule that bars admission of “learned treatises” in place of expert testimony.
• certain chemicals (but not naphtha) have been shown to cause lung inflammation that can cause BOOP;
• naphtha can cause lung inflammation;
• therefore, naphtha-related lung inflammation must also cause BOOP.
But according to this reasoning, all chemicals that cause inflammation (and there
If we drop the requirement for an escorting expert, we will soon end up with “science” that scientists can prove wrong. For example, Coastal’s expert, Dr. Keith Wilson, testified without contradiction that tobacco (for once) is not associated with this lung disease. Of course, tobacco smoke contains chemicals, which undoubtedly can inflame the lungs. Thus, tobacco must cause BOOP — except that it doesn’t.
Conclusion
Someday, medical science may find that naphtha exposure causes BOOP. But as far as we know now, it is just as likely to find that it does not. This case cannot be indefinitely postponed in the interim. In our system of justice, if a fact cannot be proved one way or the other, the party bearing the burden of proof loses. We cannot be hasty to impose liability when scientifically reliable evidenсe is unavailable.
Similarly, someday our highest courts may decide all toxic tort plaintiffs must prove both general and specific causation, and that a proper differential diagnosis always proves the latter but never the former. But unlike this appeal, those questions do not have to be decided today. In our system of justice, courts should answer only the questions before them, and leave broader pronouncements to future cases. We cannot be hasty to impose rules that may require backpedaling later.
For these reasons, I concur in the judgment of the Court.
.
.
. See Daubert,
. Literally, "after this, therefore because of this.” See Black’s Law Dictionary 1186 (7th ed.1999).
. See Black v. Food Lion, Inc.,
. Stedman’s Medical Dictionary 492 (27th ed.2000).
. Dr. Wilson testified without contradiction that "to really make a clear diagnosis of BOOP, you need a piece of tissue. You need a biopsy.... And so it is entirely probable that BOOP is more common than we think, but we wouldn’t make that diagnosis. If the patient gets well, which happens most of the time with BOOP, anyway, if the patient gets well, we wouldn’t do a biopsy, and so we might not know that that was specifically the diagnosis.”
. It is true doctors sometimes must find not just the disease but its cause — if a tumor is causing headaches, diagnosing the headaches does not go far enough. But Dr. Miller’s conclusion that the naphtha cargo was the cause of Anderson’s BOOP had no effect on treatment — Anderson had already left the boat.
. I make no implication about Anderson’s truthfulness or motivation. Our job is not decide his reliability, but that of the science employed by his testifying expert. Scientists take into account whether a theory was developed for litigation or something else; the Court fails to follow their rules.
. The Court says Dr. Miller’s diagnosis relied mostly on medical tests, but that is not what he said:
Q: I take it then you have to rely almost exclusively then on the history that’s given to you by the patient in order to make a judgment as to whаt caused it?
A: Correct
This is not to fault Dr. Miller — no laboratory test could show all the viruses, chemical fumes, or medications Anderson had been exposed to. More telling is the Court’s fallback position — diagnoses based on what patients say are reliable because there is a hearsay exception for such statements. See TexR. Evid. 803(4). Apparently one can meet the reliability requirements of Daubert and Havner simply by telling a doctor or making an excited utterance.
. See In re Paoli R.R. Yard PCB Litig.,
. "[Cjourts must be 'especially skeptical' of scientific evidence that has not been published or subjected to peer review.” Havner,
. See E.I. du Pont de Nemours & Co. v. Robinson,
. Havner,
. See Robinson,
. The Court's suggestion that I would reject all differential diagnoses "when applied to an illness with some unknown causes” is a straw man. I reach only the question whether a diagnosis is reliable when the most frequent cause is "unknown.”
. See Black,
. Id. at 311 (stating flexibility was not intended "to grant open season on the admission of expert testimony by permitting courts discretionarily to disavow the Daubert factors”).
.Indeed, the Court declares “[o]ur role is not to determine reliability at all." But the Supreme Court in Havner stated, "The issue before us, as in most of the previously cited Bendectin cases, is whether the Havners' evidence is scientifically reliable and thus some evidence to support the judgment in their favor.” Havner,
. See Black,
. For example, suppose a plaintiff suffering from AIDS brings suit against a health care provider alleging a transfusion of tainted blood, and denies any intravenous drug use or unprotected sexual activity. After today, this is enough to support a verdict, as AIDS can be contracted this way (general causation), and a doctor’s "differential diagnosis” based on oral history can prove it was (specific causation). Apparently, an expert need not address the very long odds against such an occurrence.
. The parties did not "rely heavily” on cases discussing differential diagnosis. In their four briefs, each party dedicated one paragraph to this issue. Neither mentioned the cases the Court adopts. Coastal’s brief merely argued that Dr. Miller never performed a differential diagnosis.
. Id. at 314.
. See Kumho Tire Co. v. Carmichael,
. Havner,
. See id. at 727. Havner rejected in vivo and in vitro studies offered in that case on grounds that make them unlikely to be more persuasive in other cases. Id. at 728-30.
. Joseph Sanders & Julie Machal Fulks, The Admissibility of Differential Diagnosis Testimony to Prove Causation in Toxic Tort Cases: The Interplay of Adjective and Substantive Law, 64 Law & Contemp. Probs. 107, 110 (2001).
. Anderson also argues circumstantial evidence supports causation, relying on the temporal connection between his exposure and his BOOP. For the reasons noted above, this connection is not enough alone to meet Dau-bert — with or without an expert.
. The dissent suggests Coastal waived error by not itemizing its objections to each line in the medical records on Robinson/Havner grounds. But Coastal specifically objected to all causation opinions in the medical records as unreliable, and challenged all of Anderson’s proof of causation by filing a pretrial motion, urging that motion again before trial began, objecting repeatedly at trial, moving twice for a directed verdict, objecting to the relevant portions of the jury charge, moving for judgment notwithstanding the verdict, and moving for a new trial. The trial court could not have missed Coastal's complaint. See TexJR.App. P. 33.1(a)(1).
.Dr. Brown's admission note states he based his conclusion on his experience as a medical director at a chemical plant, which made him familiar with “the types of pneumonia that this particular product [naphtha] could cause.” This is exactly the kind of
. See Havner,
. See Moore,
. Leitch v. Hornsby,
. Tex.R. Civ. P. 251; Hawthorne v. Guenther,
. Burroughs Wellcome Co. v. Crye,
. Id.
. Tex.R. Evid. 803(18) (providing statement from learned document may be read into evidence-though not received as an exhibit — if an expert is present to verify its reliability and explain what it means).
. Havner,
Dissenting Opinion
dissenting.
I join parts I through IV(D) of Justice Jennings’s opinion for the en banc Court. However, I disagree with part IV(E) of that opinion and thus with the conclusion and judgment. Accordingly, I respectfully dissent.
Sufficiency of Evidence Other Than Dr. Miller’s Causation Opinion
I agree with the majority that Anderson had to prove causation by expert testimony. Unlike the majority, however, I would hold that Dr. Brown’s written diagnosis and testimony by Coastal’s Dr. Wilson, along with the naphtha material safety data sheet (“MSDS”), supplied the general causation link that Dr. Miller’s opinion lacked.
1. Additional Comments on the Standard of Review
Under the Jones Act, we inquire whether the evidence reasonably justifies the conclusion that Coastal’s negligence played any part, “even the slightest,” in producing the injury at issue. E.g., Maritime Overseas Corp. v. Ellis,
2. Dr. Brown’s Opinion
Coastal did not sufficiently object under Robinson and Havner to Dr. Brown’s medical records;
I set out Dr. Brown’s initial file note of September 27,1994 in full:
[Anderson] presented a long history, very carefully given, that he was in a foreign port when they took on a load of naphtha. The fumes were extremely heavy and gagged him, and caused him kind of a respiratory type breathing problem that resulted in some chest pain. He had a hacking cough, which is documented in the communications. He had a diagnosis of tracheobronchitis, which is documented in the communications sent to me.
Here in my office I got a history that he was a long time employee of Reynolds Metals, never any serious illnesses. He had a hernia operation in 1971. There is no history of any on the job illnesses that I know of. Socially, he doesn’t drink coffee or tea, and he does not smoke or use tobacco products. Only upon occasion does he drink any alcohol whatsoever. As I listened carefully, the man related that he had been confined to his room and “quarantined” for six days. It got more difficult for him to breathe, and he had progressively more chest pain. He also went on to relate*621 that they took on a load and that the fumes were very difficult to tolerate and caused a lot of bronchospasm, coughing and chest discomfort.
He got to my practice in sort of a circuitous route, in that Dr. Vela here in Cоrpus Christi was unable to see him, and they wanted somebody who had dealt with [text whited out] in the past. Having dealt with high chain aeromatic hydrocarbons since the early 70’s, when I was the medical director at Coastal States Gas Producing here in Corpus Christy I became familiar with the types of pneumonia that this particular product could cause.
Head, eyes, ears, nose and throat revealed a bright red pharynx and bright red ears. This man was using the accessory strap muscles of respiration and appeared quite ill. Otherwise the head, eyes, ears, nose and throat were normal. Ausculation of the lungs revealed that he was barely moving any air at all, and it sounded as if he might have some sort of emphysema or chronic obstructive pulmonary disease. I went on to ask about asbestos, and the only history I got of asbestos was that he had worked at Reynolds Martin for 30 years and had had chest films every year, and that nothing had ever come up abnormal. Today we did an EKG, which revealed a sinus rhythm with a right ventricular conduction delay. He had a pulmonary function testing, which revealed extremely restricted FEV 1 of only about 50% of predicted [illegible] and extremely restricted air flow. A chest x-ray revealed a fleecy peribronchiolar infiltrate around the hilum of the lungs and almost a consolidated pneumonia in the lung bases bilaterally, but more pronounced on the right than the left. I went back and re-examined the patient and found out that he was actually a little bit more hypoxic than I felt. At this point I felt like I needed to back up [sic] the expertise of the hospital and the pulmonologist.
My impression was that he had an aspiration/chemical type pneumonia secondary to the breathing of a high chain aeromatic hydrocarbon such as naphtha. The history o[whited out] contamination I figured probably would have resulted in a dead patient. Long standing exposure to asbestos, if he had it, and I аm not sure he did, would result in markedly different looking chest film, which would be read as asbestosis. At any rate, I felt that the man’s wellness was in jeopardy and that I needed the support of the hospital and consultation of Dr. David Miller, local pulmonologist. I think the prognosis is guarded at this point.
(Emphasis added.) The discharge summary that Dr. Brown co-signed also states in part as follows:
Patient was admitted to the hospital due to shortness of breath and due to his history of exposure to naphtha from working as a merchant marine. Patient was also exposed to asbestos from working at Reynolds Aluminum Foil Plant locally for 30 years. He was exposed to Naphtha while working as a merchant marine for the past 4 years. Upon admission, a chest x-ray was done which showed diffuse infiltrates in both lungs, most severe in the lower right lobe consistent with pneumonitis3 secondary to chemical exposure. CT scan done with contrast to evaluate interstitial lung disease showed fibrosis in both*622 lung bases with a predominantly peripheral distribution. Possibilities include usual interstitial pneumonitis secondary to rheumatologic disease, asbestosis is less likely due to the absent [sic] of pleural plaques a condition that can result in this case. Other conditions that can result in basilar fibrosis are sclero-derma and chronic aspiration. Repeat chest exam done on the 1st of October 1994, showed a worsening of the right base, preexisting infiltrates and they are still present. Repeat chest exam on the 3rd of October showed unimproved bibasilar pneumonia and no new complications. Repeat on the 5th showed no new complications. Lung biopsy which was performed on the 30th of September 1994, path report shows diagnosis as previously stated. Biopsy was done on the right lower and middle lung biopsy and showed bronchiolitis obliterans, organizing pneumonia [BOOP].
(Emphasis added.) In various other documents, Dr. Brown reiterates in shorthand his diagnosis of BOOP secondary to toxic exposure.
Contrary to Coastal’s argument, Dr. Brown’s diagnostic records are not like those in Burroughs Wellcome Co. v. Crye.
3. Other Evidence of General Causation
Besides Dr. Brown’s diagnosis, the pathology report comments that multiple conditions can, in general, be “associated with” BOOP, including toxic industrial fumes, drugs, infections, chronic aspiration, collagen vascular disease, bronchial obstruction, and “idiopathic.” It is thus significant that the naphtha MSDS, which federal regulations required Coastal tо post on this vessel, states “pneumonitis” is a potential effect of overexposure to naph
For example, federal regulations require an MSDS for “hazardous chemicals,” which are defined in pertinent part as any chemical that is a “health hazard.” 29 C.F.R. § 1910.1200(c) (2001). “Health hazard” is defined as “a chemical for which there is statistically significant evidence based on at least one study conducted in accordance with established scientific principles that acute or chronic health effects may occur in exposed employees.” Id. The chemical’s manufacturer or importer, or an employer that opts to do its own testing,
We do not know who compiled this naphtha MSDS or exactly what testing procedures that entity used. It could have been The Coastal Corporation, whose name, address, and phone number appeared at the top of the MSDS, or one of the 17 apparently related corporations also listed there. See 29 C.F.R. § 1910.1200(c), (d)(l)-(2), (g)(1) (2001) (allowing the chemical’s manufacturer or importer, or an employer that opts to do its own testing, to conduct the chemical’s testing and develop the MSDS; also defining “employer” as “a
4. Conclusion
The trial judge would not have abused his discretion if he impliedly determined that (1) specific causation was reliably proved by Dr. Miller’s opinion and (2) general causation was reliably proved by Dr. Brown’s written diagnosis and Coastal’s own expert and document.
For these reasons, I respectfully dissent from the en banc Court’s judgment.
. Traditional no-evidence review requires something more than a mere evidentiary scintilla, which meаns “a barely perceptible manifestation," “the slightest particle or trace," and "a spark; a remaining particle; a trifle; the least particle." Waldrep v. Texas Employers’ Ins. Ass’n,
. Dr. Brown's medical records were part of plaintiff's exhibit 28. Coastal's only objection to that exhibit was, "There is an objection to the record to the extent they [sic] include opinions regarding medical causation for the reasons that we have previously discussed.” Coastal did not then mention Dr. Brown or explain why his causation opinions, as opposed to Dr. Miller’s, were unreliable. Plaintiff's exhibit 28, which fills an entire reporter's record volume, is comprised of 288 pages of medical records from one medical center and three doctors, including Drs. Miller and Brown. A Robinson/Havner objection must be specific. See, e.g., Scherl v. State,
. "Pneumonitis” means аn “inflammation of the lungs.” Stedman's Medical Dictionary (27th ed.2000) at 1141; see note 6, below.
. Dr. Brown’s records occasionally indicate BOOP secondary to toxic or infectious exposure, but this wording seems to have come from the pathology report, in which the pathologist simply listed the known causes of BOOP. In any event, we must review the evidence in the light most favorable to Anderson.
. The MSDS indicated that naphtha can irritate mucous membranes and the respiratory tract and can act as an asphyxiant; that overexposure can lead to headache, nausea, drowsiness, fatigue, pneumonitis, pulmonary edema, and central nervous system depression; and that naphtha can cause stomach irritation, unconsciousness, congestion, and hemorrhaging of the lung and internal organs.
. See also Stedman’s Medical Dictionary (27th ed.2000) at 1141 ("pneumonia” and "pneu-monitis” both characterized as “inflammation of the lungs,” with each term cross-referencing the other).
. Coastal argues that we may not consider Dr. Brown’s initial diagnosis of pneumonitis secondary to chemical exposure because later pathology tests revealed Anderson had BOOP, not chemical pneumonia. This argument does not take the evidence in the light most favorable to Anderson. Viewed in the appropriate light, Dr. Brown's diagnosis could be interpreted to mean either that he believed Anderson had an initial bout of chemical pneumonia that turned into BOOP or that Anderson's BOOP, even if initially mistaken for chemical pneumonia, appeared nonetheless to be caused by chemical inhalation. That is, the diagnoses of chemical pneumonia and BOOP are not necessarily inconsistent or mutually exclusive.
.Any of these three entities may conduct the chemical’s testing and develop the MSDS. 29 C.F.R. § 1910.1200(d)(l)-(2), (g)(1) (2001).
. Moore v. Ashland Chemical, Inc. and Cavallo v. Star Enterprise, on which Coastal and the majority rely, are distinguishable because the appellate courts there held the trial judge’s ruling on "close” issues was within his discretion, the opposite of what Coastal seeks to do here. See Moore v. Ashland Chemical, Inc.,