Moore v. Ashland Chemical Inc.

рast conduct as sideration of a defendant’s Ill probable of his future behavior is indicative reasons, we DENY COA foregoing For the not undesirable element of an inevitable and claim, Penry except on all issues sentencing.”)). criminal respect to the we COA. With which GRANT jury that mental If the Robison believed claim, court’s Penry AFFIRM the district we influenced Robison to commit the illness merits. dismissal on the murder, that treat- then it could have found DAVIS, M. GARZA and Before EMILIO render him less ment of the illness would STEWART, Judges. Circuit trial court dangerous the future. The jury to consider all of the instructed the REHEARING PETITION FOR ON determining submitted at trial evidence special jury Whether the each of the issues. Sept. morally culpa- thought that Robison was less BY THE COURT: illness could have been ble due to his mental special is- taken into account the second argues that this rehearing, Robison On sue. mitigating evidence mischaracterized Court misapplied Penry doctrine. See jury could have considered his and thus Because 302, 322, the time of the crime in mental illness at Penry Lynaugh, v. 492 U.S. issue, answering special it cannot second 2934, 2948, 109 L.Ed.2d S.Ct. be said that the state court decision be- (holding sentence unconstitutional death to, “contrary or involved an unreasonable allow sufficient special issues did not cause of, clearly Federal application established mitigating of men- evidence consideration law, Supreme by the Court.” as determined retardation). alleges that tal Robison 2254(d). § 28 U.S.C. mentally ill when he that he was evidence petition IT IS ORDERED distinct from the committed the murder is ease is DE- rehearing filed the above illness was in remis- evidence that his mental NIED. trial, special and that the sion at the time of jury considering precluded the issues mitigating factor.

the former evidence as a argument nuaneed than the

This is more brief, appellant initial

argument Robison’s not make this distinction. which did MOORE; Moore, Bоb T. Susan argument, reject it consider this but We Plaintiffs-Appellants Texas, 509 nonetheless. In Johnson v. U.S. Cross-Appellees, 350, 369, 2658, 2669, 125 L.Ed.2d 113 S.Ct. (1993), found that Court INC.; Ashland ASHLAND CHEMICAL youth given could be effect evidence of Inc., Defendants-Appellees Oil dangerousness of future assessment Cross-Appellants, argued that special issue. second Johnson forward-looking inquiry into future dan- Corning Corporation; jury Dow Cdc gerousness did not allow the to consider Services, Inc., Defendants. personal culpa- youth upon bore how his rejected bility for the murder. The Court No. 95-20492. stating argument, that “this forward- Appeals, United States Court independent of an as- looking inquiry is not Fifth Circuit. personal culpability. It is both sessment of Aug. jury make its logical and fair for the future of a defendant’s dan- determination

gerousness by asking the extent to which conduct.”

youth influenced defendant’s

271 Watson, Seitz, Trichopoulos,

berg, Wil- son, Amicus Curiae. Surprenant, Haspel,

Monica T. Baldwin & LA, Orleans, Myers-Squibb for Bristol New Co., Inc. Davis, Green, Michael L. Dale

Robert TX, Barton, Houston, Green, for & Davis JOLLY, KING, Before Bob and Susan Moore. DAVIS, JONES, HIGGINBOTHAM, Parsley, Alsup, Julie Caruthers Debora M. WIENER, BARKSDALE, SMITH, DUHÉ, Austin, TX, Knight, William Thompson & GARZA, DeMOSS, STEWART, EMILIO M. Dal- Banowsky, Thompson Knight, & Lowell DENNIS, BENAVIDES, PARKER and Woolf, las, TX, Carpenter, Kyle William Judges. Circuit McClane, Knox- Bright, Carpenter, Allen & Chemical, ville, TN, Inc. and for Ashland DAVIS, Judge: Circuit W. EUGENE Oil, Inc. Ashland case, tort we consider whether this toxic Jacobson, Dawson, Sodd, Lynn Moe Terry the district court abused discretion Means, Corsicana, TX, Corning for Dow physician & of a on the excluding the Services, Inc. Corp. relationship expo- and CDC Plaintiffs causal between pulmo- sure to industrial chemicals and his TX, Matthiesen, Houston, for David G. nary illness. We find no abuse discretion Services, Inc. CDC affirm. Schenck, Ashby, Danny S. David John Luce, Kern, Black, Hughes Heather & Bert I. Dallas, TX, for Chemical Manufacturers delivery employed T. was as a Bob Moore the U.S. Chamber of Commerce of Ass’n and Freightways, truck for Consolidated driver Jr., Young, Liability Ad- Hugh F. Product (“Consolidated”), freight compa- Inc. a motor Council, VA, Reston, Mary visory Alice 23,1990, morning April Moore ny. On the Brooks, Jr., Wells, Wells, L. Michаel manu- several drums of chemicals delivered Denver, CO, Rice, for Product Anderson & (“Dow”) Corp. Corning factured Dow Council, Liability Advisory Inc. (“Ashland”) Inc.’s terminal Ashland Chemical opened the back in Houston. When Moore Jr., Irwin, Quentin Urquhart, B. F. James trailer, he smelled a chemical door of his Orleans, LA, for Ass’n of New Louisiana suspect that a him to drum odor that caused Counsel, Curiae. Defense Amicus plant and the Ashland leaking. was Moore Meunier, Gainsburgh, Ben- Gerald Edward Graves, leaking Bart identified two manager, Meunier, Warshauer, David, jamin, Noriea & them from the trailer. drums and removed Orleans, LA, Trial Law- New for Louisiana requested Dow and Mr. Graves contacted Ass’n, yers Amicus Curiae. cleanup copy and a of the mate- instructions (“MSDS”) Kaufman, Foster, safety for the rial data sheet Douglas Ed- Martin S. Foundation, Lewis, III, spilled The MSDS identified Legal chemicals. win L. Atlantic Buffler, haz- Adair, leaking drum and health City, Angelí, contents York for New Cormack, Hamilton, Holton, the contents.1 The Langer, associated with Leder- ards NAPHTHA, PETROLEUM, LIGHT provided, pari, SOLVENT as follows: 1. The MSDS ... ALIPHATIC CORNING(R) 1-2531 MATL NAME: DOW ISOBUTYLISOBUTYRATE RELEASE COATING ... GLYCOL METHYL ETHER PROPYLENE OF OVEREXPO- SECTION III —EFFECTS II—HAZARDOUS INGREDIENTS SECTION SURE ... AS DEFINED IN 29 CFR 1910.1200 ... TOLUENE the chemical in- reported physicians solution Moore to his MSDS stated he ingredients, notably most approximately pack hazardous had smoked ciga- cluded depending upon day approximately It warned rettes a twenty years, Toluene. and duration fumes and he continued to level smoke at the time of chemicals, injury irritation or reported April trial. He also that on organs, including lungs, exposed could when he various to the Dow chem- ical, just he had following result. returned to work pneumonia. bout with Moore also related a cleanup and Graves obtained Moore After history of treating childhood asthma to his instructions, they put leaking drums into physician. salvage drums. Moore and another larger employee proceeded then Moore and his wife against Consolidated filed suit Ash- Chemical, Inc., spilled Oil, Inc., material on the place chem- land absorbent Ashland icals, up, others, sweep dispose them primarily grounds them. that Ashland engaged in cleanup were this for negligent insisting The men expose Moore to forty-five vapors minutes an hour. After the by himself to created the chemical cleanup, spill. specifically, Moore returned to the Consolidated complained More Moore tidal, Graves, At he testified that about an employee, terminal. that Ashland’s Bart should finishing cleanup, began permitted hour after he have Moore to return to Consoli- dizziness, experiencing symptoms, including terminal employees dated’s where other eyes, difficulty watery breathing. up spill. could have cleaned He also However, drop Moore was complained able to off another permit Graves did not him requested by trailer as respirator during Consolidated his su- to cleanup. use Ash- pervisor. land removed the suit to federal court on the diversity jurisdiction. basis of completed delivery,

When he this Moore returned Consolidated’s terminal and discovery told After extensive prac and motion supervisor super- his that he was sick. dealing particularly tice with whether company sent expert visor Moore to the doctor. physicians, Moore’s Dr. Jenkins and day, family physi- Alvarez, The next Moore saw his Dr. permitted would be testify, After cian. two to three weeks of treatment proceeded the case to trial jury. before a At family physician, placed trial, Moore him- jury the conclusion of the answered Simi, pulmo- self under the care of a Dr. follоwing interrogatory negative: in the nary specialist. find, Dr. you Simi released Moore to preponderance “Do from a of the June, day evidence, return to work on the 11th negligence, any, if of the working days, After several person Moore terminat- proximately named below caused the employment (b) ‍‌‌‌​‌​‌‌‌​​‌‌‌​‌‌​‌​‌‌‌‌‌‌‌​‌​‌​​​‌‌​‌​​​‌‌​‌​​‌‍difficulty ed his due to injury question: breath- ... Ashland Chemi ing. cal, On Oil, three occasions in the summer of Inc. Ashland Inc.” Thereaf and/or ter, Moore also consulted Dr. Daniel E. the distinct court nothing entered a take Jenkins, pulmonary specialist. judgment against Dr. Jenkins appeal, Moore. On a divid diagnosed Moore’s panel condition as reactive air- ed of this Court concluded that ways dysfunction syndrome (“RADS”), an district court refusing had erred in to allow Jenkins, asthmatic-type condition. In November of Dr. experts, one of give Moore’s pulmonary Moore illness, consulted another on the cause of Moore’s specialist, Alvarez, Dr. B. Antonio who be- judgment and reversed the district court’s primary treating physician. came his Dr. and remanded the case for a new trial. Chem., Inc., Alvarez Dr. diagnosis confirmed Jenkins’s Moore v. Ashland 126 F.3d 679 (5th Cir.1997). treated Moore for RADS. granted We rehearing INHALATION: SHORT EXPOSURE VAPOR MAYCAUSE DROWSINESS AND IRRITATE COMMENTS: PROLONGED TOLUENE BLOOD, NOSE AND THROAT. VAPORS MAYINJURE OVEREXPOSURE MAY INJURE BLOOD, LIVER, LUNGS, KIDNEYS, LIVER, LUNGS, KIDNEYS, AND AND NERVOUS NERVOUS SYSTEM. DEGREE OF EFFECTS SYSTEM AND MAY AGGRAVATE EXISTING EYE, SKIN, DEPENDS ON CONCENTRATION AND AND RESPIRATORY DISOR- LENGTH OF EXPOSURE. DERS. clarify report study with a of a co-au- en banc and to RADS consider this case apply in de- thored Dr. Stuart Brooks that he found in district courts should standards to admit testimo- termining magazine.3 study a medical One ease ny. report exposed involved a clerk who was to a small, in a

Toluene mixture enclosed room II. and one-half two hours. Dr. Jenkins initially deposition stated in his that he knew trial appeal we focus on the court’s reported supported of no literature that permit refusal one of Moore’s medical his in limine tes- opinion. During Jenkins, witnesses, give Dr. Daniel E. timony presence jury outside the the cause of Moore’s illness. trial, Jenkins, time, pointed Dr. for the first procedural background is Some factual and study to the Brooks relied on Dr. Alvarez. necessary arguments to understand parties. Dr. Jenkins admitted that Moore was his call two wit- sought Moore medical patient history expo- first RADS with a nesses, Antonio Alvarez. Dr. Jenkins and Dr. sure to Toluene. He had no re- conducted Jenkins, well-qualified special- subject. pre- search on this Dr. Jenkins had ist, by the American Board of was certified viously patients treated other whose RADS spe- Internal Medicine 1947. He also had exposure he attributed to to chemicals that training taught pul- in cial the fields airways. to were known irritate the Howev- disease, monary allergy, environmental er, he that the chemicals conceded involved Moore on three medicine.2 Dr. Jenkins saw previous patients stronger with these were Moore, performed a occasions. He examined irritating and more than the Toluene solution tests, medical series of and reviewed Moore’s exposed. to which Moore was Dr. Jenkins He that Moore was suf- records. concluded explain made to how attempt no of the fering upon his examina- from RADS. Based chemicals he believed caused tests, expressed tion Dr. Jenkins patients properties in his earlier RADS had opinion that had been caused Moore’s RADS similar to the Dow Toluene solution. exposure vapors Moore’s spill facility April in chemical Ashland’s court, reviewing after Dr. Jen- 1990. We will discuss later more detail to his in li- deposition listening kins’s assigned the reasons Dr. Jenkins for his mine testimony, decided to exclude his cau- opinion. Generally, upon hе relied opinion. permit sation The court did Dr. MSDS, which warned testify about his examination of Jenkins Toluene solution could be harmful to the Moore, conducted, diag- the tests he and the results, lungs, his examination test only nosis he reached. The feature of Dr. close, temporal connection between testimony Jenkins’s the court excluded was exposure to Moore’s the Toluene solution and his that the Toluene solution caused symptoms. the onset of Moore’s The district court concluded RADS. that Dr. Jenkins had no scientific basis for Alvarez, Dr. who was former student Jenkins, opinion, sufficiently that it reli- was agreed Dr. with Dr. Jenkins about 702, able under Fed.R.Evid. and that it Dr. Alvarez the cause of Moore’s RADS. was gatek- would be inconsistent with the court’s primary treating physician. Moore’s In addi- Jenkins, role under Daubert to admit this eeper opin- tion to the relied Dr. reasons supported theory Dr. ion. Alvarez of causation 1947, agree qualifi- spent forty-four years The Defendants that Dr. Jenkins’s 1943 he outstanding. 1991, cations are He served residencies faculty Baylor Medical School. In he medicine, tuberculosis, in internal and chest dis- practice group with a went into Houston allergy, ease and and was certified the Ameri- physicians specializing respiratory ailments. can Board of Internal Medicine in 1947. After serving as Chief Resident in Medicine and Assis- Brooks, ah, Airways et 3. Stuart M. M.D. Reactive Physician Medicine and tant Professor of (RADS), Dysfunction Syndrome 88 Chest 376 Charge the Tuberculosis and Chest Unit at the (1985). University Michigan Medical School from Dr. III. court decided admit

The district though even it Alvarez’s causation A. Dr. essentially identical Jenkins’s proffered opinion. The district court was Fortunately, Supreme Court re opin- that Dr. Alvarez’s apparently cently convinced disаgreement among resolved a reviewing to Moore’s circuits about the standard linking ion the RADS or exclusion of ex district court’s admission solution was more reliable than the Toluene pert testimony. In General Electnc Co. v. Dr. Dr. because Alvarez Jenkins’s - Joiner, -, 512, U.S. 118 S.Ct. physician, treating had been the and also (1997), L.Ed.2d 508 the Court held that we outset on because he had relied should review such decisions for an abuse of sup- study and therefore had some Brooks evaluating In discretion. whether the dis port from the scientific literature for his excluding trict court abused discretion verdict, conclusion. In view of the the De- causation, Dr. Jenkins’s challenge the district court’s fendants do Court’s decisions opinion. to admit Alvarez’s decision Pharmaceuticals, Inc., Merrell Dow 509 U.S. Thus, pre- propriety ruling of this is not (1993), 113 S.Ct. 125 L.Ed.2d 469 us for sented to review. analysis. and Joiner control our single expert, Dr. Robert defense DaubeH, the lower courts consid Jones, was the third medical witness to testi- admissibility expert ered fy. upon Based his review on medical causation. The witnesses records, Dr. Jones concluded that Moore did Bendeetin, sought testify ingestion RADS; rather, according not have to Dr. prescription drug, by anti-nausea several Jones, Moore suffered from a form of bron- mothers birth in their chil caused defects chial Dr. Jones further asthma. testified dren. The lower courts excluded the evi in that the the case was insufficient evidence experts’ on the that the dence basis meth expo- him to conclude that Moore’s allow odology generally accepted was not pulmonary prob- sure to Toluene caused his community had not been sub and Dr. Court, lems. Jones’s conclusion was reinforced jected peer Supreme review. Thе Blackmun, history, speaking through Moore’s medical which included Justice first doctrine,”4 “Frye requir concluded that the thought conditions that Jones were much theory generally accepted that a in be likely triggering agents more for RADS. community the scientific before it can be history These conditions Moore’s as included expert’s opinion, the basis of an was not a heavy approximately twenty smoker for principle controlling in federal trials. Dau asthma, years, history and his recent bert, 589, at U.S. S.Ct. 2794. pneumonia. bout with Dr. Jones also testi- Blackmun Justice then turned to Rule 702 fied that the scientific literature revealed of the Federal Rules of Evidence5 and the that Toluene similar substances have a proper admissibility test for of scientific evi potential causing injury except lung low dence. when high dosages encountered such Frye That displaced by test was person passes is overcome out. however, mean, Rules of Evidence does background, With this we now turn to the place that the Rules themselves no limits presented by appeal: issue whether the admissibility purportedly on the scienti- excluding district court erred in Dr. Jen- judge fic evidence. Nor is the trial dis- testimony. kins’s screening abled from such evidence. To Stales, (D.C.Cir. Frye v. United F. 1013 stand evidence or to determine a fact 1923). issue, qualified expert by as an witness skill, knowledge, experience, training, or edu- provides: 5. Fed.R.Evid. 702 cation, may testify thereto in the form of an scientific, technical, specialized If or other opinion or otherwise. knowledge will assist the trier of fact to under- requires Rule 702 contrary, under the Rules the trial further that the evi- testimony any all scienti- dence or “assist the trier of fact judge must ensure that to understand the evidence or to determine testimony evidence admitted is not fic or relevant, goes pri- a fact issue.” This condition only but reliable. “Expert marily to relevance. obligation primary locus of this is The any which does not relate to issue in the clearly contemplates Rule some which and, ergo, non-helpful.” case is not relevant subjects degree regulation expert may testify. theories about which (citation Id. at at 2795 omit- S.Ct. technical, scientific, specialized or other ted). proceeded then Court enumer- “If knowledge will assist the trier five-factor, non-exclusive, ate a flexible test of fact understand the evidence or to determine assessing for district courts to when consider expert “may testify fact issue” an there- scientifically whether the val- subject expert’s testimony to.” The (1) id or reliable. These factors include: knowledge.” ... must be “scientific expert’s theory whether the can be or has implies adjective grounding “scientific” (2) .tested; theory been whether the has been procedures the methods and of science. (3) subject peer publication; review and Similarly, “knowledge” the word connotes potential the known or rate of error of a subjective unsupported more than belief or (4) technique theory applied; or when speculation. “applies The term existence and maintenance of standards and body any body of of known facts or to controls; degree to which the accepted ideas inferred from such facts theory generally has been ac- technique grounds.” good as truths on Webster’s cepted community. in the scientific Id. at Dictionary Third International New 593-95,113 S.Ct. 2796-97.6 (1986). course, it Of would be unreason- by pointing Court concluded subject able to conclude scienti- important out that differences exist between to a fic must be “known” cer- truthseeking in the courtroom and tainty; arguably, there are no certainties laboratory: But, qualify in science. in order to subject per- Scientific conclusions are knowledge,” “scientific an inference or as- Law, hand, petual revision. on the other sertion must be derived the scientific disputes finally quickly. must resolve Proposed testimony sup- must method. be project The scientific is advanced broad i.e., ported by appropriate validation — wide-ranging multi- consideration of a “good what is grounds,” based on known. hypotheses, in- tude of for those that are short, expert’s requirement In the that an so, eventually will be shown to be correct testimony pertain knowledge” to “scientific Conjec- and that in itself is an advance. evidentiary relia- establishes a standard probably wrong tures that are are of little bility. use, however, project reaching in the Daubert, 589-90, at 113 S.Ct. at 509 U.S. quick, binding legal judgment— final and (internal original) in (emphasis cita- great consequence par- often of —about past. omitted). tions rec- ticular set of events the We that, ognize practice, gatekeeping role

The Court stated further that: position University panel majority at School of Medicine and 6. The took the that be- the Yale peer- than 375 author and co-author of more cause Dr. Jenkins's causation was not texts, science,” reviewed and five scientific includ- articles predicated on "hard it was therefore Judgment. ing Clinical subject standards to Daubert's for admissibil- (cid:127) ity. disagree. We Daubert and Joiner both in- event, is in this Circuit In questions of medical causation. As one of Daubert, volved governed by even Fеd.R.Evid. 702 and brief, filed an amicus Profes- the scientists who though grounded in "hard the is not Feinstein, words, "In other science,” sor Alvan R. stated: assuming In such a distinction exists. determining etiology Telsmith, Inc., (5th the of a disease—its cause— 984 Cir. Watkins v. 121 F.3d exercise, 1997), the rejected position application involves the same scientific the we clinician, epidemiolo- decision is made unwarranted in cases of the Daubert factors is Feinstein, expert testimony solely experi gist, or other scientist.” Brief of Dr. where is based Sterling Epidemiology training. ence or Id. at 988-90. Professor of Medicine 276 flexible, judge, no matter how inevi- must scientifically princi-

for the be based on valid prevent ples. tably jury occasion will the learning authentic insights Joiner, term, Last in General Electric Co. v. innovations. - U.S.-, 512, 118 S.Ct. 139 L.Ed.2d 597,

Daubert, (1997), at at 509 U.S. S.Ct. 2798- Supreme gave help the Court us permit remanded the case to insight 99. The Court ful application into the of the Daubert Joiner, rulings principles. to evaluate their sued, lower courts In plaintiff multi-factor, claiming flexible test it had light lung that his small-cell cancer was just caused polychlorinated announced. (“PCBs”) biphenyls workplace. The Proeedurally, Daubert instructs us plaintiff expert testimony offered to establish court must determine district admis theory. his causation The district court sibility following under Rule the di testimony ruled that scientifically 104(a).7 provided Rule rections Rule unreliable proffered and refused to admit the 104(a) requires judge prelimi to conduct evidence. The Eleventh Circuit Court of nary fact-finding “preliminary and to amake Appeals simple reversed and held that reasoning assessment of whether abuse of discretion standard of review did methodology underlying testimony' is sci rather, apply ruling; particular “a entifically valid and of whеther that reason ly stringent applied standard of review” “to ing methodology properly applied can be trial judge’s expert exclusion of testimo to the facts in issue.” U.S. ny” that resulted the dismissal of the suit. 592-93, 113 S.Ct. Co., 524, Joiner v. General Elec. 78 F.3d Thus, party seeking to have the (11th Cir.1996). Supreme The Court re expert court admit testimony must versed, holding that the usual abuse of dis expert’s findings demonstrate that cretion generally applied standard to eviden- conclusions are based on the scientific meth tiary rulings applied also to the admission or od, and, therefore, are reliable. This re expert exclusion of testimony. General Elec. objective, - quires independent some validation Joiner, -, Co. v. U.S. 118 S.Ct. expert’s methodology. expert’s (1997). 139 L.Ed.2d 508 assurances that has generally he utilized ac Court’s treatment of several argu of Joiner’s cepted is insufficient. ments is instructive to both trial courts and Daubert v. See Merrell-Dow Pharmaceuti appeals courts of admissibility area of cals, Inc., (9th Cir.1995) expert testimony. (on remand). proponent prove need ‍‌‌‌​‌​‌‌‌​​‌‌‌​‌‌​‌​‌‌‌‌‌‌‌​‌​‌​​​‌‌​‌​​​‌‌​‌​​‌‍not emphasized court, The Court that a district judge expert’s is acting gatekeeper while as a evi- correct, prove by preponder but she must dence, must evaluate whether there is an ance of the evidence that adequate “fit” between opin- the data and the reliable. See re Paoli R.R. Yard PCB Joiner, proffered. ion 118 S.Ct. at 519. One (3d Litigation, Cir.1994); 35 F.3d 717 see experts’ bases for the opin- Stephen al„ A. also SaltzbuRG et Federal ion in Joiner was animal studies on the ef- (7th 1229-40' Rules of Evidenoe Manual injected fects on rats large doses of ed.1998). In analyzing PCBs. argument, Joiner’s the sum, Court observed that the law cannot wait for future [rjather investigation scientific We explaining research. than why how and the must resоlve cases in our courts on experts the basis extrapolated opin- could have their knowledge scientific that currently is avail seemingly ions from these an- far-removed inquiry able. studies, The authorized Rule 702 imal respondent is proceed chose to one; however, opinion, flexible only as if the issue [was] whether animal evidentiary to have reliability, relevance and studies can proper ever be a foundation for 104(a) provides: 7. Fed.R.Evid. privilege, admissibility tence of a or the court, Preliminary questions concerning qualifi- the evidence shall be determined the witness, person cation of a subject provisions (b). to be a the exis- the to of subdivision course, opinion. Of whether He claims that because the District expert’s an Court’s proper disagreement can ever be a foun- was conclusion animal studies with the that studies, expert’s opinion the dation an was not experts drew from the the the was these ex- issue. The issue whether legal Court error District committed perts’ opinions sufficiently supported were properly by the Court was reversed they pur- studies on which the animal Appeals. But conclusions and methodolo- ported rely. The studies were so dis- entirely to from one anoth- gy are distinct presented litiga- similar to the facts experts commonly extrapolate Trained er. an tion it was not abuse of that discretion existing nothing data. But either rejected [sic] for the Court to have District or the Federal Rules Evidence experts’ reliance them. requires a district to court admit which is existing evidence connected to (internal quotation Id. at and citation only by ipse expert. data dixit of the omitted). may A simply conclude that there is published next four Court considered analytical great gap too between the epidemiological prof- studies on which opinion proffered. That data and experts fered relied to determine here, District what the Court did and we they provided a sufficient for the ex- basis that it hold did abuse its discretion in perts’ opinion. The Court observed that doing. so studies, finding authors first two while (internal among that of cancer former the rate deaths Jojner, S.Ct. citations employees omitted). plants where workers were ex-

posed higher might to was have PCBs than expected,

been concluded that nevertheless B. apparently grounds “there no for asso- were background, With this we turn ciating lung (although cancer in- deaths apply evidence in this case to record expectations) exposure creased above Supreme Court’s directives in’ Daubert and Joiner, (citation plant.” 118 S.Ct. at 518 Joiner, determine whether omitted). given The Court concluded excluding court abused discretion Dr. that the authors of the article were “unwill- testimony. Jenkins’s say exposure that PCB had caused pointed following sup- examined, Jenkins among they cancer the workers (1) port for his causation conclusion: study support experts’ their did not con- from Dow MSDS warned clusion that Joiner’s to PCBs could fumes Toluene solution cause caused Id. at his cancer.” 518.8 The Court (2) lungs; injury Moore had onset studies, remaining next to the two referred shortly exposure to symptoms after his one which made no mention PCBs (3) solution; although Dr. Toluene Jenkins PCB-exposed group in which the article, initially rely Brooks did not on the subjected poten- had also been to additional trial by it was called to his attention at when tial carcinogens. Court observed counsel, knowledge he did claim to have district court entitlеd to conclude it; the article and stated that he had relied help were no these studies likewise (5) training experience; and his experts supporting opinions. Id. their test examination and results. at 519. concluded its discussion of Join- Court The district court was entitled conclude arguments

er’s as follows: opin- that the above bases for Dr. Jenkins’s individually collectively points to lan- were and inade-

Respondent Daubert’s ion “focus, course, First, guage Daubert. Dr. quate that the must be under Jenkins’s experience solely methodology, training his examination principles and and and tests, above, 4 they generate.” items and 5 were obvious- the conclusions analysis by particu- in Joiner. 8. This Court is self-doubts as the studies Dr. same larly study any relevant to our case. Brooks Brooks was unable to reach conclusions ' upon by isolated relied Dr. Jenkins based on his studies. suffered 278 However,

ly important diagnosis. to his Dr. The district court was also correct in view gave skepticism why Jenkins no reason these items Dr. reliance on Jenkins’s helpful reaching temporal proximity exposure were in his conclusion on between the Enter., injury. causation. He admitted that he had never Cavallo Star 892 (E.D.Va.1995), F.Supp. previously part, 756 in patient treated a who 100 had been aff'd. (4th Cir.1996), helpful F.3d 1150 contains a exposed to a similar Toluene solution. Dr. case, discussion of In that this issue. highly qualified pulmonary Jenkins was a plaintiff alleged respiratory but, that she suffered specialist, as the Seventh Circuit ob- exposure jet illness as a result of to aviation Corp., Ciba-Geigy served Rosen v. 78 F.3d (7th vapors. proffered expert fuel Cir.1996), relied regime 316 “[u]nder the substantially temporal proximity on the be judge asked to admit sci- exposure symptoms. tween The court entific еvidence must determine whether the sup concluded that this reliance was “not scientific, genuinely evidence is as distinct ported by appropriate required validation” as being speculation unscientific offered Daubert, “ultimately and was unreliable.” (internal genuine scientist.” Id. F.Supp. The court observed that omitted). citation although may “there be instances where the article, respect to With the Brooks item 3 temporal exposure connection between to a above, the authors made it clear that their given subsequent injury chemical and is so speculative conclusions were because of the compelling dispense as to with the need for Also, study. limitations of the single reliance on of toxicology,” standard methods fumes, study involving exposure to Toluene this was not such a Id. at ease. 773-74. The exposure level and duration of the pointed plaintiff out that the in Cavallo greater exposure. several times than Moore’s jet was not doused with fuel and that there for Dr. opin- bases Jenkins’s causation exposure jet was no mass many fuel to ion are therefore following: reduced to the people symp who turn suffered similar (1) the Dow MSDS from which Dr. Jenkins toms. In the absence of an established sci gleaned could have contents exposure entific connection between ill irritating drum were lungs to the at some ness, compelling circumstances such as exposure; relatively level of short Cavallo, those temporal discussed con time exposure between Moore’s to the chemi- exposure nection between to chemicals and cals breathing difficulty. and the onset of his symptoms, alone, standing onset weight entitled to little determining causat The district court was entitled to find that ion.9 the Dow MSDS had limited value to Dr. First, Jenkins. Dr. Jenkins admitted that he Dr. support Jenkins offered no scientific did not know what tests Dow general theory exposure had conducted for his to Tolu- Second, in generating per- the MSDS. ene solution at level would cause RADS. haps importantly, more Dr. Jenkins had no Because he had no accurate information on information exposure fumes, on the level of exposure neces- the level of Moore’s sary person injuries for a necessarily sustain the support Jenkins had no about which the theory MSDS warned. The MSDS the the level of chemicals to made it clear that the effects of exposed to which Moore was caused RADS.10 depended Toluene attempt the concentration and Dr. Jenkins explain made no length exposure. by asserting conclusion that the Toluene so- Labs., Inc., 9. See also Porter v. exposed could cause RADS in a worker to some Whitehall (7th Cir.1993); Stephen A. Saltzburg minor level of the solution. Under "any al„ et (7th of Evidence Manual step analysis that renders the Federal Rules unreliable ... ren- ed.1998). expert's testimony ders the inadmissible. This is step completely changes true whether the a reliable paucity 10. Given the of facts Dr. Jenkins had methodology merely misapplies that methodolo- available about the level of Moore's gy." Litigation, In re Paoli R.R. Yard PCB solution, Toluene his causation (3d Cir.1994) (emphasis origi- F.3d nal). suspect would have been even if he had scientific support position for the that the Toluene solution

279 knowledge was not similar to another based on scientific that properties had lution required by which RADS had been would assist the trier of fact as chemical tо post-Daubert scientifically Several Rule 702 of Rules of linked. the Federal Evidence. leaping about from an cases have cautioned premise unsupported to an accepted scientific CONCLUSION Pfizer, Inc., 31 v. F.3d one. See Wheat give the progeny Daubert and its district (5th Cir.1994); Braun see also v. Loril “keep gate” court discretion to (7th Cir.1996); Inc., 230, 235 lard opinion admitting excluding purpose 1319; Cavallo, F.3d at ease, testimony. In this the district court did F.Supp. support To a conclusion concluding in not abuse that discretion that extrapolation or reasoning, based such proffered causation Dr. evidence Jen- to another be leap from one chemical must should It was within the kins be excluded. scientifically valid. See Dau reasonable and judge’s to conclude that Dr. discretion Jen- bert, 1319-20; Cavallo, 43 F.3d at grounded not kins’s was science F.Supp. at 769. and, progeny, required and its as Daubert end, relegated was In the Dr. Jenkins therefore, sufficiently was reliable for the not any position his fall-back irritant to the jury to therefore affirm the consider. We lungs susceptible could cause RADS judgment of court. the district sup- patient. Dr. cited no scientific Jenkins AFFIRMED. theory. None of

port for this Daubert’s opinion factors assess whether KING, Judge, concurs in the Circuit result principles based on was met. sound scientific tested; by majority. reached theory not been Dr. Jenkins’s had theory subjected peer not been had BENAVIDES, Judge, specially Circuit potential publication; review or rate concurring: or applied; error had been determined Although join reasoning I both theory generally ac- and the had not been opinion, I write majority sepa- sum, result cepted community. In the scientific that, rately to reiterate under General Elec- support Dr. cite no scientific Jenkins could — -, Joiner, U.S. exposure to tric Co. S.Ct. for his irri- conclusion (1997), the issue L.Ed.2d 508 before triggers tant at asthmat- unknown levels magistrate judge us is whether the abused ic-type re- condition. Under excluding encouraged her discretion trial are gime, courts exclude I this case be Dr. Jenkins. believe speculative testimony lacking any While such one, magistrate I that the agree a close must validity. in excluding judge acted within her discretion was also district court entitled It testimony. proffered Dr. Jenkins’s does personal conclude that Moore’s habits however, this, that she not follow from would history theory Dr. made Jenkins’s by admitting the have abused her discretion more Moore had even unreliable. been contrary, had proffered testimony. On heavy twenty years. smoker for moderate to I testimony, would likewise she admitted the addition, just pneu In recovered from he had opinion that she acted within her be of contact shortly monia before his with the majority opin- I do not read discretion. Finally, chemicals. Moore had suffered require ion otherwise. (a RADS) very similar to asthma condition youth. DENNIS, Judge, with whom Circuit sum, court did abuse district STEWART, Judges, PARKER and Circuit “analytical finding gap” discretion join, dissenting: opinion causation between Jenkins’s respectfully I dissent. knowledge and data the scientific available conflicts en banc support was too advanced to circuits, a state the view of other court to con- with wide. was entitled resort, scholarly commentary, in last clude Dr. Jenkins’s (a) holding expert Supreme and, a clinical medical can clarify Court to whether if express opinion so, not an as to a causal how, relation applies Daubert to expert ship comрound between a chemical and a knowledge by disciplines based on derived disease, plaintiffs although opinion is sources other than E.g., the hard sciences. application generally based on the sound Gold, Wright 29 Charles A. and Victor J. accepted methodology, clinical medical unless § PROCEDURE FEDERAL AND PRACTICE by link is confirmed causal hard (1997); Graham, 2 Michael H. HANDBOOKof factors1, per the Daubert see 702.5, pp. § (Supp. Federal Evidence Pharmaceuticals, Daubert v. Merrell Dow 1998). Inc., 579, 593-94, 2786, 125 U.S. S.Ct. (b) (1993); temporal L.Ed.2d 469 rela (a) tionship between chemical and symptoms of disease are to be accorded little majority opinion represents The an eccen- weight by in assessing expert’s courts an tric fragmentation additional Daubert determination of causation with either clinical picture that underscores the need for Su- (c) methodology; medical or hard science preme guidance. Court This circuit now expert sup even when an has hard scientific position takes the that a clinical medical ex- port general relationship causal be pert, correctly using applying generally and compound particular tween a chemical and a accepted methodology, may clinical medical disease, specific his of a causal rela express par- as to whether a tionship compound between the indi caused, compound ticular chemical aggravat- “suspect” vidual’s disease is unless the ed, person’s to a contributed disease or scientifically also has accurate data as to the disorder unless that is person’s exposure level of that corroborated to the chemi by compound; cal hard scientific mеthodology passes conflicts by conducting Court decisions application de novo trial rigid muster under a of the Dau- preliminary hearing assessment on the factors. bert record, substituting its ruling own erroneous majority’s applies rule single even to court, and reasons for those of the district plaintiff negligence actions that do not in- disregards the district court’s errors volve alleged substances to cause diseases law, clearly findings, erroneous factual large persons numbers of having or diseases abuse of discretion. long latency periods. The en banc opinion emanates from a case which a 1. single plaintiff have'developed claims to After federal courts have become airways reactive disorder as a result of a important questions balkanized on that con- defendant’s negligence causing him to judges daily, e.g., front federal trial whether up a spillage compound clean of a chemical applies outside the field of hard taking any safety precautions. without science; so, if gatekeep- whether Daubert’s provide defendant plaintiff refused to applies function any to the admission of respirator with a or to measure the air con- or all of the types expert testimony; safety tamination with a so, although meter if application of the Daubert ready defendant had both devices at hand. required “factors” in the admission of plaintiff required or all to work in and knowledge based on around an derived enclosed 28-foot trailer for about methodology. hard scientific present cleaning up Even before the an hour in opin- spilled en banc circuit chemical present ion there was a compоund. clear and need for Evidently, majority interprets examinations, tory taking, physical the final Dau- differential factor, "general acceptance,” accep- bert etiology (conducting diag- mean tests to eliminate other disease), tance within a relevant patient's "hard scientific” commu- noses causes of the nity. undisputed For it is physicians' reports general- methods review of other were techniques ly accepted used Dr. Daniel Jenkins to deter- within the doctor’s own clinical med- mine that Mr. disciplines pulmonary Moore's RADS had been caused ical and environmental compound, to the chemical i.e. his- medicine. situations, provide epidemiological, animal many in Mr. to be able to torts toxic Unlike latency testing other scientific link a hard evidence long was not case there Moore’s particular compound the chemical to symptoms of between the onset period airways disease. See Zuchowicz v. reactive al- compound gases that were chemical the (2nd States, 381, United his illness. The onset leged to have caused Cir.1998)(described infra.). plaintiffs respiratory disease occurred of the exposure during an his than hour after less majority Although recognizes the en banc He up compound. of chemical his clean the involving compounds cases chemical that immediately emergency medical sought subjected to which have not been hard scien- treatment, oxy- being given which included testing timely must tific be resolved and his he under treatment gen, and has been fortuity cannot await the of relevant scientific particu- respiratory ever since. The majority disease experimentation, the nevertheless рlaintiffs of the inhalation every lar circumstances that causa- insists admissible medical so injury, with the fact that opinion injury combined few in a tion chemical case must subjected science, have to a similar humans ever been factor have hard related a involved, compound exposure to chemical the If such hard scientific data is not basis. available, decrees, obviously impacted the in which majority plaintiff on manner the a plaintiff prove summary The trial or the could causation. must face the defendant’s persons type of motion medical quantity judgment of who sustain this without a causation simply plaintiff expert was too small for a witness.2 Daubert, judge gatekeeper must determine that the Court stated: as the proffered only is hard science evidence not rele- subject perpetual arc to Scientific conclusions appli- a Law, hand, vant but also reliable as based on sound revision. on the other must re- expert's methodology the of the disci- cation of disputes finally quickly. scienti- solve The pline suggested ways, based on basic several project wide- fic advanced broad and methodology, hard a hy- elements of science that ranging of a of consideration multitude party proffers expert proposes who who potheses, for that are correct will eventu- those so, testify opinion that ally to a hard scientific can show is an be shown to be that in itself or, probably wrong opinion reciprocally, a Conjectures the is reliable advance. that are however, use, opinion’s reliability. project little of can use to test the are of the court reaching judg- ways testing showing reliability quick, binding legal a final Thоse consequence great opinions a become as ment—often hard scientific have known —about past. recog- particular We the "Daubert factors.” But the Court did not set of events that, require gauges reliability practice, gatekeeping these nize role for intend to flexible, expert testimony. judge, inevitably applied monolithically to all the no matter how be propose testify prevent jury learning to an of When the does not occasion will from methodology, insights opinion authentic and innovations. based hard scientific reliability his Court indicated that 509 U.S. 113 S.Ct. 2786. pas- opinion quotes opinion according should be assessed The en banc this page proceeds expert’s discipline. sage it on own 275-276 and to stand indicate, page interpreting did court is head on Daubert court decide, upon supporting majority's prop- what a trial court words not called Court’s as by proffers experts although proof hard should do if it is confronted osition scientific directly conflicting always propose testify medical will not be available in who cases, causation, quickly opinions injury as to one based chemical resolved; the cases must be cases, therefore, injury methodology and the based chemical if hard scientific only methodology. plaintiff produce In such can clinical medical on clinical medical case, likely experts opinions solely court find whose are based on well it is that the trial should accepted they expert’s if methodology, clinical medical unreliable clinical medicine distinguish ex- take account and must face trial without a medical causation it fails to into pert expert’s opinion аnd scientific its basis witness. hard data, expressed if the court finds the latter to The Daubert neither nor im- hard scientific Court suggest, plied Being reliable. ‍‌‌‌​‌​‌‌‌​​‌‌‌​‌‌​‌​‌‌‌‌‌‌‌​‌​‌​​​‌‌​‌​​​‌‌​‌​​‌‍The Daubert Court did no such draconian rule. confronted be however, au- involving admissibility Rules of Evidence a case of hard Federal rule, opinions, gen- epidemiological expert a federal to formulate as thorize science that, effect, field, done, accepted proffered prove majority'has bars a erally en banc in that expressing physician Bendectin could have caused birth defects in clinical drug, probable causation of a disease used the the Court chemical children whose mothers specific of a individual until existence that the evidence could not be exclud- concluded relationship Frye superseded general has been confirmed which causal ed under rule Evidence, methodology. trial use of hard the Federal Rules of but that the majority opinion creates a negligent schism be- overdose Danocrine had been tween this court and other circuits and a responsible pulmonary for the disease relat- disregards state court of last resort and plaintiffs ed death of the wife. The doctor teachings of federal evidence law scholars. temporal based on the relation- ship between the overdose and the start of Second, Fourth, and Third Circuits disease, apparent good the deceased’s physician may, have held that a clinical con- overdose, prior health to the and the differ- sistently express opinion, etiology ential excluding method of methodology gener- clinical medical based on possible causes. Id. at 385. He аlso testi- ally discipline, accepted within that that a fied that Mrs. Zuchowicz’sillness was similar particular pa- toxic substance caused the onset, timing development and course of death, without tient’s disease hard scienti- pulmonary other cases of known diseases applica- fic corroboration under an inflexible have been drugs. caused other classes of tion factors. of the Daubert Id. at 385-86. There had been no scientific H.B. Second Circuit McCulloch v. dosages tests to determine the effects of (2nd Co., Cir.1995), Fuller 61 1038 F.3d re- Zuchowicz, the level received Mrs. jected argument the defendant’s for exclu- opinion causation, the doctor’s as to medical physician’s opinion, sion of a clinical as scien- solely methodology, based on clinical medical unfounded, tifically glue that fumes caused by any was not confirmed hard science or plaintiffs respiratory symptoms strict Daubert factor evidence. See also Am- polyps. opinion throat The doctor’s Labarraque, 129, brosini 101 F.3d 138 entirely upon based his use of clinical medical (D.C.Cir.l996)(stating that the fact that a methodology, without hard science or may type case be the first of its not should strict Daubert factor related basis. The doc- prevent plaintiffs a testifying doctor from as point tor single piece could not to a of medi- causation). cal glue literature that said that fumes cause polyps. throat describing the doctor’s use Similarly, the Fourth Circuit in Benedi v. of clinical vouching medical as McNeil-P.P.C., Inc., (4th 1378, 66 F.3d reliability opinion, for the of his the court Cir.1995), upheld plaintiffs recovery stated: damage severe liver resulting from his use of Fagelson [Dr.] based his on a Extra-Strength Tylenol contemporaneously factors, range including his care and with alcohol due to the negli manufacturer’s McCullock; treatment of her medical his- gent failure to Appeals warn. The Court of (as tory she related it to him and as de- rejected argument McNeil’s that the medical rived from a review of her medical and plaintiffs of the clinical studies; surgical reports); pathological re- physicians on methodology based of their MSDS; view training of Fuller’s discipline, microscopic such appear as experience; analysis use of a scientific liver, Tylenol ance of his found in his (which known as etiology differential re- blood, history days using several quires causes, listing possible then elimi- alcohol, Tylenol enzyme the liver blood nating one); all causes but and reference level, and the lack of evidence of a viral or to various scientific and medical treatises. failure, other cause of liver was unreliable Disputes as strength to the of his creden- they rely because not epidemi did have or tials, faults in his use of differential etiolo- ological data. The Benedi court stated: “We gy as a methodology, or lack of textual will not declare clinical [the medicine] meth authority opinion, go for his weight, odologies light invalid and unreliable admissibility, testimony. of his Id. community’s daily medical use of the same at 1044. Id.; methodologies in diagnosing patients.” States, also, In Zuchowicz v. Maryland United Casualty F.3d see Co. v. Therm- (2nd Cir.1998), O-Disc, Inc., (4th the Second Circuit reaf- 137 F.3d Cir. holding 1998)(“[T]his firmed its in McCulloch The Zu- position circuit has taken the chowicz approved the admission of a that formulating the Daubert court ‘was not pulmonary expert’s checklist,’ opinion that rigid ‘relying test or and was judges substantially identical the Daubert ability of federal criteriа on the instead Instead, ”)(citing Nenno court admissibility.’ factors. concluded determine properly 1384). four listed do F.3d at that “the factors quoting Benedi necessarily apply outside the hard Re R.R. in In Paoli The Third Circuit context; proving- methods of science instead (3rd Cir. Litigation, 35 F.3d 717 PCB Yard vary, upon reliability depending will the field 1994) physician’s method clinical held (citing expertise.” panel Id. at 561 sufficiently diagnosis was ology of differential case, present v. Ash Moore admissibility support reliable Chemical, Inc., land biphe- polychlorinated expert’s (5th Cir.1997)). (PCBs) plaintiffs’ specific illness nyls caused court, Although the in- heeding Paoli Daubert’s ad Nenno decision did not es. physician as to whether volve the of a clinical inquiry monition specific person, in a technique or method reliable is to cause disease particular one, 742, directly upon panel id. reasoned that “differ court relied Moore flexible at underlying principle to involve decision and diagnosis can be considered ential opinion (e.g. reliability of an testing hypothesis expert of witness’s ordi- a falsifiable cancer) plaintiffs narily judged by be it is a should that PCBs caused soundly grounded methodology in of the through attempt to rule out alternative Nenno, Thus, causes,” discipline. assessing expert’s per- it which although and “involves predict future particular experts to causation respect with to individ mits ual[,][t]his specific person harm merely type it a of without makes different criminal scientific, any designed produce support of hard strict Dau- than science to of science theories; type methodology, not it unrelia odds with general it does make bert factor Moreover, premise present the Pao- of the en banc science.” Id. at 758. ble physician’s opinion. that a clinical li court concluded diagnostic tech performance of standard manner, In similar additional cir federal niques provides prima facie evidence that principle conflict in with the en cuit decisions and has considered alternative causes doctor majority opinion’s in insistence on an banc hy attempted or initial has to test his her flexible, unthinking application of the Dau-

pothesis as to Id. cause. opinions on expert bert factors based Texas, Appeals knowledge methodology and of of outside The Court Criminal State, resort, Tyus E.g., of v. of hard science. v. Urban last Nenno realm state (7th (Tex.Crim. 549, 256, Management, F.3d Search 970 S.W.2d 1998 WL 331283 1998)(“This Cir.1996)(“Social 24, testimony, opinion like oth App. June has science ... be be publication perma expert testimony er must tested to been released for released, genuine reports. person possesses ex law it is sub sure that nent Until withdrawal.”), reviewing pertise in a that her ject revision field and of capital murder and to the same standards intellectual the defendant’s conviction adheres professional in her sentence, rigor did that are demanded held that trial court death work.”) (internal marks admitting quotation and brack finding not err reliable omitted); Chicago v. Northwestern dangerousness expert’s future ets Hose state’s (8th Co., Transp. would be a threat defendant Cir.1995)(clinical pa society. expert, agent spe physician’s an FBI who manganese pa studying sexual inhalation of caused cialized victimization tient’s children, study manganese encephalopathy reli of tient’s based his 1,000 patient history, cases, although only personal with able based over interviews offensеs, manganese laboratory studies of levels inmates of child sex ex convicted clothes, records, body patient’s work clinical ex psychological of inmates’ amination MRIs, aminations, a study of in series of other doc the facts offenses Jones, rejected reports); United States volved. The Nenno court the defen tors’ (6th expert’s Cir.1997)(although Daubert’s argument opinion F.3d 1147 dant’s rely applicable expert gatekeeper it function is all was not reliable because did testimony, the Daubert factors do not extend soundness scientific methodology, set part outside the hard orbit to handwrit forth opinion, spe- II-C of his are Sears, see also Tassin v. experts); cifically Roe aimed the evaluation of scienti- Co., F.Supp. course, buck testimony. fic Of some of these (M.D.La.1996)(holding that for an expert’s may highly factors be relevant to an evalu- opinion to be considered reliable he must use ation of types certain ex- non-scientific experts particular pert in his example, evidence. For whether the field). proffered methodology can be and has may very been pertinent tested well be majority’s opinion requiring rigid, an examination of non-scientific but “tech- application mechanical of the Daubert factors expert nical” evidence. Peer review and beyond the ambit of the hard sciences also publication may important be an factor scholars, conflicts with the views leading respect involving social jurists practitioners.3 example, For sciences. “general acceptance” And the report College of the American of Trial Law- a methodology particular within a disci- yers on Standards and Procedures For De- pline will many be crucial in cases. The termining Admissibility Expert Evi- point is that one Justice Black- dence After 157 F.R.D. 571 may man’s may not have four factors recognizes require- the basic Daubert applicability proffers of non-scientific judge ment that a trial determine whether a inquiry evidence. The to be made proffer expert testimony of is reliable or concerns the by principles fundamental applies expert valid testimony to all forms of validity which the a methodology is to particular expert and that the at issue should judged particular be in the knowl- field of methodology, validity have her i.e. the of her (footnotes edge. Id. omitted)(emphasis opinion, judged by principles applicable the added) particular to “that field.” Id. at 577. In regard specific to the Daubert factors which Leading federal evidence commentators the majority rigidly applies, so the American have noted that the Daubert is am- College Lawyers’ report of Trial concludes biguous given and has rise to a number of that: interpretations. E.g. 29 Wright Charles A. ... “general Gold, Justice Blackmun’s observa- and Victor J. Federal PRACTICE and (1997). tions” about the factors that a § federal They observe ProCEdure

judge ought to in evaluating consider that at its narrowest Daubert can be read to 3. expressed by In addition to the views qualified commen- expert by witness is as an practitioners, Stephen tators and Saltzburg, skill, A. et knowledge, experience, training or edu- al. 2 Federal Rules of Evidence Manual at 1250- information; provide cation to such (7th ed.1998) reports that: (5) the information will assist the trier of Advisory Committee on Evidence Rules fact to understand the evidence or to deter- has made a determination that Rule 702 mine a fact in issue. light should be amended in of Daubert and its language While the set forth above is still in progeny. Advisory pre- Committee has development, Advisory Committee has pared working a draft for an amended agreed upon general points. some substantive which, writing, yet at this has to receive final First, gatekeeper standards of Rule 702 approval working from the Committee. The apply expert must ond, testimony. to all Sec- draft, adapted proposal by which is from a reliability apply standards must Graham, Professor Michael reads as follows: only theory methodology or used scientific, Testimony providing technical or expert, application but also to the of that theo- information, specialized other form of ry specific or in the case.... otherwise, opinion, an may permitted or be if: Third, pay get it does not too detailed about (1)the upon adequate information is based Judge the factors that a Trial should facts, use in underlying opinions; data or assessing reliability.... (2)the leaving The risk of upon information is based a methodol- important reliability (a) especially out ogy factors is gained either established to have wide- great experts spread because acceptance in different particular fields will in the field to (b) necessarily explanative methodologies, which the use theory belongs, different and it possess trustworthiness; very shown to would be indicia of difficult to describe an all-inclu- (3)the methodology applied reliably reliability has been sive list of factors that would cover case; to the facts of the experts. of all removed, Until Daubert box is on bal- gatek- judges significant a to exercise allow ance, suggested gatek- it is that Daubert’s expert only in the case eeping function eeping language be held lower should testimony in hard sciences based nov- apply to courts to “scientific” evidence at Id. 289. methodologies. theories el only. interpretation most This is consis- reading They further broadest state plain meaning tent applies reliability it to all Daubert is that and. if the clear choice for liberalization expert testimony. presented by all Id. issues admissibility fact goal. liberal is in view, rejecting In the broadest at judi- importantly, nonapplication Most Wright and state: Gold gatekeeping spe- cial “technical interpretation This of Daubert broadest knowledge” prevent would cialized above, As it is rejected. be noted many plaintiffs should hardship incurred precedent policy product liability inconsistent with both litigation. Such inter- unthinking admissibility pretation applica- also all tes- avoids to make the tion of the four Daubert factors as well as timony upon showing a depend process develop- trying alternative completely is reliable in expert’s determining factors wheth- list of every does not respect. Since Daubert years with 30 er construction worker position, explicitly nothing take such experience testifying concrete is reinforced it, it compels Rules seems Evidence sufficiently is explanative theory such unlikely that the Court intended trustworthy. Id. at 25-26. past practice. In departure from over- Daubert, turning unlikely that the Court Court Frye, it stated: is, by Rule 702 we inquiry “The sought the admission envisioned make emphasize, flexible one.” Id. of scientific evidence harder. omitted). 113 S.Ct. 2786. en banc (footnotes U.S. however, majority opinion, heedless of Dau- Professor Michael Graham contends preсept, bert’s and unmindful the other working courts within Daubert boxes the into ap- adoption of a flexible circuits’ unanimous has not functioned as antici- a structure that factors, the proach applying Daubert holds fairly pated by Supreme Court and can the circuit unth- that district courts must to have functioned well at all. be said fac- inkingly rigidly apply the Daubert and Graham, Michael reliability of H. of Federal assessing the a clinical Handbook tors 702.5, pp. (Supp.1998). § Evidence, as causal physician’s opinion relation- rigid ap- a strongly against exposure advises to a ship Graham between an individual’s suggests person’s of Daubert and and that dis- plication the factors chemical or substance means, This of ease or medical disorder.4 that: (as case, (5) opposed present techniques; to panel opinion clinical medicine The Moore v. 4. Inc., Chemical, (5th not, science) laboratory Cir. Ashland 126 F.3d and medical research 1997), consistently foregoing authori discipline; the strictly speaking, a "hard” scientific ties, (1) principles concluded that: the basic of matter, study, goals, subject of and its conditions recognized the Federal of Evidence Rules developed, generis are well sui apply the or exclusion of Daubert admission quite purely from that "hard” science different of (2) every type therefore, expert testimony; judge, a trial of (6) methodology; Consequently, trial and a every proffer expert assess of must proffer judge assessing reliability a the of the determine it is relevant to physician's experl based clinical application princi case the and a reliable purporting knowledge, without clinical medical discipline; expert’s ples methodоlogy of methodology, be on hard scientific based (3) interpreted Supreme Court in the applica- a whether it is sound should determine knowledge" Federal Rule of "scientific under knowledge, principles and methodolo- tion of the case, purposes to mean Evidence of that case, medicine; (7) present the gy of In clinical knowledge method, the scientific and tested obtained an error of law the court committed i.e., knowledge; "hard” scientific ex- rigidly applying the factors” and "Daubert accordingly, indicated that a the Daubert court physician's opinion expert cluding the clinical reliability expert assess the trial should have "hard" the doctor did not because testimony professedly based on "hard" scientific factors, support data to his clinical knowledge using factors,” several "Daubert opinion. "hard” which are science methods course, one, present person’s exposure such that in cases between the the de- specific velopment symptoms or signs in which the association between a of disease. particular majority asserts that in compound chemical and a disease the absence of been, be, yet perhaps never an established scientific connection between has will exposure subjected investigation, compelling to hard science and illness or circum- stances, present any temporal plaintiff will be unable to connection between exposure expert testimony exposure symp- that his or her to chemicals and an onset of compound probable weight chemical toms is was the entitled little determin- Maj. p. Op. medical cause of his or her disease. causation. 278. This great weight dictum conflicts with the majority adopts en banc mechanistic judicial authority. scientific and interpretation of the Daubert factors that science, require sphere the exclusion evi- threatens from of hard opines exposure dence vast numbers of clinical medical of an who to a opinions, they generally accept- compound although person’s are caused a disease is trustworthy by physicians practicing in ed as “based on an assessment the individual’s and, fields, exposure, amount, majority’s including until the temporal their decision today, routinely accepted relationship exposure were as reliable between the and dis- ease, our courts before and after both Daubert. disease-causing Morgan, Center, See Carroll v. 789-90 factors.” Federal Judicial REFER- (5th Cir.1994). Disturbingly, Evidence, p. ENCE Manual Scientifio added). explain does not the reasons for (1994)(emphasis temporal its deviation rela- departure tionship may other circuits or its support either or contradict practice prior precedent injuries, in our causation. “In most acute there is a Ironically, majority’s divergence courts. period short time between cause and effect. However, situations, setting, occurs a rather run-of-the-mill length in some physician’s involving opinion, processes ease a clinical biological long- basic necessitates generally accepted period based clinical method- er of time between initial ology, non-catastrophic as to cause of and the onset observable Id. at disease.” following Moreover, person’s episodic disease temporal relationship 207. is onе occupational exposure traumatic to a epidemiologist chemi- of seven factors that an compound. cal Unlike determining and other considers in whether the associ- publicized cases, highly pres- toxic agent torts ation between and a disease is science,” ent “junk case does not involve causal. Id. purportedly opinions, hard scientific based on Courts and commentators have also rec epidemiological and animal gener- studies not ognized the fact an individual’s ally accepted discipline, in their as to the symptoms appropriate an followed time af surreptitious relationship causal between exposure important ter is an consideration or drugs catastrophic other substances determining E.g., causation. Kannanker systemic diseases or such disorders as cancer Int’l., Inc., 802, 805, il v. Terminix 128 F.3d

and birth defects. (3rd Cir.1997); Zuchowicz, 809 140 ‍‌‌‌​‌​‌‌‌​​‌‌‌​‌‌​‌​‌‌‌‌‌‌‌​‌​‌​​​‌‌​‌​​​‌‌​‌​​‌‍F.3d at admissibility (affirming 385 the of an

(b) tempo whose “conclusion was based on the Having depleted the of relationship ranks medical cau- ral between the overdose and experts plaintiffs suffering sation available to the start of disease and the differential etiol non-catastrophic exposure injuries, ogy excluding possible chemical of method majority causes.”); injury by casting Searcy-Alford, the adds insult to Margie 1 A Guide importance 10.03[2], doubt on the a principal § of ele- to Toxic Torts 10-69 p. (1998)(“The by ment used both hard scientific clini- symptoms fact follow experts cal medical in determining appropriate exposure time after does not causation, relationship is a prove there causal important between but it is an con exposure sideration.”); al, individual’s Stephen to a substance and his Saltzburg A. et viz., or her disease temporal relationship at Federal of Rules Evidenoe Manual (7th they departed from the ed.1998); significantly cause see Benedi (4th McNeil-P.P.C., Inc., accepted toxicology methodology, while the al., toxicology expert followed the Cir.1995); defendant’s Speiser M. et 3 Stuart methodology 11.27, § of that disci- generally accepted at 465 Ameuican Law of Torts Moreover, (1986). at 773. pline. Id. Caval- that, in of lo court never said the absence ease relied on The district court circumstances, temporal compelling rela- Enter., F.Supp. majority, Cavallo v. Star weight.” tionship is “entitled to little In- (E.D.Va.1995), distinguishable nu- stead, merely that court observed that there support respects and does merous may temporal where the connec- be instances majority’s temporal relation- assertion dispense compelling with the tion is so weight” “little in the ab- ship is entitled toxicologists rely on the standard need for In Ca- compelling circumstances. sence at discipline. Id. 773. of them vallo, exposure plaintiffs occurred shopping during mall parking lot of a open (c) period of 500 feet distance five minute fumes, jet fuel source of the injury coup grace As to inhalation de issue; not seek substance at she did chemical that, claimants, indicates if a days until nine later for medical assistance plaintiffs expert scientifically have does not diag- in an initial symptoms that resulted her of the level of the accurate measurements redness;” “conjunctivitis, eye her nosis plaintiffs exposure, “his rough experts not have even a idea did suspect even if he [will be] ha[s] there was no exposure; amount her support position that the [chemical for the plaintiff showing that the fumes the inhaled plaintiffs compound] [the could cause dis- spill- alleged negligent from the defendant’s majori- Maj. Op. p. n. 9. The ease].” actually than the age were more dense ordi- ty of its new rule downplays the lethal swath shopping mall nary daily atmosphere applies it suggesting that here because distribution, mix- petroleum near defendant’s “the paucity of the facts Jenkins had Significantly, Ca- ing and transfer terminal. expo- about the level of Mr. Moore’s available safety experts a material vallo’s did have sure.” But the truth is that Dr. Jenkins had (MSDS) knowledge full of some data sheet better information about the nature and, impor- of the chemicals inhaled more substances, exposure, and level tantly, they reliably apply use or did not experts than in most inhalation acci- duration disciplines. methodology of their own “Only rarely are humans cases.5 ex- dent permits sum, posed ex- a manner that court ruled the chemicals Cavallo quantitative adverse out- opinions inadmissible because their determination perts’ most exclusively occurs fre- opinions [ ] on a comes. Human were based almost settings spatial quently occupational where work- very temporal tenuous connection exposed like symptoms and ers are to industrial chemicals between be- panel opinion: in and around the trailer for about explained As worked sprinkling history "Absorbo” over the Dr. Jenkins had to 60 minutes Moore's that From taken, expo- the sweeping he had information that before areas the saturated contaminated health, good that two 400 shovels, sure Moore was pound removing the into materials material begun had leak- drums the chemicals of trailer, shoving leaking the and truck at some time in the back of Moore’s drums, salvage into that Moore finished drums Ashland, rig that before his arrival at Moore's a.m., cleanup 11:00 that the at Ashland about of a diesel tractor and a 28 foot consisted tightness began experience of chest Moore to trailer, discovery the enclosed that after a.m., symptoms that as his were at about 11:45 upon leakage the drums arrival at Ashland continuing the worsen Moore consulted to continue to leak inside the were allowed to "oxygen put company who him on and doctor 45 min- trailer with the doors shut for another Moore, 702. inhalants.” supervisor utes the told Moore to until Ashland information, to this Dr. Jenkins was able From them, pound point the 400 that at this remove been ex- roughly that Mr. Moore had estimate light enough to allow drums had become posed parts per high- or possibly "200 million manually to roll them out Moore and others dock, co-employee compound. Id. at 695. er” the chemical and of onto the that Moore 288 ásbestos; however, opinion even under these court Dr.

lead or admitted Jenkins’ that Mr. difficult, circumstances, usually if airways it is not Moore had reactive but disease ex- impossible, quantify expo- of opinion amount cluded Dr. Jenkins’ that disease Center, sure.” Federal Judicial specifically exposure had been caused REFERENCE Evidenoe, compound p. the chemical Dr. involved because on SCIENTIFIC 187 Manual majority’s Consequently, (1994). rule presented had Jenkins not hard scientific virtually all apply will inhalation cases to support general for a causal link or associa- opinions plaintiffs’ experts of exclude the compound particular tion between thаt and specific they if medical causation even are particular that disease.6 enough have science fortunate hard data majority opinion prelimi- retries supporting general relationship causal or nary proffer assessment of Dr. Jenkins’ de compound between the association chemical (1) novo district and concludes majority and the involved. The disease does (a) was “entitled to conclude” that Dr. Jen- authority not even paucity sup- have of explained kins not had sufficient detail extra, port gratuitous ratcheting down of diagnosis etiology how his differential and inhalation accident victims’ chances recov- training experience helpful and were ery. (b) causation; reaching his conclusion supporting MSDS had limited value in Dr. opinion Jenkins’ because he not did know has conducted trial de novo what Dow in preparing tests had conducted preliminary the district court’s assessment MSDS what level of reasoning and necessary person injuries for a to sustain the underlying Dr. Jenkins’ was reli (c) MSDS; of in warned Mr. Moore’s able, substituting own judg erroneous youth, history asthma in his smoking and reasoning ment for that and trial recovery pneumonia shortly before his judge, reviewing rather than opinion made Dr. Jenkins’ even rulings reasoning court’s for abuse of (d) unreliable; “analytical more gap” - discretion, Joiner, General Electric Co. v. between Dr. Jenkins’s causation -, 512, 517, U.S. 118 139 S.Ct. L.Ed.2d knowledge the scientific and available data (1997), clearly factual findings, erroneous support advanced was too States, 171, 181, Bourjaily United 483 U.S. wide; explain Dr. not Jenkins did (1987), S.Ct. L.Ed.2d precisely irritating how properties law, States, errors of Koon v. United compound by the described MSDS were sim- 81, 100, 2035, 135 U.S. L.Ed.2d 392 S.Ct. ilar to those in other compounds сhemicals or (1996)(“A district court definition abuses that had been airways linked reactive its discretion it makes an error when disease. law”). proceedings, the district court the de- Dr. Jenkins testified that he did know objected fendants performed introduction Dr. what Dow tests had in preparing diagnosis Jenkins’ as to the warnings MSDS the hazards of the cause grounds of Mr. compound. Moore’s disease chemical The district court com- support doctor lacked hard scientific mented on this but ruling fact based its compound the chemical involved could the lack of support hard scientific for the cause airways reactive disease. The district opinion, doctor’s clinical on his examination, performed physical 6. Dr. reports Jenkins cal records and of a bronchodilator test history, performed by took a detailed medical observed Moore two Simi to three weeks after occasions, prepared airways on three reviewed the MSDS accident showed severe obstruc- Corning, performed Additionally, report Dow and a series of tion. tests Dr. Jenkins a Alvarez, reviewed tests, including pulmonary allergy on performed by Moore function a of an test Dr. test, test, spirometry plethys- allergic immunologic bronchodilator which ruled out or disease test, determination, mographic lung Finally, volume an and confirmed RADS. Dr. Jenkins also test, test, intrapial gas upon temporal distribution a diffusion proximity relied the between the test, test, X-rays, exposure arterial bloods a mechanics facility and to the chemicals at the Ashland laboratory symptoms. tests. Dr. Jenkins reviewed the medi- and the of onset

289 designed test to eliminate each alternative testing. The is knowledge of Dow’s lack of professor’s objection chemistry or without and cause of disease was introduced MSDS experts composition exegesis to in the of on the structure and referred sides, professed of to have having both none whom as each chemical identified similar test- any knowledge of Dow’s MSDS-related proper not irritating properties, does afford a clearly that ing. The demonstrates record appellate the basis for an trial de novo on only for the used the MSDS Dr. Jenkins preliminary court’s as- record of the district experts, mere- the purpose same as did hearing. sessment ly of information as the kinds as a source contend, Likewise, defendants not the did compound to which Mr. of in chemicals rale, judge not that Dr. and the trial did Thus, exposed. the district Moore had been opinion was of Jenkins’ inadmissible because evidently gave weight to the ex- no court asthma, smoking or Mr. Moore’s childhood testing, knowledge perts’ lack of of Dow’s pneumonia. Dr. Jenkins concluded that fact, in any find relevance this it if it did and exposure compound triggered to the chemical clearly doing have been erroneous would airways after Mr. Moore’s reactive disease Moore, 126 F.3d at 701. so. See all other factors taking these and relevant court, moreover, did not district base The plaintiff is not re into consideration. The many findings of and its decision quired prove was the now attributes to reasons that of It is well exclusive cause the disease. it. nor the district Neither defendant that a settled Texas elsewhere defen any quali- found fault with Jenkins’ Dr. plaintiff as him. dant takes the he finds fications7, experience, regarding 749, Whittington, 758 752 Coates v. S.W.2d irritating proper- similarity of chemical Friederick, 73 (Tex.1988)(citing Driess v. ties, perfоrmance his of differential proper or (1889)); 460, 493, Mondra Tex. S.W. alternative causes of etiology eliminate (Tex.Ct. Austin, 191, gon v. 954 S.W.2d Because defendant Mr. Moore’s disease. States, App.1997); see Maurer United object Dr. Jenkins’ did (2nd Cir.1981)(“It 98, F.2d 99-100 a settled grounds question or him on these these law principle of tort that when defendant’s points and not base its the district court did injury, fully he is liable wrongful act causes them, ruling on these issues should be damage resulting though for even sponte by perfor- The raised sua court. injured preexisting plaintiff had a condition examinations, taking physical of of mance wrongful consequences made histories, employment reliable they than been act more severe would have laboratory provide significant tests evidence takes for a normal victim. defendant prima diagnosis differential a reliable him.”); Page he W. plaintiff as finds has considered facie evidence a doctor Keeton, al., et Torts Prosser and Keeton on attempted has to test alternative causes and ed.1984). (5th § 43 at 291-92 hypothesis his her initial cause. See majority’s most blatant addition of at failure Paoli for, in an post finding rationale own ex facto court to ask defendant or volunteer, ruling, district court’s effort to bolster the failure to further elab- the doctor’s however, is claim that the dis- diagnosis on how its erroneous oration each differential Unit, University majority opinion point Michi- and Chest 7. The fails to out berculosis School, 1947, gan qualifications certified were at Medical was Jenkins' never issue fact, point proceedings. Board of Internal Medicine Dr. Jenkins the American in these capacities qualified professor as a eminently in various render an served was more than summary Baylor College of Medicine from in this as a brief matter education, training experience of the Pulmo- where from 1947-74 he chief reveals. Dr. nary degree Disease Section and from 1975-91 chief Jenkins received his medical Additionally, University training environmental medicine. of Texas in received intern, fifty years practicing University Michigan Hospital course of over as an medicine. over has examined and evaluated Tuberculosis and Chest Disease and Dr. Jenkins resident in 1940-45, injuries persons occurring Allergy Instruc- resident in served as occupa- compounds in an to various chemical and Chief Resident in Medicine and Assistant tor setting. Physician charge of the Tu- tional of Medicine ‘analytical “that gap’ seriously triet court found contend that it does set broad, opinion precedents pro- Jenkins’s and eccentric that will between knowledge foundly the scientific and available data affect the trials and outcomes in support opinion that advanced was too substantial numbers of future involving cases Maj. Op. injuries 279. p. alleged wide.” The district court and diseases to have been finding. “analytical by exposure such The term compounds. made no caused to chemical Supreme gap,” Court’s majority, my opinion, comes Join- en banc makes 519, law, opinion er of see 118 several S.Ct. and errors of serious most of appear in the district court’s 1995 which that holding does not is a clinical medical Moreover, present expert, case.8 ruling opinion as whose is based on sound above, explained application principles the district methodology court based its and theory on discipline, reliably decision the same erroneous his or her testify cannot rationale, i.e., majority’s primary that a relationship clini- as to the causal between and physician express exposure cal cannot an compound medical ad- individual’s to a chemical opinion, regardless of how and her soundly subsequent symptoms missible his or onset of applies he or she relies on and well and settled disease. As a result this error of law others, methodology, opin- clinical medical unless the opinion the en banc subverts the science, supported by ion is further hard liberal thrust of Federal Rules of Evi- rigid type Daubert factor data. principles dence and the enunciated Dau- by locking

bert gate on causation evi- dence through principles derived Conclusion methodology of clinical medicine. analysis, presents In final this case legal question proper interpretation

Federal Rule of 702 and Daubert in Evidence involving expert

cases proffers witness based

on knowledge beyond the realm hard sci- Indeed, knowledge. majority

entific en anyone

banc is far for too “rulefied” - Joiner, U.S.-, 8. upon In General Co. v. experts Electric which the relied were not suffi- cient, (1997), combination, individually 118 S.Ct. 139 L.Ed.2d 508 the Su or in discretion, preme support Court held abuse Supreme that rather their conclusions. The Court stringent may particularly than the remarked that "[a] standard of review court conclude that there case, simply great analytical applied by appeals too gap court of in that between the is the opinion proffered.” proper data and the Id. at standard which to review a case, present "analytical In the there was no court’s decision to admit or exclude scientific gap” between Dr. Jenkins’ data and his plaintiff proffered expert evidence. The Joiner that Mr. Moorе’s caused his disease. hard methodology, based on science fact, the district court allowed studies, Dr. Alvarez to epidemiological prove animal that express opin- use the identical data to the same products defendants' PCBs related had easy ion. It is to see the district court’s lung experts caused his cancer. "Joiner’s used a decision in Joiner was reasonable and not an 'weight of the evidence’ to assess plaintiff abuse of discretion because the himself whether Joiner’s to transformer fluids analytical gap conceded that there was an be- promoted lung They suggest cancer. did not expert's tween one each of his studies ‍‌‌‌​‌​‌‌‌​​‌‌‌​‌‌​‌​‌‌‌‌‌‌‌​‌​‌​​​‌‌​‌​​​‌‌​‌​​‌‍and the any study provided adequate support one conclusion that caused PCBs his cancer. He conclusions, their but instead relied all the however, argued, although unsuccessfully, together (along taken studies with their inter every analytical gap bridged could be if all of the views Joiner and their review of his medical experts’ studies were considered in combination. records).” Id., (Stevens, S.Ct. at 521 J. case, present In the the district court excluded concurring (foot part part) dissenting opinion simply Dr. Jenkins’ he did because omitted). note The district court examined the support have hard scientific for his clinical experts’ opinions studies excluded the on the opinion, gap not because of a in reason- ground that none of studies sufficient was, ing. Dr. Jenkins’ clinical medical alone lung to show a link between PCBs and fact, snugly application based sound cancer. accepted methodology discipline. the well of his Thus, held Court that the district simply era banc the itself is at- did excluding not abuse tempting bridge its discretion in great analytical gap by too experts’ testimony grounds trying present studies to stretch Joiner to cover the case.

Case Details

Case Name: Moore v. Ashland Chemical Inc.

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Sep 16, 1998

Citation: 151 F.3d 269

Docket Number: 95-20492

Court Abbreviation: 5th Cir.