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Easum v. Miller6/24/2003
leep disruptions, anxiety and depression may be experienced. Id.
Differential Diagnosis
Dr. Hooshmand presented a medical opinion that Easum's condition was caused by receiving a significant number of electrical shocks over a sustained period of time. Dr. Hooshmand's research in this case was not "conducted independent of the litigation," and was developed "expressly for purposes of testifying." Also, his research was not "subjected to normal scientific scrutiny through peer review and publication." Ordinarily, these Daubert factors would indicate unreliability unless good reason existed to explain the absence of independence, peer review and publication. Clausen v. M/V New Carissa, 339 F.3d 1049, 1056 (9th Cir. 2003). In the case of Dr. Hooshmand, the trial court found it significant that his causation diagnosis was unsupported by medical literature, peer-reviewed articles, clinical trials, and product studies.
Here, medical ethical rules do not permit conducting clinical testing that administers low levels of sustained electrical current to humans to see if RSD results. Dr. Hooshmand examined and treated a patient complaining of symptoms consistent with RSD following sustained exposure to electric shock and, later, that patient filed suit. Similarly, there may exist good reason why an expert's research may not have been published. Id. In this case, the apparent reason is that Dr. Hooshmand's research involving the phenomenon of electrical injury to dairy farmers is both recent and singular.
In the absence of these reliability factors, an expert may use an objective source to show that the scientific evidence method has been followed by at least a recognized minority of experts in their field. Id. Objective sources may include "a learned treatise, the policy statement of a professional association, a published article in a reputable scientific journal or the like." Id. Here, Dr. Hooshmand followed a differential diagnosis method to determine the cause of Easum's condition.
"'Differential diagnosis' refers to the process by which a physician 'rules in' all scientifically plausible causes of the plaintiff's injury . The physician then 'rules out' the least plausible causes of injury until the most likely cause remains. The remaining cause is the expert's conclusion." Hollander v. Sandoz Pharmaceuticals, 289 F.3d 1193, 1209 (10th Cir. 2002) (citation omitted). The Fourth Circuit describes it this way: Differential diagnosis, or differential etiology, is a standard scientific technique of identifying the cause of a medical problem by eliminating the likely causes until the most probable one is isolated. A reliable differential diagnosis typically, though not invariably, is performed after physical examinations, the taking of medical histories, and the review of clinical tests, including laboratory tests, and generally is accomplished by determining the possible causes for the patient's symptoms and then eliminating each of these potential causes until reaching one that cannot be ruled out or determining which of those that cannot be excluded is the most likely.
Westberry v. Gislaved Gummi AB, 178 F.3d 257, 262 (4th Cir. 1999) (internal quotation marks omitted). Most physicians use the term differential diagnosis to describe the process of determining which of several diseases is causing a patient's symptoms while courts use the term more generally to describe the process by which causes of the patient's condition are identified. Clausen, 339 F.3d at 1057 n.4; see, e.g., Westberry, 178 F.3d at 262.
In general terms, the reliability of differential diagnoses is easily resolved. "Most circuits have held that a reliable diffe
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