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Easum v. Miller6/24/2003
rential diagnosis satisfies Daubert and provides a valid foundation for admitting an expert opinion. The circuits reason that a differential diagnosis is a tested methodology, has been subjected to peer review/publication, does not frequently lead to incorrect results, and is generally accepted in the medical community." Turner v. Iowa Fire Equip. Co., 229 F.3d 1202, 1208 (8th Cir. 2000); s ee Westberry, 178 F.3d at 262-63. Physicians routinely determine medical causation by this technique, and we have previously determined that the technique of differential diagnosis for establishing causation can be reliable under Daubert. See Reichert v. Phipps, 2004 WY 7, , 84 P.3d 353, (Wyo. 2004).
Although courts have reached contrasting conclusions about reliability under Daubert, the Daubert reliability inquiry is case-specific, and, in general terms, the reliability of a proper differential diagnoses need not be addressed. Hollander, 289 F.3d at 1210 (citing Kumho Tire Co., 526 U.S. at 150, 119 S.Ct. at 1175); see also Carlson v. Okerstrom, 675 N.W.2d 89, 105 (Neb. 2004). Our task is only to decide whether the trial court abused its discretion by characterizing the specific diagnosis at issue here as unreliable. Hollander, 289 F.3d at 1210. "A fundamental assumption underlying this method is that the final, suspected 'cause' remaining after this process [differential diagnosis] of elimination must actually be capable of causing injury . That is, the expert must 'rule in' the other suspected cause as well as 'rule out' other possible causes. And, of course, expert opinion on this issue of general causation must be derived from scientifically valid methodology." Id. at 1211 (quoting Siharath v. Sandoz Pharmaceuticals, 131 F.Supp.2d 1347, 1362-63 (N.D. Ga. 2001).
Reliable differential diagnosis alone may provide a valid foundation for a causation opinion, even when no epidemiological studies, peer-reviewed published studies, animal studies, or laboratory data are offered in support of the opinion. Hollander, 289 F.3d at 1212 (citing Westberry, 178 F.3d at 262). As the Eighth Circuit has written:
We do not believe that a medical expert must always cite published studies on general causation in order to reliably conclude that a particular object caused a particular illness. The first several victims of a new toxic tort should not be barred from having their day in court simply because the medical literature, which will eventually show the connection between the victims' condition and the toxic substance, has not yet been completed. If a properly qualified medical expert performs a reliable differential diagnosis through which to a reasonable degree of medical certainty, all other possible causes of the victims' condition can be eliminated, leaving only the toxic substance as the cause, a causation opinion based on that differential diagnosis should be admitted.
Hollander, 289 F.3d at 1212 (quoting Turner, 229 F.3d at 1209).
"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 reliable enough to assist a fact finder in understanding certain evidence or determining certain fact issues." Coastal Tankships, U.S.A., Inc.. v. Anderson, 87 S.W.3d 591, 604-05 (Tex. App. 2002). Courts that accept the differential diagnosis as reliable will permit it to establish legal causation when applied to an illness with some unknown causes. "Such a bright-line rule would be unduly restrictive in a world in
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