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Alder v. Bayer Corp.11/26/2002
erved that "MCS is a controversial diagnosis that has been excluded under Daubert as unsupported by sound scientific reasoning or methodology." 132 F.3d at 603; see generally Daubert v. Merrell Dow Pharm., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).
The plaintiffs in Bradley alleged that they suffered from MCS as a result of exposure to pesticides. 42 F.3d at 435. The circuit court upheld the district court's determination that "'the "science" of MCS's etiology has not progressed from the plausible, that is, the hypothetical, to knowledge capable of assisting a fact-finder, jury or judge.'" Id. at 438 (quoting Bradley v. Brown, 852 F. Supp. 690, 700 (N.D. Ind. 1994)). The circuit court observed that "' nder the Rules, the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.'" Bradley, 42 F.3d at 438 (quoting Daubert, 509 U.S. at 589, 113 S. Ct. at 2795). The court further noted that the district court had examined in depth literally hundreds of pages of material discussing MCS. Id. After commending the lower court for its careful and thorough execution of its "gatekeeping" function, the circuit court refused to disturb the district court's conclusion that "'Plaintiffs have failed to show that theories concerning MCS's causes have been adequately tested; their own evidence suggests just the opposite.'" Id. (quoting Bradley, 852 F. Supp. at 700).
MCS has remained a prominent issue in medical science. The record refers to over 200 peer-reviewed publications on MCS within the last decade. A simple internet search for "multiple chemical sensitivity" yields 26,000 results. Given the almost exponential expansion of data on MCS, the time may come when that condition will gain medical and legal recognition. For the present, however, as the district court found, MCS is not recognized by the American Medical Association and numerous other medical organizations. These include the American College of Physicians, the American Academy of Allergy and Immunology, the American College of Occupational Medicine, the General Medical Council of Great Britain and the International Society of Regulatory Toxicology and Pharmacology.
While lack of general acceptance is not always fatal to admissibility, see State v. Rimmasch, 775 P.2d 388, 396-99 (Utah 1989), as we discuss below, it is not reasonable to expect that the scientific resources and technical wisdom of the district court could outstrip those of the American Medical Association and similar medical organizations. As the Seventh Circuit Court of Appeals recognized in Bradley, "'scientific controversy must be settled by the methods of science rather than by the methods of litigation.'" 42 F.3d at 438 (quoting Bradley, 852 F. Supp. at 700). Therefore, we hold that the district court was within the discretion of its gatekeeping function in excluding scientific and medical expert testimony relating solely to MCS.
III. HAVE TECHNICIANS SUSTAINED LEGALLY COGNIZABLE INJURIES OTHER THAN MCS?
Working backwards from the diagnosis of MCS, the district court declared all testimony relating to MCS inadmissible as "not based upon inherently reliable scientific or medical foundation" under Rimmasch and Utah Rule of Evidence 702. The court then disposed of Technicians' alleged fibromyalgia, CFS, and chemically induced cognitive deficits by proclaiming in a footnote with no cite to medical or legal authority that " hese diagnoses appear to essentially be MCS couched in different terms." After thus summarily excluding all of Technicians' expert testimony relative to injury without acknowledging the standard clinical diagnostic methods employed, the court
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