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Alder v. Bayer Corp.11/26/2002
announced that they had failed to establish the damages element of negligence. Yet the record is replete with evidence for Dr. Cullen's observation that Technicians "are not making the symptoms up, [they] are very real, often extremely intense, life ruining symptoms, and therefore they have an underlying pathophysiologic basis."
The record indicates that Technicians suffer from symptoms of fibromyalgia, cognitive deficits, and CFS, as well as more transitory symptoms indicative of chemical exposure. Neither the district court nor AGFA has cited a scintilla of evidence for the proposition that CFS, fibromyalgia, and cognitive deficits cannot exist independently, and that they are nothing more than "MCS couched in different terms." The bald statement that the illnesses "display nearly identical symptoms and show significant overlap" is not evidence of medical identity of MCS, fibromyalgia, CFS, and cognitive deficits. The very fact that the other conditions have been medically recognized as diagnoses, while MCS has not, supports the distinction. Neither AGFA nor the district court has challenged the validity of these stand-apart conditions as medically recognized diagnoses.
Expert testimony is typically freely admitted for all three of these conditions, and courts have recognized all three as bases for accommodations and awards. See, e.g., Weixel v. Bd. of Educ., 287 F.3d 138, 146-48 (2d Cir. 2002) (finding plaintiff diagnosed with CFS and fibromyalgia disabled within the meaning of the Americans With Disabilities Act); Carson v. Canada Life Assurance, 2002 U.S. App. LEXIS 1080, at *2-3 (4th Cir. Jan. 25, 2002) (per curiam) (unpublished opinion) (finding no reasonable basis to withhold insurance benefits where medical evidence indicated that plaintiff had fibromyalgia and was unable to perform her customary duties); Vega v. Comm'r of Soc. Sec., 265 F.3d 1214, 1219-20 (11th Cir. 2001) (finding that the ALJ erroneously rejected diagnosis of CFS, and gave insufficient weight to plaintiff's expert testimony where medical evidence and plaintiff's testimony supported diagnosis); Godbey v. Apfel, 238 F.3d 803, 807-10 (7th Cir. 2000) (vacating and remanding ALJ decision that failed to consider evidence of plaintiff's cognitive deficits); Kearney v. Standard Ins. Co., 175 F.3d 1084, 1091-94 (9th Cir. 1999) (reversing summary judgment on genuine issue of material fact regarding plaintiff's disability due to cognitive impairment).
Moreover, in Summers our own Tenth Circuit Court of Appeals has admitted expert testimony of a medically accepted diagnosis relative to the same symptoms for which it had excluded MCS-related testimony. 132 F.3d at 603-06. There, the court upheld the trial court's exclusion of expert testimony based solely on tests for MCS but admitted the testimony of a second expert witness who employed tests for an alternative diagnosis. The court observed that the "reports prepared by Dr. Schreiber clearly indicate that both plaintiffs suffer from objective abnormalities which, in the case of Summers, he attributes to 'toxic damage to his central and peripheral nervous system as a result of exposure to the fumes,'" and noted that " ven if Dr. Schreiber's testimony were to be excluded on Daubert review, it could not be excluded for the same reasons relied on to exclude [the MCS] testimony." Id. at 605. Likewise, expert testimony of Technicians' stand-apart injuries cannot be excluded for the same reason the district court relied on for excluding all testimony relating to MCS--that the evidence lacks a basis in "a valid and reliable diagnosis."
Although CFS, fibromyalgia, and induced cognitive deficits lack definitive laboratory diagnostic tests, they are not uniqu
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