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Alder v. Bayer Corp.11/26/2002
issible.'" Id. at 397 (emphasis added) (quoting Kofford v. Flora, 744 P.2d 1343, 1347 (Utah 1987)).
We reconfirmed in State v. Adams, 2000 UT 42, 5 P.3d 642, that "the Rimmasch test was not intended to apply to all expert testimony. Rather, Rimmasch is implicated only when the expert testimony is 'based on newly discovered principles.'" Id. at 16 (quoting Rimmasch, 775 P.2d at 396). In State v. Kelley, 2000 UT 41, 1 P.3d 546, we confirmed that Rimmasch is inapplicable where "there is no plausible claim that the type of expert testimony offered by the prosecution was based on novel scientific principles or techniques." Id. at 19. In Patey v. Lainhart, 1999 UT 31, 977 P.2d 1193, we refused to apply Rimmasch after noting that " n this case, type of expert testimony which was offered . . . was based upon novel scientific principles or techniques." Id. at 16. Again, in Green v. Louder, 2001 UT 62, 29 P.3d 638, we limited application of the Rimmasch inherent reliability test to "expert testimony based on novel scientific principles or techniques." Id. at 27.
Furthermore, disagreement among experts, and even between the experts and the judge, is not a valid basis for exclusion of testimony. The Ninth Circuit Court of Appeals made this clear in Kennedy v. Collagen Corp., 161 F.3d 1226 (9th Cir. 1998), stating:
Judges in jury trials should not exclude expert testimony simply because they disagree with the conclusions of the expert. . . . The test is whether or not the reasoning is scientific and will assist the jury. If it satisfies these two requirements, then it is a matter for the finder of fact to decide what weight to accord the expert's testimony. In arriving at a conclusion, the factfinder may be confronted with opposing experts, additional tests, experiments, and publications, all of which may increase or lessen the value of the expert's testimony. But their presence should not preclude admission of the expert's testimony--they go to the weight, not the admissibility. Id. at 1230-31 (emphasis added).
Therefore, we reaffirm our previous holdings that the Rimmasch test applies only to novel scientific methods and techniques. Other scientific testimony is to be evaluated under rule 702 without heightened tests of "inherent reliability."
B. Application to Differential Diagnosis Testimony
In McCullock v. H.B. Fuller Co., the Second Circuit Court of Appeals defined "differential etiology" as "listing possible causes, then eliminating all causes but one." 61 F.3d 1038, 1044 (2d Cir. 1995). In that case, as here, an expert based his opinion on a range of factors, including care and treatment of the plaintiffs, medical histories as related by them and derived from medical and other reports, pathological studies, the expert's own training and experience, review of the relevant product safety specifications, and scientific and medical treatises. Id. The McCullock court upheld the admissibility of that expert's testimony. Id.
In the instant case, the district court summarily concluded that "Plaintiffs['] evidence is not based upon inherently reliable scientific or medical foundation as required under Rimmasch and Utah Rules of Evidence 702." To the contrary, however, differential diagnosis is one of the oldest and most widely used and recognized of all the methods. Historically and even presently, in many instances, differential diagnosis has been the only method available. Rejecting this method for lack of quantitative laboratory-based tests creates the risk that "in chemical injury cases, if the plaintiff can produce only clinical medical experts whose opinions are based solely on well accepted clinical medicine method
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