 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Alder v. Bayer Corp.11/26/2002
ology, they must face trial without a medical causation expert witness." Moore v. Ashland Chem. Inc., 151 F.3d 269, 281 n.2 (5th Cir. 1998) (en banc) (Dennis, J., dissenting) .
AGFA relies on Glastetter v. Novartis Pharmaceuticals Corp., 252 F.3d 986 (8th Cir. 2001) (per curiam), for the proposition that there must be a basis for generally "ruling in" an agent as a known cause of the relevant class of injury before admitting differential diagnosis expert testimony. Id. at 989. The record in the instant case, however, contains ample documentation that exposure to x-ray processing chemicals causes the types of harm alleged by Technicians. Furthermore, the Glastetter court held that " ecause a differential diagnosis is presumptively admissible, . . . a district court may exercise its gatekeeping function to exclude only those diagnoses that are scientifically invalid." Id. (emphasis added). We agree. Therefore, while the district court may exclude differential diagnosis expert testimony relating directly and solely to MCS in the instant case, it cannot exclude expert testimony regarding CFS, fibromyalgia, and cognitive deficits.
A number of the circuit courts of appeal in addition to the Eighth Circuit have recognized differential diagnosis as a standard scientific technique. The plaintiff in Westberry v. Gislaved Gummi AB, 178 F.3d 257 (4th Cir. 1999), alleged severe sinus problems due to inhalation of talc. Id. at 260. The defendant argued that the physician's differential diagnosis expert testimony should have been ruled inadmissible as scientifically unreliable because the expert had no epidemiological or animal studies, no published peer-reviewed studies, or laboratory data to support talc as a causative agent for sinus disease. Id. at 262. However, the Fourth Circuit held that " ifferential diagnosis, or differential etiology, is a standard scientific technique." Id. at 262; see alsoAmbrosini v. LaBarraque, 101 F.3d 129, 140-41 (D.C. Cir. 1996) (holding that district court abused its discretion in refusing to admit testimony based on differential diagnosis).
In McCullock, where the plaintiff alleged that glue fumes had caused her throat polyps, the court found the physician's differential diagnosis testimony admissible, even in the absence of medical literature relating glue to throat polyps. 61 F.3d at 1043-44. The court stated that "disputes as to the strength of his credentials, faults in his use of differential etiology as a methodology, or the lack of textual authority for his opinion, go to the weight, not the admissibility, of his testimony." Id. at 1044 (emphasis added). The court noted that "' igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.'" Id. (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 596, 113 S. Ct. 2786, 2798, 125 L. Ed. 469 (1993)); see also Hardyman v. Norfolk Ry. Co., 243 F.3d 255, 260-67 (6th Cir. 2001) (reversing lower court's exclusion of differential diagnosis expert testimony); Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802, 808 (3d Cir. 1997) (contested expert testimony raises "an issue of credibility, not of admissibility").
Here, as in Patey, expert testimony based on accepted and standard methods and techniques does "not even implicate Rimmasch, much less violate its requirements." Patey, 977 P.2d at 1196. Therefore, we hold that Technicians' differential diagnosis expert testimony for their alleged non-MCS conditions is admissible.
V. CAN TECHNICIANS RECOVER IN THE ABSENCE OF PROOF OF SPECIFIC LEVELS OF CHEMICAL EXPOSURE WHERE CHEMICALS ARE KNOWN TO BE PR
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Utah Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|