United States Gypsum Co. v. Mayor and City Council of Baltimore9/12/1994
ies are admissible "only if the underlying data of the study are available for review, verification, and evaluation by the opposing party." (Asbestospray's brief at 33).
The Levin-Selikoff study, however, is not a compilation or summary of written data so voluminous that it would be impractical to introduce each separate piece into evidence. Rather, the issue here is whether an expert witness may testify as to the results of research efforts, and whether that expert's written findings may be admitted into evidence, when the underlying scientific data was not voluntarily given to the opposing party and when the opposing party made no effort under the rules of procedure to obtain the underlying data.
Reports of scientific research are quite frequently considered by courts. See, e.g., Department v. Bo Peep, 317 Md. 573, 588-589, 565 A.2d 1015, 1022 (1989), cert. denied, 494 U.S. 1067, 110 S.Ct. 1784, 108 L.Ed.2d 786 (1990); Cobey v. State, 80 Md. App. 31, 559 A.2d 391, cert. denied, 317 Md. 542, 565 A.2d 670 (1989); Clarksville-Montgomery County Sch. Sys. v. U.S. Gypsum Co., 925 F.2d 993, 1000-1001 (6th Cir. 1991); City of Greenville v. W.R. Grace & Co., 827 F.2d 975, 980 (4th Cir. 1987); Sch. Dist. of Independence v. U.S. Gypsum, supra, 750 S.W.2d at 452-453; Rowan County Bd. of Educ. v. U.S. Gypsum, 103 N.C.App. 288, 294-297, 407 S.E.2d 860, 863-864 (1991), aff'd in part, review dismissed in part, 332 N.C. 1, 418 S.E.2d 648 (1992); Kershaw County Bd. of Educ. v. U.S. Gypsum Co., 302 S.C. 390, 397-398, 396 S.E.2d 369, 373-374 (1990); Catasauqua Area School Dist. v. Raymark Industries, Inc., 662 F. Supp. 64, 70-71 (E.D.Pa. 1987).
Asbestospray has cited no cases, and we are aware of none, either in this State or elsewhere, holding inadmissible expert testimony based on scientific research on the ground that the other side did not have access to the data underlying the research.
The much-studied Agent Orange case, however, provides an excellent example of the opposite result. In re "Agent Orange" Product Liability Litigation, 597 F. Supp. 740 (E.D.N.Y. 1984), aff'd, 818 F.2d 145 (2d Cir. 1987). There, a Special Master was presented with discovery requests from both sides seeking to obtain the medical data underlying a 1984 Air Force study of military personnel involved in spraying Agent Orange in Vietnam. See Shira Scheindlin, Discovering the Discoverable: A Bird's Eye View of Discovery in a Complex Multi-district Class Action Litigation, 52 Brook. L. Rev. 397, 422-423 (1986). For various reasons, the Special Master did not order the United States government to produce the underlying medical records. Id. at 423. Despite the fact that the underlying data was not released to the parties, the United States District Court (Weinstein, J.) gave full consideration to the report. See In re "Agent Orange" Product Liability Litigation, supra, 597 F. Supp. at 782-783, 787-788. We can see no reason to adopt a rule that expert scientific testimony and a scientific report can never be admissible unless the opponents have been furnished with the raw data on which the testimony and report are based.
Asbestospray makes the general complaint that its inability to view the underlying data precluded it from engaging in any meaningful cross-examination of Dr. Levin. Nevertheless, the record discloses that, based on the information contained in the study itself, counsel for the defendants below were able to cast doubt on a number of the study's findings during their cross-examination of the author, Dr. Levin. Furthermore, the defendants fully cross-examined Dr. Levin with regard to the assum
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