Banks v. IMC Kalium Carlsbad Potash Co.

• Decision Date: 09 September 2003
• Docket Number: No. 27,714.,27,714.
• Citation: 134 N.M. 421,77 P.3d 1014,2003 NMSC 26
• Court: New Mexico Supreme Court
• Parties: Carolyn BANKS, Worker-Respondent, v. IMC KALIUM CARLSBAD POTASH CO. and Crawford & Co., Employer/Insurer-Petitioners.

77 P.3d 1014

134 N.M. 421

2003 NMSC 26

Carolyn BANKS, Worker-Respondent, v. IMC KALIUM CARLSBAD POTASH CO. and Crawford & Co., Employer/Insurer-Petitioners.

No. 27,714.

Supreme Court of New Mexico.

September 9, 2003.

Montgomery & Andrews, P.A., Sarah M. Singleton, Santa Fe, NM, Marek & Francis, Thomas L. Marek, Carlsbad, NM, Sidley, Austin, Brown & Wood, Timothy E. Kapshandy, Chicago, IL, for Petitioners.

Trenchard, Buckingham & Hoskins, Royce E. Hoskins, Roswell, NM, for Respondent.

OPINION

MINZNER, Justice.

{1} IMC Kalium Carlsbad Potash Company and Crawford & Company ("Employer") appeal from an opinion of the Court of Appeals, see Banks v. IMC Kalium Carlsbad Potash Co., 2003-NMCA-016, ¶ 6, 133 N.M. 199, 62 P.3d 290, in which that court reversed an order granting Employer summary judgment and dismissing the claim of Carolyn Banks ("Worker") under the Workers' Compensation Act, NMSA 1978, §§ 52-1-1 to -70 (1929, as amended through 2003), and the Occupational Disease Disablement Law, NMSA 1978, §§ 52-3-1 to -60 (1945, as amended through 2003). Prior to entering judgment for Employer, the Workers' Compensation Judge ("WCJ") entered an order excluding the evidence of Worker's health care provider under Rule 11-702 NMRA 2003. The WCJ had concluded that the evidence did not satisfy the standards for admitting expert testimony established by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), as adopted in New Mexico by State v. Alberico, 116 N.M. 156, 167, 861 P.2d 192, 203 (1993), for Rule 11-702. In reversing the WCJ, the Court of Appeals reasoned that the Legislature had created a statutory scheme with which the WCJ's ruling was inconsistent, Banks, 2003-NMCA-016, ¶ 2, 133 N.M. 199, 62 P.3d 290, and thus that the WCJ erred in excluding the testimony, id. ¶ 24. We granted certiorari in order to determine whether the Court of Appeals correctly construed the Act. We hold that Daubert/Alberico does not apply to the testimony of a health care provider pursuant to NMSA 1978, § 52-1-28(B) (1987).¹ We therefore affirm the Court of Appeals. The evidence of Worker's health care provider should not have been excluded; Employer was not entitled to summary judgment. Because we hold that the requirements of Daubert/Alberico do not apply to the testimony of a health care provider pursuant to Section 52-1-28, we do not decide whether the testimony of Dr. Ross satisfied the requirements of Daubert/Alberico. We remand for further proceedings consistent with this opinion.

I

{2} Worker was employed by Employer from 1974 to 1998. For most of that time she worked underground in the Carlsbad potash mine. She performed several jobs while working underground in the mine, which exposed her to diesel exhaust fumes and nitrate smoke created by the mining operations. During her employment by Employer, she began developing respiratory problems. In 1994, Worker's treating physician, Dr. Lisa Perkowski, advised Worker to try not to work underground because her health was deteriorating. Worker, however, continued to work in the mine. She stopped working underground for most of 1996 and 1997. Her health continued to deteriorate. Eventually she was unable to work.

{3} Dr. Perkowski referred her to several specialists, including Dr. Gerald Ross at the Environmental Health Center in Dallas, who saw Worker in February 1998. Worker filed a claim for benefits under the Act with the Workers' Compensation Administration ("Administration") on July 17, 1998, based on exposure to chemicals while working in the mine. Worker named Dr. Ross as her treating physician in the complaint. After a period of evaluation, Dr. Ross wrote a medical report in February 1999, that diagnosed Worker with "[w]ork-related chemical exposures," resulting in or aggravating Worker's chronic cough, asthma, reactive airway dysfunction syndrome ("RADS"), allergic rhinosinusitis, toxic encephalopathy, food sensitivities, hypertension, and reactive anxiety and depression.

{4} On February 22, 2000, Employer moved to exclude the medical report, testimony by Dr. Ross, and the testing upon which he relied. In moving to exclude the report, testimony and testing, Employer acknowledged that Worker "has had several health problems." Employer argued, however, that the diagnosis Dr. Ross provided relied upon "scientifically discredited methodology" and was not admissible under Rule 11-702 and Daubert/Alberico. Rule 11-702, which governs the admissibility of expert testimony, states "[i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise." In Alberico, we followed Daubert and construed 11-702 as requiring that "[w]hen scientific evidence is employed as a means of obtaining or analyzing data, the trial court must determine whether the scientific technique" is reliable and relevant to assist the trier of fact. Alberico, 116 N.M. at 167, 861 P.2d at 203; see also Daubert, 509 U.S. at 589,

113 S.Ct. 2786.

{5} Employer's motion noted that many courts in this country have rejected the scientific validity of RADS, otherwise known as multiple chemical sensitivity, under a variety of evidentiary standards. Employer challenged the methodology of the report, contending Dr. Ross had relied on "untestable hypotheses" under which differing results could lead to the same conclusion, and therefore failed an important criterion under Daubert/Alberico. Employer pointed out that many scientific publications have rejected the methods of Dr. Ross and his colleagues and that the only relevant study he and his colleagues had published "miserably failed" under peer scrutiny. Employer argued that Dr. Ross had "no idea" of the error rate of the tests upon which he relied and that his theories and methods thus failed another important criterion under Daubert/Alberico. Employer concluded that Dr. Ross could not establish scientifically that Worker's condition was caused by the chemicals to which she had been exposed.

{6} Worker argued that Daubert/Alberico did not apply to Administration proceedings. Worker argued that the Act authorizes a health care provider to provide expert testimony in a workers compensation proceeding and thus no other standard need be met. She relied on the Legislature's intent, expressed in Section 52-1-28(B), which provides:

In all cases where the employer or his [or her] insurance carrier deny that an alleged disability is a natural and direct result of the accident, the worker must establish that causal connection as a probability by expert testimony of a health care provider, as defined in [NMSA 1978, § 52-4-1 (1993) ], testifying within the area of his [or her] expertise.

She cited precedent from the Court of Appeals, such as Coslett v. Third St. Grocery, 117 N.M. 727, 876 P.2d 656 (Ct.App.1994), and Fuyat v. Los Alamos National Laboratory, 112 N.M. 102, 811 P.2d 1313 (Ct.App. 1991), which had construed Section 52-1-28(B) in other circumstances to permit expert testimony of a health care provider, notwithstanding a challenge by an employer that the testimony did not satisfy the burden imposed by the Legislature. Finally, she argued that the evidence she intended to offer did satisfy the requirements of Daubert/Alberico.

{7} The WCJ granted Employer's motion and excluded the evidence Employer had challenged. Employer then moved for summary judgment, and the WCJ also granted that motion. Worker appealed to the Court of Appeals, pursuant to NMSA 1978, § 52-5-8(A) (1989).

{8} The Court of Appeals agreed with Worker that Daubert/Alberico did not apply. Banks, 2003-NMCA-016, ¶ 24, 133 N.M. 199, 62 P.3d 290. After recognizing that other jurisdictions had addressed this issue, the court considered the effect that adoption of Employer's argument would have on the statutory scheme the Legislature had created. Id. ¶ 14. The court noted recent changes in the statutory scheme of the Act, which now provides employers as well as workers more control in selecting the worker's treating health care provider, and which also restricts expert testimony of health care providers to that of treating physicians and those who perform independent medical examinations. Id. ¶ 20. The Court of Appeals observed these changes give an employer "a significant amount of control over the designation of an individual as a treating physician."² Id. ¶ 23. The court reasoned that exclusion of the treating physician's testimony was "not an option." Id. The court also reasoned that the Act imposes a lesser quantum of proof than the typical tort case, id. ¶ 21, and therefore, "it is not unreasonable that the Alberico/Daubert test need not be employed in such cases," id. ¶ 22.

{9} On rehearing, the court addressed Employer's contention that this Court's decision in Madrid v. University of California, 105 N.M. 715, 737 P.2d 74 (1987) controlled. In Madrid, this Court held that Section 52-1-28(B) "concerns an evidentiary matter," and "thus should be read more properly in pari materia with [the] rules of evidence," namely, Rule 11-702. Id. at 717, 737 P.2d at 76. Employer argues that Daubert/Alberico, "as the legal test for assessing compliance with Rule 11-702," must also be applied to Section 52-1-28(B). The Court of Appeals distinguished Madrid. The Court reasoned that it had been decided when workers' compensation proceedings were held in district court and before either Daubert or Alberico had been decided, and therefore this Court did not decide the issue on appeal. Banks, 2003-NMCA-016, ¶ 26, 133 N.M. 199, 62 P.3d 290.

{10} Employer petitioned for certiorari under Rule 12-502 NMRA 2003. Employer contended that the opinion of the Court of Appeals was contrary not only to Madrid and Rule 11-702 but also to Administration...