Coffin v. Orkin Exterminating Co., Inc., CIV. 97-258-B.

• Decision Date: 21 July 1998
• Docket Number: No. CIV. 97-258-B.,CIV. 97-258-B.
• Parties: Marion COFFIN, Plaintiff, v. ORKIN EXTERMINATING CO., INC., Defendant.
• Court: U.S. District Court — District of Maine

20 F.Supp.2d 107

Marion COFFIN, Plaintiff, v. ORKIN EXTERMINATING CO., INC., Defendant.

No. CIV. 97-258-B.

United States District Court, D. Maine.

July 21, 1998.

William Robitzek, Berman & Simmons, Lewiston, ME, for Plaintiff.

Peter Culley, Pierce Atwood, Portland, ME, LeAnn Jones, Powell, Goldstein, Frazer & Murphy, Atlanta, GA, for Defendant.

ORDER AND MEMORANDUM OF DECISION

BRODY, District Judge.

Plaintiff, Marion Coffin, filed this suit alleging negligence and strict liability claims arising out of the application of various pesticides in Plaintiff's office building by Defendant, Orkin Exterminating Co., Inc. Before the Court are Defendant's Motion in Limine to Exclude Evidence of "Multiple Chemical Sensitivity" or "Hypersensitivity to VOC's" and Motion for Summary Judgment.

I. BACKGROUND

Plaintiff is employed by the State of Maine Department of Labor ("DOL") and works in the Department's office building at 20 Union Street in Augusta, Maine. In August of 1994, the DOL contracted with Defendant, a commercial exterminating company, to provide pest control services at its Union Street building. Defendant applied pesticide throughout the building on or about August 19, September 25, October 4, October 13, November 10, December 15, 1994, and January 18, 1995. Plaintiff alleges that Defendant sprayed pesticides in the presence of people without warning them about the dangers of pesticide exposure, that pesticides were sprayed on walls and window sills in the presence of unwrapped food, and that the building was not properly ventilated during the spraying. Plaintiff contends that on several of the application days she smelled a sweet scent and subsequently suffered painful bloating, cramping, blurred vision, and headaches that lasted through the following day. Plaintiff claims that as a result of these exposures to pesticides she contracted a disease known as multiple chemical sensitivity ("MCS") which renders her hypersensitive to normal, everyday levels of airborne environmental chemicals and pollutants.

II. DISCUSSION

The Court first considers Defendant's Motion in Limine to exclude evidence of multiple chemical sensitivity.¹ The theory behind MCS is that "various kinds of environmental insults may depress a person's immune system so that the exposed person ... becomes hypersensitive to other chemicals and naturally occurring substances." Federal Judicial Center, Reference Manual on Scientific Evidence 73 (1994). Plaintiff's proposed expert, Dr. David L. Phillips II, who examined and treated Plaintiff, defines MCS in layman's terms as the display of "sinus and upper respiratory symptoms as well as a sense of ill health after being around noticeable ... [or] low levels of organic compounds such as gasoline fumes, cigarette smoke, photocopier, printer and computer emissions, pesticide application, herbicide application, fresh paint, new carpet, new furniture." Phillips Dep. at 31. Dr. Phillips explains the symptoms of MCS as:

[c]hronic, which is defined as being over four months in duration, sinus and/or upper respiratory symptoms as well as a sense of poor health such as fatigue, headache, loss of appetite, that occurs after exposure to VOC's that usually improves after they have been removed from the exposure; and then it recurs again with more exposure. And despite treating them for other possible diagnoses, they continue to ... have these chronic symptoms.

Phillips Dep. at 32. Although the Court is aware of no uniformly accepted definition of MCS, another court has noted that "all proposed definitions include elements of (1) a multi-symptomatic disorder; (2) affecting multiple organ systems; (3) resulting from exposure to a diverse array of chemical compounds at levels tolerable by the majority of the population." Frank v. State of New York, 972 F.Supp. 130, 132 n. 2 (N.D.N.Y. 1997).

Phillips offers the opinion that Plaintiff acquired MCS as a result of her exposure to the pesticides applied in her office building by Defendant. Phillips explains:

[Plaintiff] had developed reversible hypersensitivity to volatile organic compounds until she was exposed to the pesticide spraying. After the pesticide spraying she developed irreversible, permanent hypersensitivity to volatile organic compounds as well as to pesticides (specifically organophosphate and pyrethrins).... It is my medical opinion within a reasonable degree of medical certainty that [Plaintiff's] medical conditions were caused to become irreversible and permanent by her exposure to pesticide spraying at a time when she had developed reversible hypersensitivity to volatile organic compounds. If she had not been exposed to pesticide spraying she probably would not have developed permanent hypersensitivity to volatile organic compounds. Also, she would not have developed type 2 immunologic reaction. Without the pesticide spraying exposure, it is probable that her hypersensitivity to volatile organic compounds would have been reversible.

Phillips Aff. Ex. A at 29.

Defendants move the Court to exclude all evidence relating to MCS, including the testimony of Dr. Phillips, on the ground that the diagnosis of MCS and the theories underlying it are unreliable and lack a scientifically valid basis.

Fed.R.Evid. 702, which governs the admissibility of expert testimony, provides that expert testimony is admissible only when "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court concluded that when

[f]aced with a proffer of expert scientific testimony ... the trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.

At issue here is whether the witness is proposing to testify to "scientific knowledge," or, in other words, whether the evidence is reliable. See id. at 589, 113 S.Ct. 2786.²

[I]n order to qualify as `scientific knowledge,' an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validation — i.e., `good grounds,' based on what is known. In short, the requirement that an expert's testimony pertain to `scientific knowledge' establishes a standard of evidentiary reliability.

Id. at 590, 113 S.Ct. 2786. In determining whether the proposed evidence is reliable, courts are to consider several factors, including: (1) whether the scientific theory can and has been tested; (2) the extent to which the theory has been subject to peer review and publication; (3) the known or potential rate of error of any scientific technique at issue; and (4) whether the theory is generally accepted within the relevant scientific community. Id. at 592-95, 113 S.Ct. 2786. Although the inquiry is "a flexible one," id. at 594, 113 S.Ct. 2786, the Court must use these considerations to rule out "subjective belief or unsupported speculation." Id. at 590, 113 S.Ct. 2786.³

"Every federal court that has addressed the issue of the admissibility of expert testimony on MCS under Daubert has found such testimony too speculative to meet the requirement of `scientific knowledge.'" Frank, 972 F.Supp. at 136-37 (finding that "theory underlying MCS is untested, speculative, and far from general acceptance in the medical or toxicological community" and "fails to meet the standard of evidentiary reliability established in Daubert") (citing Bradley v. Brown, 852 F.Supp. 690, 700 (N.D.Ind.1994), aff'd, 42 F.3d 434 (7th Cir. 1994) ("plaintiff's own evidence clearly establishe[d] that the `science' of MCS's etiology has not progressed from the plausible, that is, the hypothetical, to knowledge capable of assisting a fact-finder, jury or judge"); Summers v. Missouri Pac. R.R. Sys., 897 F.Supp. 533, 542 (E.D.Okl.1995), aff'd, 132 F.3d 599 (10th Cir.1997) (adopting the reasoning and conclusions of Bradley and holding that plaintiffs "failed to show that the theories concerning MCS's causes have been adequately tested"); Sanderson v. Int'l Flavors and Fragrances, Inc., 950 F.Supp. 981, 1002 (C.D.Cal.1996) (concluding that, "given the present knowledge, Bradley and Summers correctly determined that MCS does not represent the reliable `scientific knowledge' which Daubert and Fed.R.Evid. 702 require"); Carlin v. RFE Indus., Inc., No. 88-CV-842, 1995 WL 760739, at *4 (N.D.N.Y. Nov. 27, 1995) (plaintiffs failed to establish that MCS's etiology was currently known or tested)); see also Cavallo v. Star Enter., 892 F.Supp. 756, 768 (E.D.Va.1995), aff'd in part and rev'd in part on other grounds, 100 F.3d 1150 (4th Cir.1996), cert. denied, ___ U.S. ___, 118 S.Ct. 684, 139 L.Ed.2d 631 (1998) (noting the "questionable scientific validity of MCS"); Kenneth R. Foster & Peter W. Huber, Judging Science: Scientific Knowledge and the Federal Courts 59 (1997) ("Chemical ecologists have failed to provide criteria that allow a doctor to decide when somebody does not suffer from MCS which is one of the main reasons MCS is regarded skeptically by mainstream medicine."); Federal Judicial Center, Reference Manual on Scientific Evidence 73 ("[c]linical ecologists have not been recognized by traditional professional organizations within the medical community...