Frank v. State of New York

• Citation: 972 F.Supp. 130
• Decision Date: 15 July 1997
• Docket Number: Nos. 95-CV-399 to 95-CV-401.,s. 95-CV-399 to 95-CV-401.
• Parties: Kathleen FRANK, Plaintiff, v. STATE OF NEW YORK, et. al., Defendants. Gretchen PUSEY, Plaintiff, v. STATE OF NEW YORK, et. al., Defendants. Mary Elizabeth BEAUDOIN, Plaintiff, v. STATE OF NEW YORK, et. al., Defendants.
• Court: U.S. District Court — Northern District of New York

972 F.Supp. 130

Kathleen FRANK, Plaintiff, v. STATE OF NEW YORK, et. al., Defendants.

Gretchen PUSEY, Plaintiff, v. STATE OF NEW YORK, et. al., Defendants.

Mary Elizabeth BEAUDOIN, Plaintiff, v. STATE OF NEW YORK, et. al., Defendants.

Nos. 95-CV-399 to 95-CV-401.

United States District Court, N.D. New York.

July 15, 1997.

Maynard, O'Connor, Smith, Catalinotto & D'Agostino,Albany, NY (Brendan F. Baynes, of counsel), for Plaintiffs.

Law Office of Peter Henner, Clarksville, NY (Peter Henner, of counsel), for Defendant Paul Greenberg.

Dennis C. Vacco, Attorney General of the State of New York, Albany, NY (Karen Marcoux Mankes, Asst. Attorney General, of counsel), for Defendant State of New York and Other Defendants.

MEMORANDUM, DECISION AND ORDER

McAVOY, Chief Judge.

This case presents the question of whether expert testimony concerning "multiple chemical sensitivity" ("MCS") is inadmissible as a matter of law under the Federal Rules of Evidence in an action brought pursuant to the Americans With Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA").

I. BACKGROUND

Plaintiffs in these consolidated actions are former employees of defendant New York State Department of Taxation and Finance ("the Department"). Plaintiff Kathleen Frank was employed by the Department as a Supervisor of Data Processing at the time of her November 4, 1993 termination. Plaintiff Gretchen Pusey was employed as a Calculations Clerk when she was terminated in November of 1994, and plaintiff Mary Beaudoin was an Associate Computer Programmer/Analyst at the time of her April, 1994 termination. Each had been employed by the Department for at least ten years.

Plaintiffs allege that they were exposed to pesticides and other agents in October of 1991 in Building 8 of the New York State Campus in Albany, New York (Beaudoin Compl. ¶ 7; Frank Compl. ¶ 7; Pusey Compl. ¶ 7). Plaintiffs further allege that this initial acute exposure has rendered them hypersensitive to normal, everyday levels of airborne environmental chemicals and pollutants. (Pl. Mem. in Opp. at 1). It is this "disability," to wit, MCS, of which plaintiffs complain. Plaintiffs allege that their condition manifests itself in symptoms such as (but not limited to) fatigue, severe headaches, numbness, respiratory infections, vomiting, insomnia, anxiety and depression. (Id.)

Plaintiffs further allege that the State of New York and the Department have violated their rights by failing to make "reasonable accommodations" for their "disabilities." (Pl. Mem. in Opp. at 1). Also named as defendants are seven individual defendants who are employees of the Department. These individuals, in both their official and individual capacities, are alleged to have discriminated against plaintiffs on the basis of their disabilities and failed to provide plaintiffs with reasonable accommodations. Plaintiffs also bring claims under 42 U.S.C. § 1981a, the New York Human Rights Law, Executive Law § 296, the New York Civil Service Law, and New York common law. Plaintiffs seek a declaratory judgment, compensatory and punitive damages, reinstatement or front pay, costs and attorneys' fees.

II. Discussion

A. Defendants' Motion

During discovery in these cases, plaintiffs disclosed in their Local Practice Rule 26.3 notices that they planned to call a number of expert witnesses. Defendants now move, in limine, to exclude the testimony of such witnesses to the following effect:

1) Drs. Michael Lax, Eckardt Johanning, Carol Burgess, Mark Schimelman, Stuart Erner: These experts are medical doctors who will testify that one or all of the plaintiffs suffer from a physical or mental impairment that substantially limits their ability to work, namely MCS. This impairment was caused by exposure to various chemicals and substances while plaintiffs worked in Building 8. The essence of such testimony will be that plaintiffs suffer unusually severe reactions to low-levels of chemicals and environmental pollutants, causing the symptoms described above. Finally these experts will testify that plaintiffs do not suffer these symptoms while at home.

2) Drs. Orgel and Lovejoy: These experts, both medical doctors, will testily to the same effect as the above experts in virtually all respects. They do not, however, use the term MCS or make reference to any specific disorder. They do contend that Pusey and Frank suffer from a physical and mental impairment that substantially limits their ability to work, caused and aggravated by exposure to chemicals at Building 8.

3) Drs. Charles Golden, Joan Gold, Maria Lifrak, Louis Calabro and David Horenstein: Defendants object to any testimony by these psychologists to the effect that any mental impairment from which plaintiffs suffer was caused by their exposure to chemicals at Building 8. Moreover, defendants object to any of these experts' diagnoses to the extent that they are based upon the MCS hypothesis.

In sum, defendants object to any expert testimony attributing to plaintiffs the "disability" of MCS.

Defendants additionally object to any testimony by these experts that is beyond their field of expertise. For example, defendants object to the proposed testimony of Dr. Jeffrey Perkins, an internist, to the effect that Pusey suffers from a "phobic disorder," where he is not shown to have any expertise in psychology or psychiatry.¹

B. Defining MCS

Before venturing further, some discussion of what is encompassed in a diagnosis of MCS is warranted. Simply put, 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). Dr. Lax avers in an affidavit that MCS "is generally defined as an acquired disorder or syndrome in which the patient has recurring multiple symptoms in response to exposure to chemical compounds at levels which are well below levels known to cause harmful effects in the general population." (Lax Aff. ¶ 3). Such chemical compounds are emitted by pesticides, copy machine toners, carpet cleaners, floor cleaners, inks, paints, oils, human nail polishes, perfumes and deodorants. (Mankes Aff. Ex. C ¶ 1(a)).

These somewhat shorthanded definitions comport generally with a definition first proposed in 1987 and later endorsed by the American College of Occupational and Environmental Medicine ("ACOEM") in 1993. E.E. Sikorski, H.M. Kipen, J.C. Selner, C.M. Miller and K.E. Rogers, Roundtable Summary: The Question of Multiple Chemical Sensitivity, 24 FUNDAM. APPL. TOXICOL. 22-28 (1995) [hereinafter Roundtable Summary]. That definition includes the following elements: (1) an initial, identifiable environmental exposure resulting in the onset of symptoms; (2) symptoms ranging among multiple organ systems, i.e. nervous and respiratory systems; (3) symptoms recurring and abating in response to exposures to very low levels of diverse chemicals; and (4) symptoms that cannot be accounted for by other medical conditions. Id. at 24, Table 1.²

It is diagnoses such as these, and expert testimony regarding such diagnoses with which defendants take issue. Although defendants have not had discovery into plaintiffs' experts, they contend that testimony Lased upon MCS is inadmissible as a matter of law under the governing evidentiary standard.

C. Standard of Admissibility for Expert Testimony

Under F.R.E. 104(a), "[p]reliminary questions concerning ... the admissibility of evidence shall be determined by the court ...". Defendants argue that the expert testimony at issue is inadmissible under F.R.E. 702, which provides that expert opinion 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 ...". The Supreme Court, in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), recently made explicit the standard district courts must apply in evaluating the admissibility of scientific evidence:

Faced 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 ...

Id. at 591, 113 S.Ct. at 2796 (footnotes omitted). Requiring that an expert's testimony be based on "`scientific knowledge' establishes a standard of evidentiary reliability." Id. at 590, 113 S.Ct. at 2795.³

Courts are to consider the following factors in making this preliminary assessment: (1) whether the scientific theory can be 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. at 2796-97.

1. Testability/Potential Rate of Error

"`Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry.'" Daubert, 509 U.S. at 593, 113 S.Ct. at 2796 (quoting Green, Expert Witnesses and Sufficiency of Evidence in Toxic Substances Litigation: The Legacy of Agent Orange and Bendectin Litigation, 86 Nw. U.L.REV. 643, 645 (1992)).

Dr. Lax himself concedes that "a test for the existence of MCS does not presently exist and that exposures to certain chemicals cannot recreate MCS symptoms to a scientific certainty[.]" (Lax Aff. ¶ 6). A survey of practices among members of the Association of Occupational and Environmental Clinics...