Gabbard v. Linn-Benton Housing Authority

• Decision Date: 31 July 2002
• Docket Number: Civil No. 99-6092-TC.,Civil No. 01-6316-TC.
• Parties: James D. GABBARD, Plaintiff, v. LINN-BENTON HOUSING AUTHORITY, Defendant. Jan Wroncy, Plaintiff, v. Oregon Department of Transportation, Defendant.
• Court: U.S. District Court — District of Oregon

219 F.Supp.2d 1130

James D. GABBARD, Plaintiff, v. LINN-BENTON HOUSING AUTHORITY, Defendant.

Jan Wroncy, Plaintiff, v. Oregon Department of Transportation, Defendant.

Civil No. 01-6316-TC.

Civil No. 99-6092-TC.

United States District Court, D. Oregon.

July 31, 2002.

Edward Johnson, Oregon Law Center, Portland, OR, Roy V. Smith, Legal Aid Services of Oregon Albany Regional Office, Albany, OR, Spencer M. Neal, Portland, OR, for plaintiff James D. Gabbard.

Katherine S. Somervell, Bullivant Houser Bailey, PC, Portland, OR, for defendant Linn Benton Housing Authority.

Jan Wroncy, Blachley, OR, pro se.

David A. Landrum Salem, OR, for defendant Oregon Department of Transportation.

ORDER

COFFIN, United States Magistrate Judge.

In these two cases, the court is presented with the issue of whether a diagnosis of "multiple chemical sensitivity"¹ has a sufficient scientific basis to be presented to the factfinder by expert witnesses under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and, if so, whether a reasonable jury could find that either plaintiff has established that the respective defendants caused their injuries.² Presently before the court are defendant Linn-Benton Housing Authority's motion in limine to exclude evidence (# 22)³ and defendant Oregon Department of Transportation's motion for summary judgment (# 53). For the reasons stated below, the defendants' motions are granted and the cases are dismissed.

FACTUAL BACKGROUND⁴

Plaintiff James Gabbard is a resident of a Corvallis, Oregon apartment located in a complex managed by defendant Linn-Benton Housing Association. Shortly after securing his apartment, plaintiff Gabbard notified the manager that he suffered from multiple chemical sensitivity syndrome, which disables him, and requires that he avoid exposure to various chemicals. During plaintiff Gabbard's tenancy, defendant used some chemicals in and around his apartment, and plaintiff Gabbard asserts that such chemical use has caused him to suffer "bodily injury, such as stomach aches, head aches, nausea, vision problems and sleep loss." Amended Complaint (# 19) at 4. He contends that such use violates the Fair Housing Act, the Americans with Disabilities Act and the Rehabilitation Act.

Plaintiff Jan Wroncy is a resident of Blachly, Oregon, who also claims to suffer from multiple chemical sensitivity syndrome. She alleges that defendant Oregon Department of Transportation sprays chemical herbicides along its highways, and that those applications cause her to suffer disabling symptoms when she comes into contact with the areas so sprayed. She asserts that such use violates the Americans with Disabilities Act.

STANDARDS FOR SUMMARY JUDGMENT

Summary judgment is appropriate where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The initial burden is on the moving party to point out the absence of any genuine issue of material fact. Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The court must view the evidence in the light most favorable to the nonmoving party. Bell v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir.1982). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir.1976). The inferences drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Valandingham v. Bojorquez, 866 F.2d 1135, 1137 (9th Cir.1989). Where different ultimate inferences may be drawn, summary judgment is inappropriate. Sankovich v. Life Insurance Co. of North America, 638 F.2d 136, 140 (9th Cir.1981).

Deference to the non-moving party does have some limit. The non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R.Civ.P. 56(e) (emphasis added). The "mere existence of a scintilla of evidence in support of the plaintiff's position would be insufficient." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Therefore, where "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

DISCUSSION

I. "Multiple Chemical Sensitivity" Syndrome and Daubert.

District courts are charged with the task of evaluating scientific evidence for admissibility before a party can submit it to the factfinder for consideration.⁵ For many decades, the courts were guided in their analyses of such evidence by the "general acceptance" test articulated in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). This test instructed courts to exclude scientific evidence whenever its underlying scientific principles were not "sufficiently established to have gained general acceptance in the particular field in which [they belong]." Id. at 1014. However, in 1993 the United States Supreme Court overturned this standard, holding that the adoption of the Federal Rules of Evidence had superceded Frye. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 585-587, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

Under Daubert, when faced with expert scientific testimony, a district court must⁶ determine at the outset, pursuant to Fed.R.Evid. 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." Daubert, 509 U.S. at 592, 113 S.Ct. 2786.⁷ By using such a standard, the court ensures that the evidence received is both relevant ("will assist the trier of fact") and reliable ("scientific knowledge"). Reliability is verified by assessing "whether the reasoning or methodology underlying the testimony is scientifically valid." Id. at 592-593, 113 S.Ct. 2786.⁸ Relevance is determined by ascertaining "whether [that] reasoning or methodology properly can be applied to the facts in issue." Id at 593, 113 S.Ct. 2786.⁹

To the court's knowledge, no district court has ever found a diagnosis of multiple chemical sensitivity ("MCS") to be sufficiently reliable to pass muster under Daubert. See, e.g., Summers v. Missouri Pac. R.R. Sys., 132 F.3d 599 (10th Cir. 1997); Frank v. State of New York, 972 F.Supp. 130 (N.D.N.Y.1997); Sanderson v. Int'l Flavors and Fragrances, Inc., 950 F.Supp. 981 (C.D.Cal.1996); Carlin v. RFE Indus., Inc., 1995 WL 760739 (N.D.N.Y.1995); Cavallo v. Star Enter., 100 F.3d 1150 (4th Cir.1996); Bradley v. Brown, 42 F.3d 434 (7th Cir.1994); Brown v. Shalala, 15 F.3d 97 (8th Cir.1994); Coffin v. Orkin Exterminating Co., 20 F.Supp.2d 107 (D.Me.1998); Coffey v. County of Hennepin, 23 F.Supp.2d 1081 (D.Minn.1998); Comber v. Prologue, 2000 WL 1481300 (D.Md.2000). The cases cited by plaintiff Gabbard that have allowed testimony to reach the factfinder are not to the contrary; they either did not deal with the scientific validity of MCS under Daubert (see, e.g., Whillock v. Delta Air Lines, Inc., 926 F.Supp. 1555 (N.D.Ga.1995))¹⁰ or excluded MCS testimony but allowed testimony on other issues and scientifically valid diagnoses (see, e.g., Treadwell v. Dow-United Technologies, 970 F.Supp. 974, 982 (M.D.Ala.1997)).¹¹ Plaintiff Gabbard's "case-by-case" approach, mentioned by some of these courts, is inapplicable here where the issue is whether or not evidence of MCS is admissible. Whether or not plaintiffs are "disabled" under the ADA or the Rehabilitation Act — which must be determined on a case-by-case basis — is not the focus of the inquiry; whether their treating physicians' diagnoses of MCS is admissible evidence is. As have all other courts which have considered the issue, the court finds that such evidence must be excluded.

As described above, Daubert recommended that courts consider four nondispositive factors in examining the admissibility of scientific evidence: whether it (1) can be and has been tested; (2) has been subjected to peer review and publication; (3) has a known or potential rate of error; and (4) has attained general acceptance in the pertinent scientific community. Daubert, 509 U.S. at 593-594, 113 S.Ct. 2786. Plaintiffs' proffered MCS evidence fails at each inquiry.

The first question is really the foundation for scientific inquiry in general: has a given theory been tested to show that, indeed, the hypothesized condition or relationship exists? In the instant case, the questions are: has there been testing done to verify that MCS is truly a valid medical condition, and if so, have the plaintiffs been tested sufficiently to demonstrate that they have it? The answer to both questions is clearly no. Even plaintiffs — and their expert physicians — admit that the existence of MCS as a condition is in the "testing" or "evolving" phase of its existence. Further, plaintiffs, who argue that testing for the condition in those suspected to have it would be unethical,¹² implicitly state that no significant testing has been done in general or on these plaintiffs in particular.¹³ Defendants' expert, in his affidavit, goes further:

13. . . . Drs. Dart and Heitsch [plaintiff Gabbard's physicians and experts] do not appear to conform with evidence based medicine and thereby practice outside the usual bounds of science and medicine. They fail to use validated and accepted laboratory tests to aid in diagnosis and they also fail to use laboratory tests to follow-up their treatment modalities in order to determine the efficacies of their treatments.

14. MCS is not a condition recognized by evidence based practitioners of...