Kuxhausen v. Tillman Partners, L.P.

• Decision Date: 12 December 2008
• Docket Number: No. 98,442.,98,442.
• Citation: 197 P.3d 859
• Parties: Stacy Lee KUXHAUSEN, Appellant, v. TILLMAN PARTNERS, L.P., Appellees.
• Court: Kansas Court of Appeals

197 P.3d 859

Stacy Lee KUXHAUSEN, Appellant, v. TILLMAN PARTNERS, L.P., Appellees.

No. 98,442.

Court of Appeals of Kansas.

December 12, 2008.

James L. Wisler, of Wisler Law Offices, of Lawrence, for appellant.

Jacqueline M. Sexton and Joseph J. Roper, of Foland, Wickens, Eisfelder, Roper & Hofer, P.C., of Kansas City, Missouri, for appellees.

Before McANANY, P.J., BUSER and LEBEN, JJ.

LEBEN, J.

When Stacy Kuxhausen reported for work at an accounting firm on a Monday morning in Manhattan, Kansas, she smelled paint and began to feel ill within minutes of entering the building. She said that her eyes burned, that she started to get a sore throat, and that she had to take deep breaths to get enough air. She later learned that epoxy-based paints had been applied in the basement of the building on the preceding Friday and Saturday. Kuxhausen came back to the building twice more over the next few days but stayed for only a few hours each time. She estimated that she spent a total of 8 hours in the building after it had been painted.

Kuxhausen claims that she now has an ongoing sensitivity to a variety of chemicals she encounters in her daily life. She has sued the building owners, claiming that all of this is due to her exposure to paint fumes on either that Monday morning in 2004 or on the two later visits. She sought damages of about $2.5 million.

In support of her claim, Kuxhausen presented a medical doctor's testimony that she suffers from what that doctor and some others call multiple-chemical sensitivity. But most medical authorities say that multiple-chemical sensitivity is not a recognized diagnosis, and the district court ruled that the expert testimony Kuxhausen sought to present wasn't sufficiently reliable to be admitted in a Kansas court. And without expert testimony, Kuxhausen has no claim because it's certainly not self-evident to a layperson that a relatively brief exposure to paint fumes may lead to permanent sensitivity to a variety of chemicals.

The district court's ruling that expert testimony was needed for Kuxhausen to proceed with her claim was not appealed. So Kuxhausen's claim rests upon the admissibility of her expert's testimony. Specifically, we must determine whether evidence about multiple-chemical sensitivity is admissible under Kansas law and whether, aside from that specific diagnosis, the district court properly excluded the doctor's testimony that Kuxhausen's ongoing problems were caused by her exposure to epoxy-paint fumes. Because Kansas law does not allow for expert opinions drawn from scientific principles that have not earned general acceptance, the district court properly excluded expert testimony that Kuxhausen suffers from multiple-chemical sensitivity, a diagnosis that is not generally accepted. In addition, because Kansas law authorizes a district judge to exclude expert testimony that is based on unsupported assumptions or theoretical speculation, the district court properly excluded expert testimony that Kuxhausen's ongoing problems with exposure to chemicals were caused by her brief exposure to epoxy-paint fumes.

I. The District Court Properly Excluded Expert Testimony About Multiple-Chemical Sensitivity.

In the Kansas Rules of Evidence, the legislature has given trial judges a role in determining when expert testimony may be admitted into evidence. K.S.A. 60-456(b) allows only expert opinions that "the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness." Thus, by statute, an expert's opinion must be based on facts or data and be within the expert's field of training.

Kansas courts have applied a qualification to this statutory standard with respect to testimony about a new or experimental scientific technique: we condition the admissibility of expert testimony about new or experimental scientific techniques to ones generally accepted as reliable in the relevant scientific community. Kuhn v. Sandoz Pharmaceuticals Corp., 270 Kan. 443, Syl. ¶¶ 2-3, 14 P.3d 1170 (2000). This limitation is based upon a 1923 case from the District of Columbia, Frye v. United States, 293 F. 1013 (D.C.Cir.1923), and is generally referred to as the Frye test.

As we will soon discuss in greater detail, multiple-chemical sensitivity is an emerging diagnosis that is accepted by only a limited number of medical doctors. Kansas has applied the Frye test when deciding whether to allow testimony about an emerging medical diagnosis. In State v. Marks, 231 Kan. 645, 654, 647 P.2d 1292 (1982), the court upheld the district court's admission of expert testimony from a psychiatrist about rape-trauma syndrome because a review of medical literature showed that it was "generally accepted to be a common reaction to sexual assault." Similarly, in State v. Heath, 264 Kan. 557, 574-75, 577-78, 957 P.2d 449 (1998), the court held that battered-child syndrome was "an accepted medical diagnosis" such that — even though the testimony was subject to the Frye test — the district court didn't need to hold a Frye hearing because courts had already broadly recognized that this was an accepted diagnosis.

The district court carefully reviewed Kuxhausen's evidence and the arguments about whether multiple-chemical sensitivity was a generally accepted medical diagnosis. The court concluded that it was not: "The position papers of the American Academy of Allergy, Asthma, and Immunology and the American College of Occupational and Environmental Medicine demonstrate irrefutably that [multiple-chemical sensitivity] ... is anything but an accepted medical diagnosis."

We review the district court's decision on the admissibility of evidence for abuse of discretion, though we independently review its understanding of legal principles. See State v. Moore, 287 Kan. 121, 135, 194 P.3d 18 (2008). We also may go beyond the record in reviewing relevant literature to determine whether a particular scientific principle or technique subject to Frye, like the medical diagnosis at issue here, has gained general acceptance. See Marks, 231 Kan. at 654, 647 P.2d 1292; State v. Graham, 275 Kan. 176, 185, 61 P.3d 662 (2003); State v. Witte, 251 Kan. 313, 326-27, 836 P.2d 1110 (1992); Monahan & Walker, A Judge's Guide to Using Social Science, 43 Ct. Rev. 156, 162 (2007). But whether we review here only for abuse of discretion or make an independent judgment — and whether we rely only upon the record or go beyond it — the district court's conclusion is well-taken.

The district court and the parties discuss in detail the position statements of the American Academy of Allergy, Asthma, and Immunology ("the Academy") and the American College of Occupational and Environmental Medicine ("the College"). The Academy's paper discusses several other medical organizations' position statements that point out the "shortcomings" of this diagnosis and "the lack of scientific support for and clinical evidence of the alleged toxic effects from environmental chemicals in these particular patients." The Academy reported that several environmentally caused diseases, such as Legionnaires' disease, have been documented. But for the documented diseases caused by environmental contaminants, "patients experience a limited range of symptoms," not broad reactions to multiple chemicals. The Academy concluded that there was no proven causal connection between environmental exposure to chemicals and the broad-based symptoms being reported by some patients:

"[Idiopathic environmental intolerances] — also called environmental illness and multiple chemical sensitivities — has been postulated to be a disease unique to modern industrial society in which certain persons are said to acquire exquisite sensitivity to numerous chemically unrelated environmental substances. The patient experiences wide-ranging symptoms, but evidence of pathology or physiologic dysfunction in such patients has been lacking in studies to date. Because of the subjective nature of the illness, an objective case definition is not possible. Allergic, immunologic, neurotoxic, cytotoxic, pscyhologic, sociologic, and iatrogenic theories have been postulated for both etiology and production of symptoms, but there is an absence of scientific evidence to establish any of these mechanisms as definitive. Most studies to date, however, have found an excess of current and past psychopathology in patients with this diagnosis. The relationship of these findings to the patient's symptoms is also not apparent. Rigorously controlled studies to verify the patient's reported subjective sensitivity to specific environmental chemicals have yet to be done. Moreover, there is no evidence that these patients have any immunologic or neurologic abnormalities. In addition, no form of therapy has yet been shown to alter the patient's illness in a favorable way. A causal connection between environmental chemicals, foods, and/or drugs and the patient's symptoms continues to be speculative and cannot be based on the results of currently published scientific studies." (Emphasis added.)

The Academy prefers the name "idiopathic environmental intolerances" to multiple-chemical sensitivity. Doctors use the term idiopathic to refer to something for which the cause is unknown. The Academy noted that the new name was suggested at a conference sponsored by the World Health Organization because the commonly used name, multiple-chemical sensitivity, makes "`an unsupported judgment on causation'" and was not based either on "`accepted theories of underlying mechanisms'" or on "validated clinical criteria for diagnosis." The College agreed that even the name multiple-chemical sensitivity had no scientific basis: "[The College] concurs with many prominent medical organizations that evidence does not yet exist to define [multiple-chemical sensitivity] as a...