Moore v. Ashland Chemical, Inc.

Decision Date20 October 1997
Docket NumberNo. 95-20492,95-20492
Citation126 F.3d 679
Parties47 Fed. R. Evid. Serv. 881 Bob T. MOORE and Susan Moore, Plaintiffs-Appellants Cross-Appellees, v. ASHLAND CHEMICAL, INC. and Ashland Oil, Inc., Defendants-Appellees Cross-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

W. Eugene Davis, Circuit Judge, issued dissenting opinion.

Robert Dale Green, Michael L. Davis, Green, Davis & Barton, Houston, TX, for Bob and Susan Moore.

Debora M. Alsup, Julie Caruthers Parsley, Thompson & Knight, Austin, TX, William Lowell Banowsky, Thompson & Knight, Dallas, TX, William Kyle Carpenter, Woolf, McClane, Bright, Allen & Carpenter, Knoxville, TN, for Ashland Chemical, Inc. and Ashland Oil, Inc.

Terry Lynn Jacobson, Dawson, Sodd, Moe and Means, Corsicana, TX, for Dow Corning Corp. and CDC Services, Inc.

David G. Matthiesen, Houston, TX, for CDC Services, Inc.

Appeals from the United States District Court for the Southern District of Texas.

Before DAVIS and DENNIS, Circuit Judges, and FALLON, District Judge 1:

DENNIS, Circuit Judge:

In this negligence case, we are called upon to determine the standards for assessing the reliability of the proffer of a clinical physician's expert opinion as to the cause of a plaintiff's disease in the light of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). We conclude that: (1) the basic principles of the Federal Rules of Evidence recognized by Daubert apply to the admission or exclusion of every type of expert testimony; (2) a trial judge, therefore, must assess every proffer of expert testimony to determine whether it is relevant to the case and reliable under the principles and methodology of the discipline involved; (3) the Supreme Court in Daubert interpreted "scientific knowledge" under Federal Rule of Evidence 702 to mean knowledge obtained and tested by the scientific method, i.e. "hard" or "Newtonian" scientific knowledge; (4) accordingly, the Daubert Court indicated that a trial court should assess the reliability of expert testimony professedly based on "hard" scientific knowledge using several factors, the "Daubert factors," which are "hard" science methods or techniques; (5) clinical medicine (as opposed to research and laboratory medical science) is not a hard science discipline; its goals, subject matter, conditions of study and well developed methodology are sui generis and quite different from that of hard science and its methodology; (6) consequently, a trial judge assessing the reliability of the proffer of a clinical physician's expert testimony based on clinical medical knowledge should determine whether it is soundly grounded in the knowledge, principles and methodology of clinical medicine; the "Daubert factors," which are techniques derived from hard science methodology, are, as a general rule, inappropriate for use in making the reliability assessment of expert clinical medical testimony.

The foregoing conclusions are the results of our conscientious efforts to determine the standard for admitting clinical medical testimony under the Federal Rules of Evidence as interpreted by the Supreme Court in Daubert and by this court in Watkins v. Telsmith, Inc., 121 F.3d 984 (5th Cir.1997) and other authorities cited herein. They represent neither a "let it all in" nor a "keep it all out" view. Instead, they reflect the interplay of the basic principles of the Federal Rules of Evidence, viz., the liberal standards of admissibility and relevance of Rules 401 and 402 and the assumption underlying Rules 702 and 703 "that the expert's opinion will have a reliable basis in the knowledge and experience of his discipline." Daubert, 509 U.S. at 587, 592, 113 S.Ct. at 2793, 2796.

I. Introduction

Plaintiffs-appellants, Bob T. Moore and his wife, Susan Moore, filed this suit against the defendants-appellees in Texas state court, alleging that Moore had contracted reactive airways disease as the result of the defendants-appellees' negligence in causing Moore to be exposed to a mixture of chemical gases on their premises. Defendants-appellees removed the suit to federal court on diversity grounds.

Before trial the plaintiffs proffered the testimony of two well credentialed clinical physician experts, Dr. Daniel Jenkins and Dr. Antonio Alvarez, who expressed identical opinions based on clinical medical methodology that Bob T. Moore suffered from reactive airways disease that had been caused by his inhalation of the mixture of chemical gases on defendants-appellees' premises. Dr. Jenkins based his opinion on his firsthand observations in examining and taking a history from Bob T. Moore, on the results of tests he performed or had performed on Moore, and on facts and data he obtained from other physicians who had previously examined, tested and treated Moore. Dr. Alvarez essentially adopted the facts, data and conclusions developed and compiled by Dr. Jenkins. To confirm his opinion before the proffer, Dr. Jenkins reviewed and considered reports he received of Dr. Alvarez's subsequent treatment and allergy testing of Bob T. Moore. In response, the defendants-appellees moved to exclude the testimony of Dr. Jenkins and Dr. Alvarez on the grounds that the proffers failed to demonstrate reliable bases for their opinions.

The trial court concluded that the proffer of Dr. Jenkins' testimony demonstrated a reliable basis for his diagnosis of Moore's reactive airways disease. However, the court excluded Dr. Jenkins' opinion that Moore's exposure to the chemicals caused the disease on dual grounds, viz., (1) that under Federal Rule of Evidence 702 the opinion did not have a reliable basis, and (2) that under Federal Rule of Evidence 403 the probative value of the opinion was outweighed by the prejudice that would be caused by Dr. Jenkins' highly impressive qualifications. The trial court admitted Dr. Alvarez's opinions as to both diagnosis and cause of disease as evidentiarily reliable, despite the fact that Dr. Alvarez relied heavily on Dr. Jenkins' opinion and based his own opinion essentially on the same data that had been developed and used by Dr. Jenkins.

At the jury trial, Dr. Jenkins' testimony was limited to his diagnosis of Moore's disease and did not touch on causation. Dr. Alvarez testified as to both the diagnosis and the cause of the disease. Dr. Alvarez, however, was forced to admit that in forming his opinions he relied heavily on the work and opinions of Dr. Jenkins. Dr. Alvarez was unable to explain possible discrepancies in the data he used that had been compiled by Dr. Jenkins. Counsel for the defendants-appellees in closing argument pointed out that Dr. Alvarez was not as highly qualified as their medical causation expert who testified that Moore's disease had not been caused by exposure to the mixture of chemicals.

The jury answered "No" to an interrogatory asking whether the negligence, if any, of the defendants-appellees had proximately caused the injury in question. The district court entered a take nothing judgment against the plaintiffs. The plaintiffs appealed, assigning as error the trial court's ruling that excluded Dr. Jenkins' testimony as to his opinion or inference that Moore's disease had been caused by his exposure to the chemicals he encountered at the defendant-appellees' facility.

II. Daubert's
Illumination and Impact

The trial court's oral ruling excluded Dr. Jenkins' opinion as to cause of disease under Rules 702 and 403, apparently based on the court's understanding of the Rules as interpreted and impacted by the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Therefore, before analyzing the trial court's interpretation and application of the law to the particular proffer of expert testimony, we will set forth our reading of the essential elements of the pertinent Federal Rules of Evidence that have been illumined and impacted by Daubert.

A. Rule 702

Rule 702 provides that:

If 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 admitting expert testimony, Rule 702 requires that two preliminary determinations be made by the trial court. First, the proffered witness must be qualified as an expert by knowledge, skill, experience, training, or education. Second, the proffered expert's opinion, inference or other testimony must be based on scientific, technical or other specialized knowledge that will assist the trier of fact to understand the evidence or determine a fact in issue. To facilitate discussion, we refer to these as the "qualifications" and "knowledge" components of Rule 702.

1. Qualifications

An expert must have scientific, technical or other specialized knowledge, and a witness may be qualified as an expert by reason of knowledge, skill, experience, training or education. Fed.R.Evid. 702; Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1110 (5th Cir.1991)(en banc ). Rule 702, according to the Advisory Committee Note, permits expert testimony not only by experts carrying formal credentials such as university degrees and professional memberships but also by so-called skilled witnesses, whose experiences permit them to testify with authority on a given topic. Id. The areas of inquiry that expert testimony may address are similarly broad, including scientific and technical questions as well as any other areas of specialized knowledge. Id. The question of whether the witness is sufficiently qualified as an expert is a matter to be decided by the court pursuant to Rule 104(a). United States v. Normile, 587 F.2d 784 (5th Cir.1978); Loftin & Woodard, Inc. v. United States, 577 F.2d 1206 (5th Cir.19...

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