Reichert v. Phipps
| Citation | 2004 WY 7,84 P.3d 353 |
| Decision Date | 11 February 2004 |
| Docket Number | No. 02-159,02-159 |
| Parties | DELORES J. REICHERT, Petitioner, v. JAMES A. PHIPPS and GARY L. LANPHIER, Respondents. |
| Court | Wyoming Supreme Court |
Representing Petitioner: Richard Wolf of Wolf & Tiedeken, LC, Cheyenne, Wyoming; and Jerry M. Smith of Sigler & Smith, Torrington, Wyoming.
Representing Respondents: John A. Sundahl and Brian J. Hanify of Sundahl, Power, Kapp & Martin, Cheyenne, Wyoming; and J. Kent Rutledge and Kevin C. Cook of Lathrop & Rutledge, P.C., Cheyenne, Wyoming.
Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
[¶ 1] The petitioner, in a civil negligence action, has asked this Court to review the trial court's order prohibiting her from offering evidence at trial that the automobile collision at issue caused the fibromyalgia from which she suffers. Finding an abuse of discretion, we reverse.
[¶ 2] Did the trial court abuse its discretion in excluding expert testimony that the automobile collision caused, contributed to, or triggered fibromyalgia?
[¶ 3] On August 26, 1996, the petitioner, Delores J. Reichert, was injured in an automobile accident that she claims was caused by the respondents, James Phipps and Gary Lanphier. She has filed a civil action in the district court in Goshen County, wherein she seeks recovery from the respondents for her injuries. The petitioner has designated two of her treating physicians, Robin R. Ockey, M.D., and Robert Monger, M.D., to testify that she suffers from fibromyalgia (FM) and that the FM was caused by the automobile accident. FM is a chronic musculoskeletal pain syndrome more fully described as follows:
FM is a syndrome of widespread pain, decreased pain threshold, and characteristic symptoms, including non-restorative sleep, fatigue, stiffness, mood disturbance, irritable bowel syndrome, headache, paresthesias, and other less common features. Widespread pain has generally been defined by the number of body regions involved . . . or by a pattern of pain complaint that involves both sides of the body, upper and lower body, and axial skeleton. Decreased pain threshold (tenderness) is indicated by the proportion of specific sites that elicit complaints of pain on palpation.
Frederick Wolfe, The Fibromyalgia Syndrome: A Consensus Report on Fibromyalgia and Disability, 23 Journal of Rheumatology 534, 534 (1996) (footnotes omitted).
[¶ 4] In response to the petitioner's designation of expert witnesses, the respondents filed a Motion in Limine to Exclude Fibromyalgia Causation Claims and Motion for Determination Under Rule 56(d) of the Wyoming Rules of Civil Procedure.1 The respondents do not contend that FM is not a recognized syndrome nor do they suggest that the petitioner does not suffer from FM. Rather, their position is that there is insufficient scientific knowledge to support the theory that FM can be caused by physical trauma. The trial court agreed with the respondents and granted their motion. In August 2002, we granted the petitioner's Petition for Writ of Review as to that question.
[¶ 5] Trial court rulings on the admissibility of evidence are reviewed for an abuse of discretion. Clark v. Gale, 966 P.2d 431, 435 (Wyo. 1998). The ultimate issue is whether the trial court reasonably could have concluded as it did or whether it exceeded the bounds of reason under the circumstances. Id. (quoting Hilterbrand v. State, 930 P.2d 1248, 1250 (Wyo. 1997)
). This standard applies to a trial court's exclusion of expert testimony. Chapman v. State, 2001 WY 25, ¶ 8, 18 P.3d 1164, 1169 (Wyo. 2001); Bunting v. Jamieson, 984 P.2d 467, 470 (Wyo. 1999).
[¶ 6] Expert testimony is admissible if it meets the requirements of W.R.E. 702:
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.
[¶ 7] The United States Supreme Court has described a "gatekeeper" function for the trial court under Rule 702, whereby the reliability of proferred expert testimony is tested. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), cert. denied, 516 U.S. 869 (1995). In Bunting, we adopted the Daubert analysis and made clear that it applies to the "opinions of a treating physician based on medical knowledge within the physician's specific area of expertise." Bunting, 984 P.2d at 471.
The primary goal of Daubert's gatekeeping requirement" is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field."
Id. (quoting Black v. Food Lion, Inc., 171 F.3d 308, 311 (5th Cir. 1999)
).
[¶ 8] In Bunting, we adopted Daubert's two-part test: first, the trial court is to determine whether the methodology or technique used by the expert is reliable, and second, the trial court must determine whether the proposed testimony "fits" the particular case. Bunting, 984 P.2d at 471. We also noted with approval the non-exclusive criteria that have been utilized to guide trial courts in making that first determination:
1) whether the theory or technique in question can be and has been tested; 2) whether it has been subjected to peer review and publication; 3) its known or potential rate of error along with the existence and maintenance of standards controlling the technique's operation; . . . 4) the degree of acceptance within the relevant scientific community[;] . . . [5)] the extensive experience and specialized expertise of the expert[;] . . . [6)] whether the expert is proposing to testify about matters growing naturally and directly out of research [he has] conducted independent of the litigation; and [7)] the non-judicial uses to which the method has been put[.]
Id. at 472. As to the second part of Daubert's two-part test—whether the expert testimony "fits" the particular facts of the case—we concluded in Bunting that this is a question of relevance that incorporates the concept of "helpfulness" found in W.R.E. 702. In other words, "`the expert's opinion must relate to an issue that is actually in dispute and must provide "a valid scientific connection to the pertinent inquiry."'" Bunting, 984 P.2d at 472 (quoting Graham v. Playtex Products, Inc., 993 F.Supp. 127, 130 (N.D.N.Y. 1998)
[¶ 9] Finally, we also recognized in Bunting, 984 P.2d at 471-73, three inter-related considerations that should be kept in mind by a trial court when performing the Daubert gatekeeping function. First, the trial court may consider one or more of the criteria mentioned in Daubert, but those factors may not all be helpful in every case, so the test must remain flexible enough to give the trial court broad latitude in determining reliability. Second, expert testimony must be based upon reliable methodology, but it need not be so persuasive as to meet the proponent's burden of proof on an issue. "Shaky" but admissible evidence can be tested through traditional means, such as cross-examination, contrary evidence, and careful jury instruction. And third, a trial court's exclusion of evidence as unreliable is potentially inconsistent with the jury's duty to evaluate witness credibility and to assign evidentiary weight. To avoid usurping the jury's role, the trial court should limit its assessment to the soundness of the scientific principles and the propriety of the methodology and should not concern itself with the scientific validity of the conclusions offered by the expert.
[¶ 10] We begin this discussion with a reminder of what it is this Court is deciding. We are not deciding whether trauma can cause FM, or even whether, as a general proposition, there is sufficient scientific foundation for the theory to allow juries to decide the issue as a question of fact. Rather, under an abuse of discretion standard, we are reviewing a district court's determination concerning a particular motion in limine. For that reason, cases from other jurisdictions that have considered FM as an element of damages are informative, but are not of great precedential value because different materials were available at the motion hearings in those cases.2 The question before us is limited to whether this particular trial court, given the evidence and arguments at the time, reasonably could have concluded as it did. The United States Court of Appeals for the Tenth Circuit has described the narrowness of such review as follows:
[W]e note that the scope of our review is quite narrow: we may reverse the district court's ruling only if we conclude that it abused its discretion in applying Daubert to exclude opinions of the Hollanders' experts. Because the district court has discretion to consider a variety of factors is [sic.] assessing reliability under Daubert, and because, in light of that discretion, there is not an extensive body of appellate case law defining the criteria for assessing scientific reliability, we are limited to determining whether the district court's application of the Daubert [sic.] manifests a clear error of judgment or exceeds the bounds of permissible choice in the circumstances. See McEwen [v. City of Norman, Okla.,] 926 F.2d [1539,] 1553-54 [(10th Cir.1991)] (). Thus, when coupled with this deferential standard of review, Daubert's effort to safeguard the reliability of science in the courtroom may produce...
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