Summers v. Missouri Pacific R.R. System

• Decision Date: 23 December 1997
• Docket Number: No. 96-7038,96-7038
• Citation: 132 F.3d 599
• Parties: , 48 Fed. R. Evid. Serv. 549, 97 CJ C.A.R. 3478 Jon Bradley SUMMERS; Glyn E. Potts, Plaintiffs-Appellants, v. MISSOURI PACIFIC RAILROAD SYSTEM, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 599

132 F.3d 599

39 Fed.R.Serv.3d 755, 48 Fed. R. Evid. Serv. 549,

97 CJ C.A.R. 3478

Jon Bradley SUMMERS; Glyn E. Potts, Plaintiffs-Appellants, v. MISSOURI PACIFIC RAILROAD SYSTEM, Defendant-Appellee.

No. 96-7038.

United States Court of Appeals, Tenth Circuit.

Dec. 23, 1997.

Edward J. Kionka, Carbondale, IL, for Plaintiffs--Appellants.

David Lee Crawford, Houston, TX, for Defendant--Appellee.

Before TACHA, and LUCERO, Circuit Judges, and DANIEL ^*, District Judge.

LUCERO, Circuit Judge.

This action arises under 49 U.S.C. § 20701 ¹ and the Federal Employers Liability Act ("FELA"), 45 U.S.C. §§ 51-60. Plaintiffs Jon Bradley Summers and Glyn E. Potts, while "deadheading" ² in the service of their employer, defendant Missouri Pacific Railroad System, allegedly sustained personal injuries which ultimately led to their claims, trial and a jury verdict for defendant. We are asked to consider whether the district court abused its discretion in excluding plaintiffs' expert witnesses and denying their motion for a new scheduling order, and whether the jury was correctly instructed. We exercise jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in part and reverse in part.

I

In June 1993, while traveling from Oklahoma to Texas in the second engine of a four-engine locomotive, plaintiffs noticed diesel exhaust in the cab. Summers complained of a headache, weakness, dizziness, nausea and difficulty breathing, and Potts experienced a headache, difficulty breathing and tightness in the chest. They notified the dispatcher, exited the train, and sought medical care. Although treated and released, the men continued to experience health problems. Defendant referred plaintiffs to the Environmental Health Center in Dallas where they were treated by Dr. Alfred Johnson. Dr. Johnson's diagnosis was toxic exposure to diesel fumes resulting in injury to the central nervous and respiratory systems, causing "chemical sensitivity." Appellants' App. at 455, 522-23. In Dr. Johnson's opinion, this condition rendered plaintiffs totally and permanently disabled with respect to railroading and most other types of employment. Id. at 457-58, 478-79, 482-83.

Thereafter, plaintiffs were referred by defendant to Dr. Thomas Chester, who concluded that their exposure to diesel exhaust had resulted only in moderate carbon monoxide poisoning. Id. at 52-53, 63. In his opinion, the effects of such poisoning dissipate within a few days and, consequently, the incident at issue could not have caused plaintiffs' chronic problems. Id. at 54, 58-59, 61. Dr. Chester determined that Potts was unable to return to work for health-related reasons unrelated to the incident in question. With respect to Summers, Dr. Chester thought it possible that he was suffering from depression, not toxic exposure. Accordingly, he recommended neuropsychological testing, and for that purpose referred Summers to Dr. Susan Franks. Dr. Franks examined Summers and, while refusing to diagnose the cause of his condition, found he "was experiencing a probable dementia that was consistent with a toxic exposure," id. at 714, and was "brain-damaged," id. at 718.

Prior to trial, defendant filed a motion in limine to exclude the testimony of Drs. Johnson and Franks. Shortly after the district court granted that motion, plaintiffs filed a motion for a new scheduling order to procure additional time to obtain alternative medical testimony. Four days later, plaintiffs were examined by Dr. David Schreiber. Plaintiffs then submitted Dr. Schreiber's reports to the district court, as well as railroad retirement board medical reports prepared by Drs. Thomas Trese and Gordon McWatt. In addition, they requested that these three doctors be added to the witness list and that the district court grant them an additional 90 days of discovery. The court denied the motion.

Plaintiffs appeal the district court's rulings as to both motions. In addition, plaintiffs contend that the district court improperly instructed the jury on the issue of causation.

II

For most of this century, district courts, charged with admitting or excluding scientific evidence at trial, were guided by the "general acceptance" test set forth in Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923). The test required excluding such evidence whenever its underlying scientific principles were not "sufficiently established to have gained general acceptance in the particular field in which [they belong]." Id. The Supreme Court has overturned this "dominant standard," holding that the adoption of the Federal Rules of Evidence has superseded Frye. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 585, 587, 113 S.Ct. 2786, 2792, 2793, 125 L.Ed.2d 469 (1993).

A district court's decision to admit or exclude expert testimony pursuant to Daubert is reviewed for abuse of discretion. General Elec. Co. v. Joiner, --- U.S. ----, ----, 118 S.Ct. 512, 519, 139 L.Ed.2d 508 (1997); see also Compton v. Subaru of America, Inc., 82 F.3d 1513, 1517 (10th Cir.1996). We will not disturb the trial court's determination "absent a distinct showing it was based on a clearly erroneous finding of fact or an erroneous conclusion of law or manifests a clear error of judgment." Cartier v. Jackson, 59 F.3d 1046, 1048 (10th Cir.1995).

Under Daubert, when faced with a proffer of expert scientific testimony, a district court "must 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. at 2796. ³ When district courts employ this standard, they ensure the proffered evidence is not only relevant, but reliable. See id. at 589, 113 S.Ct. at 2794. In particular, "scientific knowledge" tests reliability, whereas the second element, helpfulness to the trier of fact, evaluates relevancy. Reliability is verified by assessing "whether the reasoning or methodology underlying the testimony is scientifically valid." Id. at 592-93, 113 S.Ct. at 2796-97. ⁴ 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. at 2796. ⁵

Plaintiffs were diagnosed by Dr. Johnson as having "chemical sensitivity." Appellants' App. at 455, 522-23. Defendant concedes that "chemical sensitivity" is a recognized scientific diagnosis. Id. at 127. Defendant argues, however, that although Dr. Johnson uses the words "chemical sensitivity," he is not in fact making that diagnosis, but is instead applying a scientifically valid label to a scientifically invalid diagnosis of "multiple chemical sensitivity" ("MCS"). If defendant's contentions are true, defendant prevails because MCS is a controversial diagnosis that has been excluded under Daubert as unsupported by sound scientific reasoning or methodology. See Bradley v. Brown, 42 F.3d 434, 438-39 (7th Cir.1994); see generally, Kenneth R. Foster & Peter W. Huber, Judging Science: Scientific Knowledge and the Federal Courts 59 (1997) ("Chemical ecologists have failed to provide criteria that allow a doctor to decide when somebody does not suffer from MCS which is one of the main reasons why MCS is regarded skeptically by mainstream medicine.") Plaintiffs however, steadfastly maintain that the doctor's actual diagnosis is the universally recognized "chemical sensitivity."

The trial court ultimately concluded that Dr. Johnson's diagnosis was in fact MCS. Thus, the court ruled his testimony inadmissible under Fed.R.Evid. 702 and Daubert. The district court's rationale was that Dr. Johnson performed none of the tests--"a scratch test, patch test, or a RAST test for IG antibodies"--used to confirm whether or not a patient is suffering from "chemical sensitivity." Appellants' App. at 131. Instead, Dr. Johnson relied on the patient's history, a physical examination, and the results of "Spect" and "Booth" tests. The district court found that these latter tests "have been the subject of much criticism by the scientific community as not having met acceptable scientific levels of methodology and criteria, and are not designed to test for the recognized medical condition of chemical sensitivity." ⁶ Id. Plaintiffs do not dispute this finding, and we therefore may not disturb the court's conclusion that "the record does not demonstrate that Dr. Johnson has made a valid diagnosis of the generally accepted condition of chemical sensitivity based on objective testing." Id.

Of course, district courts must be careful not to "don the amateur scientist's cap in ruling on scientific validity." Bradley, 42 F.3d at 438 (citations and quotations omitted). But, trial judges remain free to determine as a threshold question whether an expert is in fact predicating her conclusions on the scientific theory, procedure, or principle on which she purports to rely. Were this not so, an expert whose opinion rests on faulty scientific underpinnings might be permitted to testify simply by placing an acceptable label on otherwise inadmissible "scientific knowledge."

We also affirm the district court's exclusion of Dr. Franks' testimony. The court found that Dr. Franks, as a psychologist, "is not an expert in the field of medicine or toxicology," see Appellants' App. at 132, and further found that her opinion was based in part on testing that was still "in the research stage and [had] not been validated," id. at 133. Plaintiffs provide us with no evidence indicating that the district court's resolution of this issue was in error.

III

The district court denied plaintiffs' motion for a new scheduling order citing the untimeliness of their request and prejudice to defendant. Federal Rule of Civil Procedure 16(b) provides that schedules "shall not be modified except upon a showing of good cause and by leave of the district judge...." "Nevertheless, while the pretrial order defines a...