REICHERT v. PHIPPS
2004 WY 7
84 P.3d 353
Case Number: 02-159
Decided: 02/11/2004
OCTOBER TERM, A.D. 2003
DELORES J. REICHERT,
Petitioner,
v.
JAMES A. PHIPPS and
GARY L. LANPHIER,
Respondents.
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.
VOIGT, Justice, delivered the opinion of the Court; LEHMAN, Justice, filed a dissenting opinion.
VOIGT, Justice.
[1] The petitioner, in a civil negligence action, has asked this Court to review the trial courts 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 petitioners 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 petitioners 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 courts 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 physicians specific area of expertise. Bunting, 984 P.2d at 471.
The primary goal of Dauberts 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 Dauberts 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 techniques 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 Dauberts two-part testwhether the expert testimony fits the particular facts of the casewe 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 experts 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) and Margaret A. Berger, Procedural Paradigms for Applying the Daubert Test, 78 Minn. L. Rev. 1345, 1351 (1994)).
[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 proponents 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 courts exclusion of evidence as unreliable is potentially inconsistent with the jurys duty to evaluate witness credibility and to assign evidentiary weight. To avoid usurping the jurys 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.
LEHMAN, Justice, dissenting.
[22] I agree with the majoritys recitation of relevant law but disagree with the reasoning used in reaching its ultimate determination given the facts and circumstances that exist. Accordingly, I respectfully dissent.
[23] I am in accord that 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 when it granted respondents motion in limine to exclude expert testimony. I also agree that when faced with such a determination, a trial court must act as a gatekeeper to determine the reliability of the proffered expert testimony by applying the flexible criteria set forth in Bunting v. Jamieson, 984 P.2d 467, 471-73 (Wyo. 1999) (formally adopting in Wyoming the four non-exclusive tests to the facts at hand enunciated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-94, 113 S.Ct. 2786, 2796-97, 125 L.Ed.2d 469 (1993)).
[24] Perhaps most importantly, I embrace the proposition that a trial court must be given broad latitude in determining whether expert testimony is based upon reliable scientific methodology so as to make those conclusions offered by an expert admissible. Thus, as noted by the majority, quoting the United States Court of Appeals for the Tenth Circuit in Hollander v. Sandoz Pharmaceuticals Corp., 289 F.3d 1193, 1206-07 (10th Cir.), cert. denied 537 U.S. 1088, 123 S.Ct. 697, 154 L.Ed.2d 632 (2002), our scope in reviewing such issues is very narrowlimiting our reversal of the trial courts decision solely if we conclude that it abused its discretion in excluding expert testimony.
[25] Here, as admitted by the majority, the trial court was presented with voluminous materials to assist in its ruling on the motion and ultimately made a detailed and painstaking application of the Daubert principles before rendering its decision. Upon my review of the analysis expressed in its four-page decision letter, I simply cannot conclude that the trial court clearly abused its discretion in rendering its decision. To the contrary, the trial court, based on the specific materials provided, reasonably determined that the literature was insufficient to scientifically establish that a cause-effect connection exists between trauma and fibromyalgia (FM) and that, despite intensive research, major gaps in our understanding of the pathogenesis and etiology of FM remain.
[26] Furthermore, while I am not diametrically opposed to the utilization of differential diagnosis methodology by medical experts in rendering opinions on legal causation, I believe that such use must be carefully monitored. As disclosed by the majority, a fundamental assumption underlying this method is that the final, suspected cause remaining after this process of elimination is applied must actually be capable of causing the injury derived from scientifically valid methodology. In other words, the expert must be able to rule in the suspected cause, as well as rule out other possible causes based on an established scientific foundation. Upon my independent review, I conclude that the trial court did not unreasonably determine that such evidence was not presented in this case.
[27] Therefore, I would affirm the ruling of the trial court granting the motion in limine excluding the proffered expert testimony on the basis of its unproven scientific reliability.
FOOTNOTES
1The purpose of a motion in limine is to obtain the courts pretrial ruling on the admissibility of evidence. W.R.C.P. 56(d) goes beyond that purpose to include the courts pretrial ruling on what facts are, and are not, in controversy.
2The following published FM cases were cited to the trial court: Walker v. American Home Shield Long Term Disability Plan, 180 F.3d 1065 (9th Cir. 1999) (admissibility of testimony as to causal link between trauma and FM not an issue; issue whether plaintiff disabled as a result of FM); Black, 171 F.3d 308 (abuse of discretion to allow board certified physician to testify that a slip-and-fall caused FM); Licciardi v. TIG Ins. Group, 140 F.3d 357 (1st Cir. 1998) (admissibility of testimony as to causal link between trauma and FM not an issue; issue is expert testimony beyond designation); Lang v. Long-Term Disability Plan of Sponsor Applied Remote Technology, Inc., 125 F.3d 794 (9th Cir. 1997) (admissibility of testimony as to causal link between trauma and FM not an issue; issue whether plaintiffs depression was FM-related); Minner v. American Mortg. & Guar. Co., 791 A.2d 826 (Del.Super. 2000) (temporal relationship insufficient to establish causal link between a buildings condition and FM); Hughes v. Scottsdale Ins. Co., 793 So.2d 537 (La.App. 2001) (admissibility of testimony as to causal link between trauma and FM not an issue; issue whether evidence sufficient to prove accident caused FM); Young v. Hickory Business Furniture, 353 N.C. 227, 538 S.E.2d 912 (2000) (maxim post hoc, ergo propter hocafter this, therefore because of thisinsufficient to establish causal link between trauma and FM). The following unpublished cases were also cited to the trial court: Byrum v. Superior Court, Los Angeles County, 2002 WL 243565 (Cal.App. 2002) (testimony as to causal link between trauma and FM not subject to states non-Daubert reliability standard because not based on new or novel scientific theory or device); Hultberg v. Wal-Mart Stores, Inc., 1999 WL 244030 (E.D.La. 1999) (testimony that slip-and-fall caused FM unreliable); Shepler v. Love, 2001 WL 1104811 (Ohio App. 2001) (admissibility of testimony as to causal link between trauma and FM not an issue); Jones v. Conrad, 2001 WL 1001083 (Ohio App. 2001) (treating physicians testimony that trauma caused FM inadmissible because not scientifically reliable). In her appellate briefing, the petitioner has also cited Alder v. Bayer Corp., AGFA Div., 2002 UT 115, 61 P.3d 1068 (Utah 2002) (expert testimony as to FM causation not rendered inadmissible by conflict among experts, so long as the testifying experts methodology, such as differential diagnosis, is a standard practice).
3In addition to the petitioners medical records and the depositions of Drs. Ockey and Monger, the following items were provided to the trial court, for some of which full source information is not reflected in the record: Dan Buskila, M.D. and Lily Neumann, PhD., Musculoskeletal Injury as a Trigger for Fibromyalgia/PostTraumatic Fibromyalgia 104 (Israel 2000); Wolfe, supra, 23 Journal of Rheumatology 534; Fibromyalgia Syndrome, Arthritis Foundation (undated pamphlet); Dan Buskila, Lily Neumann, Genady Vaisberg, Daphna Alkalay, Frederick Wolfe, Increased Rates of Fibromyalgia Following Cervical Spine Injury, 40 Arthritis & Rheumatism 446 (1997); Leslie A. Aaron, Laurence A. Bradley, Graciela S. Alarcn, Mireya Triana-Alexander, Ronald W. Alexander, Michelle Y. Martin, Kristin R. Alberts, Perceived Physical and Emotional Trauma as Precipitating Events in Fibromyalgia, 40 Arthritis & Rheumatism 453 (1997); Kevin P. White, Simon Carette, Manfred Harth, Robert W. Teasell, Trauma and Fibromyalgia: Is There an Association and What Does It Mean, 29 Seminars in Arthritis & Rheumatism 200 (2000); Don L. Goldenberg, M.D., Clinical Manifestations and Diagnosis of Fibromyalgia, 9 Up to Date (2000); Don L. Goldenberg, M.D., Differential Diagnosis of Fibromyalgia, 9 Up to Date (2000); Don L. Goldenberg, M.D., Pathogenesis and Treatment of Fibromyalgia, 9 Up to Date (2001); Don L. Goldenberg, Patient Information: Fibromyalgia, 9 Up to Date (2000); Robert M. Bennett, The Fibromyalgia Syndrome, Textbook of Rheumatology 511 (5th ed.); Criteria for the Classification of Fibromyalgia, Primer on Rheumatic Diseases 457, adapted from F. Wolfe, HA Smythe, MB Yunus, et al., American College of Rheumatology (1990); Bruce Freundlich and Lawrence Leventhal, The Fibromyalgia Syndrome, Primer on Rheumatic Diseases 124, Arthritis Foundation; Muhammad B. Yunus, Robert M. Bennett, Thomas J. Romano, I. Jon Russell, et al., Fibromyalgia Consensus Report: Additional Comments, 3 Journal of Clinical Rheumatology 324 (1997).
4Etiology refers to the cause and origin of a disease. Pathogenesis refers to the origination and development of a disease. Websters Third New International Dictionary of the English Language Unabridged 782, 1655 (1993).
5This language, which was quoted in the petitioners memorandum of law in the trial court, comes from a copy of the Arthritis Foundation brochure attached as an exhibit to Dr. Mongers deposition. Dr. Mongers deposition, including the brochure, is attached to the petitioners memorandum of law as Exhibit 1. Interestingly enough, attached to the memorandum of law as Exhibit 5 is a similar brochure from the Arthritis Foundation, with the same title, which contains the following version of the same section on FM causation:
No one knows what causes fibromyalgia. Researchers speculate that many different factors, alone or in combination, may cause fibromyalgia. For example, factors such as an infectious illness, physical trauma, emotional trauma or hormonal changes, may contribute to the generalized pain, fatigue and sleep disturbances that characterize the condition.
Studies have suggested that people with fibromyalgia have abnormal levels of several of the different chemicals that help transmit and amplify pain signals to and from the brain. Whether these abnormalities are a cause or a result of fibromyalgia is unknown.
Clearly, this is a far weaker statement that FM may be linked to physical trauma. Neither version of the brochure contained in the record bears a publication date, so there is no evidence as to which may reflect the more recent position of the Arthritis Foundation.
6In this study, patients with neck injuries were compared to patients with lower extremity injuries. The second quoted sentence refers to one aspect of the study wherein it was determined that the patients suffering from FM did not file insurance claims at a higher rate than did those patients not suffering from FM, nor were they unemployed at a higher rate.
7Even a novel conclusion is not necessarily inadmissible. Heller, 167 F.3d at 156.
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Cite | Name | Level | |
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1999 US 2175, 526 S.Ct. 1167, 526 U.S. 137, | Kumho Tire Co., Ltd. v. Carmichael | Cited | |
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1997 WY 4, 930 P.2d 1248, | Hilterbrand v. State | Cited | |
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1998 WY 127, 966 P.2d 431, | Clark v. Gale | Cited | |
2001 WY 25, 18 P.3d 1164, | CHAPMAN v. STATE | Discussed |