Sunday, August 17, 2003

The Search for Truth at ALF (part 2)

Here we are in August, and it's a slow news weekend on the expert testimony front, so we have time to renew the quest, undertaken on a bet, to locate some proposition on the Atlantic Legal Foundation's web site with which it seems reasonable to agree.

Having previously failed to locate anything unconditionally agreeable on the ALF's home page, your investigator decided to check out the "What's New" link. This takes the visitor to a spot where ALF recounts its recent adventures. The first entry there blandly announces a testimonial dinner honoring the Chairman and CEO of American International Group (which offers "insurance, financial services and the freedom to dare"). One is willing to take it on faith that this gentleman "exemplifies the ideals and principles of public service and private enterprise," just as ALF claims, and so technically the search might have ended here. But the spirit of the project, really, had been to find some slightly more colorful and potentially controversial assertion to endorse.

For those purposes, ALF's second "What's New" entry, entitled "Georgia on Our Mind," initially seemed more promising. At least everyone could agree, maybe, that here we have one cool tune. (You can hear a nice enough Van Morrison rendition at the Official Hoagy Carmichael Site, but where are Louis Armstrong and Ray Charles?)

As it turns out, unfortunately, ALF has no opinions to impart on Hoagy Carmichael, but wants instead to rehearse the arguments from an amicus brief it has filed before the Georgia Supreme Court, which has granted certiorari to review the Court of Appeals decision in Orkin Exterminating Co. v. Carder, 258 Ga. App. 796, 575 S.E.2d 664 (2002). You can well imagine your investigator's surprise on discovering that in this toxic tort case, the ALF is actually weighing in on behalf of the plaintiff, whose expert ALF regards as an exemplar of sound medico-scientific inquiry.

Just kidding. ALF has sided with the people spraying the pesticides, and believes the plaintiff's expert to constitute a threat to the Republic. Or so ALF's rhetoric would suggest. "The battle lines," says ALF, "are drawn."

It augurs well for the continued prosperity of this weblog that issues of expert evidence can still stir such emotion. Some might see the order granting certiorari in Orkin v. Carder in less dramatic terms. It solicited briefing on whether Georgia should adopt Daubert and Kumho Tire, or adhere instead to the standard for expert evidence established in Harper v. State, 249 Ga. 519, 292 S.E.2d 389 (1982), which calls for the trial court to admit expert testimony if the procedure or technique on which the expert relies has "reached a scientific stage of verifiable certainty" or "rests upon the laws of nature." It cannot be gainsaid that decisions about evidentiary standards are important, but still, it might be doubted, even by aficionados of expert evidence law, whether such a question supplies legitimate occasion for metaphors involving heroic military adventure. To be fair, perhaps ALF cannot be faulted for taking these issues with the utmost seriousness. At all events, your investigator is no scholar in Georgia's evidentiary jurisprudence, but will confess that the Harper test does sound a little vague, and if ALF were merely concerned to argue in favor of clearer standards -- standards that might yield fairer or more predictable results -- then it is possible that ALF would have a point.

But ALF cannot bring itself to stop at extolling the merits of Daubert. It feels compelled to tell a parable, and apparently it wants the parable to be a horror story, so ALF delves headlong into the putative facts. The word "putative" is chosen advisedly, because this is the juncture at which the prospects of agreement with ALF quickly deteriorate, for failure of ALF's factual recounting to match up very successfully with the Court of Appeals version.

Here, for instance, is what ALF says about the events leading up to suit (emphases mine): "Edward Carder was employed by a company that retained Orkin to perform exterminating services at its offices. Orkin treated Carder’s work area in July 1988. Carder alleged that months later, on November 4, 1989, he suddenly broke out with a rash as he was jogging. He also allegedly began to experience intense foot and joint pain, in addition to cold sensitivity. Over the course of the next two years, Carder consulted numerous physicians. Two specialists diagnosed Carder’s condition as 'probable' Sweet’s Syndrome. Carder’s condition improved upon taking a steroid treatment. Despite the dermatologists’ diagnoses of 'probable' Sweet’s Syndrome, Carder believed that pesticides were the cause of his ailments. Carder then consulted Dr. Howard Frumkin, an occupational and environmental health physician at the Rollins School of Public Health at Emory University."

Got the picture? Fully sixteen months after his workplace exposure, the worker suddenly developed symptoms, while jogging far from the work site, which symptoms he baselessly attributed to pesticides, but which his physicians diagnosed differently. Unhappy with their diagnosis, and perhaps beset with litigious impulses, he shopped for a different doctor.

A horror story for the ages, no doubt, were it true. But according to the Court of Appeals opinion, to which some credence must be afforded, the plaintiff's exposures occurred not in July 1988, as ALF says, but in July 1989 -- perhaps four months before the onset of his symptoms, not sixteen. An ALF typo? Maybe so, but one that certainly cuts ALF's way. What, meanwhile, of the "rash" plaintiff developed? Skin lesions, it transpires. And that new physician he visited, after the first two doctors came up with a tentative diagnosis of Sweet's Syndrome? The first two doctors actually referred the plaintiff to the new specialist at Emory, apparently because of his background in epidemiology.

ALF continues its account (emphases again mine): "Dr. Frumkin created an experiment to attempt to connect pesticides with Carder’s symptoms. Dr. Frumkin did not use standard tests generally used when pesticide poisoning is suspected because, as he testified, Carder 'had none of the symptoms of typical poisoning.' Dr. Frumkin developed his own, new and experimental test, which consisted of a series of six uncontrolled exposures of Carder to either a mixture of pesticides or a placebo. Dr. Frumkin admitted his test lacked many components that have been recognized by scientists and courts as indicia of scientific validity and reliability."

Let's leave to one side ALF's seemingly baseless imputation of agenda-driven motivations to the plaintiffs' expert ("attempt to connect the pesticides"), and focus instead on the merits. Once again, it's clear enough what happened, no? The good doctor ignored the usual tests for "poisoning," and resorted to inventing a novel procedure of his own to reach the desired result, despite his method's lack of general acceptance amongst medical practitioners, and despite its lack of grounding in traditional medico-scientific principles.

Not really. Read the Court of Appeals decision, and you discover that the method applied was "challenge testing" -- an established diagnostic technique that no one, until now, has ever credited the good Dr. Frumkin with inventing. Orkin's challenge, on appeal, was not to the methodological legitimacy of challenge testing itself, but to the details of the physician's execution.

Might there be room for debate, about the causal link between these pesticides and this plaintiff's health condition, and even about the soundness of the diagnostic methods that his physician employed? No doubt. But if ALF were really confident in its position, maybe it would take more trouble to present the underlying facts in a more objective light.

So the quest, it seems, must continue. Would it be cheating if your investigator looked for agreeable propositions at -- the web site managed by the Association of Libertarian Feminists?
Fed. R. Evid. 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, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.