Saturday, October 11, 2003

Divided 10th Circuit Panel Affirms Admissibility of Toxicologist's Causation Testimony

Over Judge Hartz's vigorous dissent, a Tenth Circuit panel has published an opinion affirming a trial court ruling that admitted causation testimony from a well-known toxicologist. See Goebel v. Denver & Rio Grande Western R.R., No. 02-1391 (10th Cir. Oct. 9, 2003) (Kelly, Henry, & Hartz, JJ.).

The decision is interesting on a number of levels. First, the toxicologist was Dr. Daniel T. Teitelbaum, a frequent expert witness who may fairly be called a veteran in the Daubert wars. It was testimony from Dr. Teitelbaum that was at issue, e.g., in General Electric Co. v. Joiner, 522 U.S. 136 (1997).

Second, the case involves an unusual fact pattern. We start with a train breaking down in the Moffatt Tunnel, which crosses the continental divide in Colorado at an altitude over 9000 feet above sea level. A locomotive engineer went out to inspect the train and was exposed to concentrated diesel fumes in the tunnel. Almost immediately, he developed a headache and experienced nausea and tightness in his chest. He received prompt treatment following the incident, but was later diagnosed with cognitive deficits and other symptoms, for which he sought compensation from the railroad in a suit under FELA. Dr. Teitelbaum opined that the engineer's condition resulted from the combination of altitude and respiratory irritants experienced by the engineer in the tunnel.

Third, the case involves an unusual procedural history. A jury awarded $755,000 to the engineer, but that verdict was vacated in an earlier appeal, and the case remanded for a new trial, because the record reflected no Daubert analysis whatsoever by the trial court. See Goebel v. Denver & Rio Grande Western R.R., 215 F.3d 1083 (10th Cir. 2000). On remand, the district court conducted a Daubert analysis and ruled Dr. Teitelbaum's testimony admissible. To expedite proceedings, the parties stipulated to the prior verdict, with the railroad reserving the right to appeal from the new Daubert ruling. This represents an interesting solution to the diseconomies of retrial that might otherwise have confronted the litigants under such decisions as Dodge v. Cotter Corp., 328 F.3d 1212 (10th Cir. 2003), and Mukhtar v. California State University, 299 F.3d 1053 (9th Cir. 2002), amended on denial of rehearing en banc, 319 F.3d 1073 (9th Cir. 2003).

Fourth, the case involves the recurring battleground issues of differential diagnosis and generic versus specific causation.

Fifth and finally, and perhaps most intriguingly, the majority and dissent part company partly over which party bears what burdens in a Daubert challenge. Judge Kelly's majority opinion says: "In cases such as this one, where one party alleges that an expert's conclusions do not follow from a given data set, the responsibility ultimately falls on that challenging party to inform (via the record) those of us who are not experts on the subject with an understanding of precisely how and why the expert's conclusions fail to follow from the data set. Any failure by the challenging party to satisfy this responsibility is at that party's peril."

But Judge Hartz's dissent says: "The majority opinion fails to take the correct approach. It makes good arguments that the medical literature cited by Defendant does not prove Dr. Teitelbaum's opinion to be wrong. The test is not, however, whether Defendant can prove Dr. Teitelbaum's opinion is wrong. The test is whether there is adequate scientific support for Dr. Teitelbaum's opinion."

The law recognizes burdens of production and persuasion, but here the bone of contention does not seem to involve either of those relatively well-defined concepts. The issue here seems to relate more to analytical burdens in the realm of advocacy -- i.e., whether it is the challenging party who should first "point" to an assertedly impermissible gap in the expert's inferences, or the proponent who should first bear some prima facie argumentative burden of demonstrating the nonexistence of any such gaps. That topic has not been much explored in the decisional law. Of course, even in litigation, there aren't hard-and-fast rules for absolutely everything. For some things, there are just rules of thumb -- e.g., if you're objecting to the admissibility of testimony, try to offer a clear and convincing explanation of your objection.
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.