Academic journal article Texas Law Review

A Plea for Return to Evidence Rule 702

Academic journal article Texas Law Review

A Plea for Return to Evidence Rule 702

Article excerpt

The en banc decision of the Fifth Circuit in Moore v. Ashland Chemical, Inc.,' is such an abuse of Rule 702 and a distortion of the Supreme Court's opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc.,2 that the misdirection of the law on the admissibility of expert opinion is highlighted and must be corrected. That correction should begin, not by revision of the Rule, but by return to it.

The Fifth Circuit in Moore, applying Daubert, holds that a preeminent physician's opinion of causation of disease may be denied admission into evidence if not supported by published studies on the connection between the particular disease and the particular cause, even when there is no novel scientific issue and when none of the indicia of unreliability exist.3 Rule 702 has been generally understood as a useful test for the admission of expert opinion, although it has been misapplied sometimes to admit objectionable evidence, just as Moore misapplies it to deny admission of clearly appropriate evidence. The difficulty with understanding the Rule has arisen from confusion over Daubert's language concerning both the trial court's role as gatekeeper to exclude evidence not "reliable" and when to employ the Court's criteria for testing scientific knowledge. In recent years, courts have encountered difficult causation problems, particularly in toxic tort cases.4 It should be emphasized that Moore is not such a case.5 But in those cases in which experts do debate technical questions beyond the understanding of the judge, the judge should obtain her own expert assistance. Justice Breyer has pointed us to the procedure by which that assistance can be obtained.6 What we must not do is impose impossible burdens on parties without good reason or deprive the factfinder of reliable assistance from witnesses knowledgeable about the issues of the case. Nor should we substitute the judge for either the expert or the jury. I. Moore v. Ashland Chemical, Inc.

Bob Moore, a thirty-seven-year-old truck driver, was in apparent good health, after recovering from an episode of pneumonia, when he delivered drums of chemicals to Ashland Chemical in April of 1990.7 When the doors of the trailer were opened, he discovered that two drums had leaked.8 He was required to clean up the spill inside the trailer for over forty-five minutes without ventilation or respiratory protection.9 By the time he returned the truck to the company terminal, he was ill and had difficulty breathing. He obtained relief from oxygen and inhalants administered by the company doctor, but he continues to suffer from shortness of breath and severe reaction to airborne chemicals." Moore says that his debilitating symptoms had never existed before and began with the incident on the Ashland property.'2

In the summer of 1990, Moore consulted Dr. Daniel Jenkins of the Baylor College of Medicine.'3 Dr. Jenkins had taught at Baylor and treated many patients with respiratory ailments over a period of forty-four years, having served as chief of the pulmonary disease section for twentyseven years and then chief of the environmental medicine section for seventeen years.'4 Dr. Jenkins examined Moore on three occasions, took his history, and administered a battery of tests.l5 The history included details of the chemicals vaporized in the truck and inhaled by Moore.'6 The chemicals were toluene, propylene glycol methyl ether, and naphtha. Dow Corning, manufacturer of the chemicals, published a material safety data sheet (MSDS) stating these effects of exposure: "Inhalation: Short vapor exposure may cause drowsiness and irritate nose and throat. Vapors may injure blood, liver, lungs, kidneys, and nervous system. Degree of effects depends on concentration and length of exposure."" Dr. Jenkins concluded that Moore suffered from reactive airways disease or dysfunction syndrome (RADS), a narrowing of the airways of the lungs with hypersensitivity to chemicals.'8 After the result of a bronchial challenge test, Dr. …

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