AAEM News: Minner v Am Mortgage [SBS, MCS, Daubert, Ziem]

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From: Lawbook Worm <lawbookworm@...>

Minner v Am Mortgage [sBS, " MCS " , Daubert, Ziem]

>Dr. Ziem diagnosed all three patients with

Multiple Chemical Sensitivity ( " MCS " ), Sick

Building Syndrome ( " SBS " ), Chronic Fatigue

Syndrome ( " CFS " ), Fibromyalgia ( " FM " ), Reactive

Airways Dysfunction Syndrome ( " RADS " ), and Toxic Encephalopathy ( " TE " ).

In fact, it is not apparant on the face of the

decision that Ziem actually used the term " MCS " .

>It appears that the best approach to take in

this instance is to evaluate the Plaintiffs'

experts first to determine [**49] whether their

opinions are based on " good grounds " on what is

known. The expert testimony sought to be excluded

by Defendants is the testimony of several medical

professionals who have either diagnosed the

Plaintiffs with certain illnesses or have opined

that certain unspecified agents in the Discover

Card building have caused the Plaintiffs'

illnesses. Defendants contend that the expert

doctors employed by the Plaintiffs who have

diagnosed the Plaintiffs with Multiple Chemical

Sensitivity ( " MCS " ) and Sick Building Syndrome

( " SBS " ) should not be allowed to be heard by the

jury because these diagnoses are not validly

diagnosable conditions. Defendants further

contend that any diagnosis of Fibromyalgia ( " FM " )

and Chronic Fatigue Syndrome ( " CFS " ) cannot be

related to the conditions at the Discover Card

building because there are no known causes for

the illnesses. Finally, as to the remainder of

the multitude of alleged illnesses of the

Plaintiffs, Defendants claim that there is no

specified causal agent that links any of the

Plaintiffs' illnesses to the conditions at their

workplace. n27<?xml:namespace prefix = o ns =

" urn:schemas-microsoft-com:office:office " />

==========

BRENDA MINNER, HILLARD MUTTART, LINDA BRENNAN and

JAMES BRENNAN, Plaintiffs, v. AMERICAN MORTGAGE &

GUARANTY COMPANY, a Delaware Corporation, and

EMORY HILL MANAGEMENT COMPANY, a Delaware Corporation, Defendants.

C.A. No. 96C-09-263-WTQ Consolidated

SUPERIOR COURT OF DELAWARE, NEW CASTLE

791 A.2d 826; 2000 Del. Super. LEXIS 99

April 17, 2000, Decided

DISPOSITION: [**1]

On Defendants' Motions in Limine to Exclude the

Testimony of Doctors Ziem, Howarth, Messinger,

Seltzer, Kaye, Ivins, and Jurinski, DENIED IN

PART and GRANTED IN PART; Defendants' Motion in

Limine to Exclude the Testimony of Dr. Michell,

GRANTED; On Defendants' Motions in Limine to

Exclude the Testimony of Doctors Weisberg and

Imber, DENIED; and On Plaintiffs' Motions in

Limine to Exclude the Testimony of Doctors Antell and Mechanick, DENIED.

JUDGES: QUILLEN, Judge.

OPINIONBY: QUILLEN

OPINION: [*833]

OPINION AND ORDER

QUILLEN, Judge

April 17, 2000

This is the Court's Opinion and Order on

Plaintiffs' and Defendants' respective Motions in

Limine to exclude certain expert witnesses. There

are twelve Motions. For the reasons stated

herein, the two Plaintiffs' Motions are DENIED,

one of the Defendants' Motions is GRANTED, seven

Defendants' Motions are [**2] DENIED in part and

GRANTED in part, and two Defendants' Motions are

DENIED. An additional Motion by Defendants to

strike an affidavit is considered moot.

FACTUAL OVERVIEW

This case is a so-called " sick building " case.

Plaintiffs Hillard Muttart, Brennan and

Minner have filed suit claiming that,

while they were working for the Greenwood Trust

Company at the Discover Card building, located at

12 Reads Way, New Castle, Delaware, they suffered

various illnesses as a result of the conditions

in the building. n1 Greenwood Trust leases the

building from the owners, Defendant American

Mortgage & Guaranty Company ( " AMGC " ). The other

remaining Defendant, Emory Hill Management

Corporation, manages the building for AMGC.

n1 Greenwood Trust, originally a Defendant in

this case, has been dismissed from this case

because the Plaintiffs are prohibited from suing

it directly under the workers' compensation statute.

This case deals with complex medical and

psychological conditions the Plaintiffs claim

they [**3] have suffered as a result of the

conditions in this building. As noted, the

Plaintiffs and Defendants have filed twelve

Motions in Limine, attempting to exclude the

others' expert witnesses. This is the Court's Opinion on the Motions before it.

EXPERT TESTIMONY

Expert evidence can be both powerful and

misleading because of the difficulty in

evaluating it. Daubert v. Merrell Dow

Pharmaceuticals Inc., 509 U.S. 579, 595, 125 L.

Ed. 2d 469, 113 S. Ct. 2786 (1993) (quoting Jack

B. Weinstein, Rule 702 of the Federal Rules of

Evidence is Sound; It Should Not Be Amended, 138

F.R.D. 631, 632 (1991)). The identification of

which expert testimony should be allowed is a

hazardous and ill-defined enterprise. D.

Easton, " Yer Outta Here! " A Framework for

Analyzing the Potential Exclusion of Expert

Testimony Under the Federal Rules of Evidence, 32

U. Rich. L. Rev. 1, 4 (1998). But, " no one will

deny that the law should in some way effectively

use expert knowledge wherever it will aid in

settling disputes. The only question is as to how

it can do so best. " Learned Hand, Historical and

Practical Considerations Regarding Expert

Testimony, 15 Harv. L. Rev. 40, 40 (1901)

[**4] (hereinafter " Hand at " ). Although the

United States Supreme Court n2 has, in

the [*834] recent cases of Daubert and Kumho

Tire Co., Ltd. v. Carmichael, n3 for the moment,

pronounced the way that Trial Judges should

handle questions of expert testimony, a review of

the historical precedent is still useful to

provide background on how Courts have struggled

with the need for expert help. Certainly, our

present method of using experts as witnesses was

not the earliest or only means used. Hand at 42.

And, all one must do is look to the yellowing

pages of the early volumes of the Harvard Law

Review to determine that the subject was of great

debate at the turn of the Twentieth Century. See

generally, L. , Expert Testimony,

-- Prevalent Complaints and Proposed Remedies, 11 Harv. L. Rev. 169 (1897).

n2 The Delaware Supreme Court has stated that

because Delaware Rule of Evidence 702 on

testimony by experts is identical to its Federal

counterpart, the Delaware Courts should look at

the U.S. Supreme Court's most authoritative

interpretation of the Rule to guide its

interpretation. See M. G. Bancorporation v.

LeBeau, Del. Supr., 737 A.2d 513, 521 (1999).

[**5]

n3 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999).

Courts have particularly struggled with how

expert testimony should be used in the context of

a jury trial. Learned Hand writes that in early

times, before trial by jury was substantially

developed, there appears to have been two modes

for the use of expert testimony. Hand at 40. The

first method, as described by Hand, was to select

jurymen who possessed experiences which were

especially fitted to the class of facts which

were before them. Id. The second method was for

the Court to call before it the aid of skilled

persons whose opinions it might adopt or not as

it pleased. Id. See also, 7 H. Wigmore,

Evidence § 1917 (Chadbourn rev. 1978)

(hereinafter " Wigmore, Evidence § " ). The

first method described above is the so-called " special jury. "

Special juries were basically juries of people

who were particularly qualified to decide a case.

These special juries were exceedingly common in

London throughout the Fourteenth Century in trade

disputes. Hand at 41. n4 To assemble a special

jury, the mayor [**6] would be called upon to

summon a jury of men of the particular trade in

question and those tradesmen decided whether the

Defendant had offended the trade regulations.

Hand at 41. This special jury process continued

into the Eighteenth Century. In his commentaries,

Blackstone describes the special jury process:

Special juries were originally introduced in

trials at bar, when the caufes were of too great

nicety for the difcuffion of ordinary

freeholders; or where the fheriff was fufpected

of partiality, though not upon fuch apparent

caufe, as to warrant an exception to him ...

either party is intitled upon motion to have a

fpecial jury ftruck upon the trial of any iffue,

as well as the affifes as at bar; he paying the

extraordinarily expenfe, unless the judge will

certify ... that the caufe required fuch fpecial jury. n5

3 Blackstone, Commentaries, * 357-58.

n4 Hand credits his research on this point to

Professor Thayer, who, among other things,

wrote extensively on the history of the trial and

jury system. See Thayer, The Older Modes of

Trial, 5 Harv. L. Rev. 45 (1891), The Jury and

its Development, 5 Harv. L. Rev. 249 (1892), The

Jury and its Development, 5 Harv. L. Rev. 357 (1892).

[**7]

n5 Hand, discussing Blackstone's view of the jury

process, states: " Blackstone speaks of the

special jury as still an existing institution,

though it had then for the most part been limited

to cases where a 'struck' jury is demanded owing

to a supposed bias in the sheriff; a form of

impanelling a jury which went under the same name

as the jury of experts, and which exists today. " Hand at 42.

In Blackstone's time, the mid-Eighteenth Century,

when a special jury was called, the Prothonotary

or other proper officer of the Court appeared

with the freeholder's book and, in the presence

of the attorneys, indifferently took the names of

48 of the freeholders. Id. at 358.

Each [*835] of the attorneys were able to

strike 12 of the jurors, and the remaining 24

constituted the panel. Id. at 358.

The practice of special juries is part of

Delaware law. Delaware's special jury practice is

" noted in several of Delaware's oldest reported

cases decided shortly after the American

Revolution. " Haas v. United Technologies Corp.,

Del. Supr., 450 A.2d 1173, 1182 (1982)

[**8] (citing Burton's Lessee v. Prettyman, Del.

Supr., 1 Del. Cas. 11 (1793); Newbold's Lessee v.

Stockley, Del. Supr., 1 Del. Cas. 10 (1783);

Polk's Lessee v. Ross, Del. Com. Pl., 1 Del. Cas.

40 (1794)). The practice of striking special

juries was codified in Delaware in 1810 by

statute, but it did no more than codify into

statutory law a practice long followed in

Delaware Courts as a part of the legal heritage

from England. See Nance v. Rees, Del. Supr., 52

Del. 533, 2 Story 533, 161 A.2d 795, 798 (1960).

That statute exists still today in a modified

form; a special jury can only be used for complex

civil cases. See 10 Del. C. § 4506; Super. Ct.

Civ. R. 40(. n6 Since 1987, the parties no

longer have a right to a special jury upon

application; the Court, as a matter of

discretion, may order a special jury on the

application of a party. Compare 10 Del. C.

§ 4506 with the former 10 Del. C. § 4511(a) as

it appeared in the 1953 Delaware Code Annotated;

see L. Finger & Louis J. Finger, Delaware Trial Handbook, § 6:14 (1994).

n6 Delaware has retained all of the fundamental

features of the jury system as they existed at

common law. Claudio v. State, Del. Supr., 585 A.2d 1278, 1298 (1991).

[**9]

Delaware Courts have never favored applications

for special juries. See O'Mallie v. Harlan &

Hollingsworth Corp., Del. Super., 29 Del. 312, 6

Boyce 312, 99 A. 428 (1916). n7 But, in the

memory of some of us, it was still quite common

for special juries to be requested in significant

monetary cases. These relatively recent cases

would include expert testimony as well. n8 Given

the expense of a special jury, concern arose over

the economic and democratic implications of a

jury for the wealthy. And the Twentieth Century,

with its industrial, technological, medical, and

scientific developments, made the hope of a jury

of renaissance men and women a somewhat difficult one.

n7 The Delaware statute granting the right to

special juries, however, repeatedly has passed

the constitutional test. See Haas, 450 A.2d at

1182-85; Nance, 161 A.2d at 799. On the other

hand, the distinguishing characteristics of the

special jury procedure are not constitutionally

protected, and may be controlled by legislative

action. In re Asbestos Litigation, Del. Super., 551 A.2d 1296 (1988).

[**10]

n8 This Judge has a vague remembrance of Rodney

M. Layton and his then co-counsel, Judge Jane

s Roth, asking for special juries in

medical malpractice cases in the 1960s and 1970s.

Medical malpractice cases were relatively few,

but issues of qualifications of experts did

arise. See s v. Gelb, Del. Super., 303 A.2d

685 (1973) (the file includes an application for

a special jury). At that time, the Court was well

versed in the procedure for selecting special

juries. See Robelen Piano Co. v. DiFonzo, Del.

Supr., 53 Del. 514, 3 Story 514, 172 A.2d 568 (1961).

The second early method as described by Hand was

to call before the Court the aid of skilled

persons. Hand at 40. Experts were thought of as

being helpers to the Court and the Court

instructed the jury on the points on which such

aid was furnished. 7 Wigmore, Evidence § 1917

(quoting Bradley Thayer, A Selection of

Cases on Evidence 672, note (2d ed. 1990)). This

type of testimony, in its original and long

persisting form, was hardly regarded as evidence

to the jury, but as an aid [**11] sought by the

Court, and thus collateral to and parallel with

the jury itself. 7 Wigmore, Evidence § 1917. But

by the latter part of the 1700s, the expert took

his place as a mere witness to the jury. Id. [*836]

Members of the Bench and Bar have, for some time,

turned their focus to the more sophisticated use

of specialized expert witness testimony in the

type of cases where special juries and advisory

experts may have been formerly used. An expert is

a person specially qualified in a field of

knowledge. A. Stern, Getting the

Evidence, 240 (1936). The term " expert, " from

experti, signifies instructed by

experience. Dole v. , N.H. Supr., 50 N.H.

452 (1870)(discussing the meaning of " expert' in

the 1870s). It appears that throughout the

history of the American legal process, expert

witnesses have played an important role. One

early United States case dealing with expert

testimony was decided in Pennsylvania in 1803.

The entire opinion of the Pennsylvania Supreme Court in that case read:

Mere abstract opinion is not evidence; but a

surveyor, or any other person conversant in the

subject, may state facts, and his opinion on

those facts, [**12] to enable the jury to form

a correct judgment of the matter in dispute. It

is general information in a question of science,

which others unacquainted with the subject must

necessarily want. Thus a physician, who has not

seen the particular patient, may, after hearing

the evidence of others, be called to prove on his

oath, the general effects of a particular

disease, and its probable consequences.

Forbes v. Caruthers, Pa. Supr., 3 Yeates 527

(1803). This early decision followed the British

trend, as set forth in the case of Folkes v.

Chadd, 3 Doug. 157, 158 (1782), where Lord

Mansfield allowed the opinion of men of science

to be given where an expert alone could have knowledge on a subject.

The trend of allowing experts to testify and give

expert opinion testimony continued to develop. In

New Hampshire, as early as 1826, it was

recognized that, on questions of science or

trade, persons of skill were allowed to speak not

only to the facts, but were allowed to give their

opinions in evidence. Town of Rochester v. Town

of Chester, N.H. Super., 3 N.H. 349 (1826). In

fact, the Supreme Court of the United States

recognized in 1858 [**13] that the maxim of

" cuique in sua arte credendum " n9 permits experts

to be examined as to questions of art or science

particular to their trade or profession. Winans

v. N. Y. & Erie R.R. Co., 62 U.S. 88, 101, 16 L.

Ed. 68 (1858) (quoted in Menefee v. U.S., 9th Cir., 236 F. 826, 835 (1916)).

n9 This maxim means anyone is entitled to

credence pertaining to his own craft.

Ballentine's Law Dictionary, 295 (3d ed. 1969).

Courts recognized early on that, to be qualified

as an expert, an " expert must have made the

subject upon which he gives his opinion a matter

of particular study, practice, or observation,

and he must have particular and special knowledge

on the subject. " v. Tucker, N.H. Supr., 41

N.H. 546 (1860); see Copenhaver v. Northern

Pacific Railway Co., Mt. Supr., 42 Mont. 453, 113

P. 467, 470 (1911); Cummings v. Reins Copper Co.,

Mt. Supr., 40 Mont. 599, 107 P. 904, 911 (1910)

(citing a Montana statute). In the early days of

expert testimony, experts [**14] could only be

implicitly received on points of really

scientific character, and the persons offered

must have been really men of science. Dole v.

, N.H. Supr., 50 N.H. 452 (1870).

Greenleaf described the capacity required for one to be considered an expert:

Besides the fundamental or organic powers, mental

and moral, requisite for all testimony, there is

another sort of capacity, always requisite,--the

power of [*837] acquiring fairly accurate

knowledge so far as the element of skill enters

into the acquisition of knowledge. Such skill or

fitness to obtain correct impressions comes from

circumstances which may roughly be summed up in

the term " experience, " --a term of wide scope

embracing the every day use of faculties, the

habit and practice of an occupation, special

study, professional training, etc., which may

have contributed to form this sort of capacity.

1 Simon Greenleaf, Law of Evidence, 522 (16th ed.

1899) (hereinafter " Greenleaf on Evidence " ).

During this time, the rule determining the

subjects upon which an expert could testify, and

the rule prescribing the qualifications of

experts were viewed as matters of law, while the

determination [**15] of whether the expert

possessed those qualifications was a question of

fact, but one for the Trial Judge. , 41 N.H. 546.

The use of expert testimony, however, was met

with skepticism. Justice Pettit of the Indiana

Supreme Court wrote in 1871: " We are not enamored

with expert testimony, however procured or

presented. " Rush v. Megee, Ind. Supr., 36 Ind. 69

(1871). Similarly, the Supreme Court of Michigan

stated just after the Civil War that expert

testimony was not desirable in any case where the

jury could get along without it, and expert

testimony would only be admitted from necessity

or where it would be of some value. People v.

Morrigan, Mich. Supr., 29 Mich. 4 (1874). n10 One

Court said that " evidence of experts is of the

lowest order and of the most unsatisfactory

character. " Whitaker v. , Iowa Supr., 42

Iowa 585 (1876) (disagreed with in modern times

by v. , Iowa Supr., 249 Iowa 638, 87

N.W.2d 767 (1958)). Around the same time frame,

the United States Supreme Court expressed its

skepticism concerning the use of expert testimony:

Experience has shown that opposite opinions of

[**16] persons professing to be experts may be

obtained to any amount; and it often occurs that

not only many days, but even weeks, are consumed

in cross-examinations, to test the skill or

knowledge of such witnesses and the correctness

of their opinions, wasting the time and wearying

the patience of both court and jury, and

perplexing, instead of elucidating, the questions involved in the issue.

Winans, 62 U.S. at 101.

n10 See also 3 Burr W. , Commentaries on

Evidence 2d § 1371 (1926) (citing cases that

spoke unfavorably as to the use of expert testimony).

Scholars also had doubts about the widespread and

unfettered use of expert testimony. Around the

turn of the Twentieth Century, Professor

F. Himes, in the Journal of the lin Institute, Vol. 135, p. 409, stated:

Perhaps the testimony which least deserves credit

with a jury is that of the skilled witness. It is

often surprising to see with what facility and to

what an extent their views can be made [**17] to

correspond with the wishes or the interests of

the parties who call them. They do not, indeed,

willfully misrepresent what they think, but their

judgment becomes so warped by regarding the

subject in one point of view that even when

conscientiously disposed, they are incapable of

expressing a candid opinion... They are selected

on account of their ability to express a

favorable opinion, which, there is great reason

to believe, is in many instances the result alone

of employment and the bias growing out of it.

, supra p. 4 at 170-71 (quoting Professor Himes).

But, even with this skepticism, the Courts became

more willing to accept the [*838] use of expert

testimony in matters. Learned Hand noted the

expert would overtake the jury function only if

the jury believes him. Hand at 52. n11 In fact,

Courts began to accept the notion that " the

common mind, as we know it, is not always equal

to the proper solution of such a problem ... and

the counsel and advice of engineers or persons of

experience in such matters is always valuable and

desirable; and it is quite plain that the

tendency of courts and writers on the law of

evidence is in that direction. " Finn v. Cassidy,

N.Y. App., 165 N.Y. 584, 59 N.E. 311, 313 (1901).

[**18] The Finn Court further noted that the

expert's opinion is not decisive when expert

opinions may be given on both sides of the issue. Id.

n11 Hand, in his 1901 article, argues for the

institution of an advisory tribunal in certain

cases. Hand argues that experts become the

champion of one side and the jury, who has no

experience in the matter must choose between the

experts. See Hand at 52-53. Hand advocates that

there be a board of experts, not called by either

side, who should advise the jury of the general

propositions applicable to the case that lie

within the expert's province. Id. at 56. He

states that the only change from the existing

system would be that the final statement of what

was true would be from the expert advising the jury. Id. at 56.

What first developed was a system where the

expert was not allowed to draw inferences of fact

from the evidence, but rather, the expert simply

had to declare his opinion upon a known or

hypothetical state of fact. Rush v. Megee, Ind.

Supr., 36 Ind. 69, [**19] (1871). This followed

the practice in England, where the expert was not

allowed to give his opinion upon all of the

evidence; but certain facts and particulars were

stated to the expert and the expert was to say

what the facts indicated if they were true. Id.

But expert opinions on various topics became

increasingly standard. See Dougherty v. Milliken,

N.Y. Ct. of App., 163 N.Y. 527, 57 N.E. 757, 759

(1900) (opinion permitted in " cases in which the

conclusions to be drawn from the facts stated, as

well as knowledge of the facts themselves, depend

upon professional or scientific knowledge or

skill not within the range of ordinary training

or intelligence. In such cases not only the

facts, but the conclusions to which they lead,

may be testified to by qualified experts " ) (the

Court finding insufficient factual support for

the expert opinions expressed); Copenhaver, 113

P. at 470; see also v. land, Md. App.,

38 Md. 15 (1873) (allowing a doctor's opinion as

to whether injuries were likely to have been

occasioned by accidentally falling into a sink

even though the doctor was not present during the

whole cross-examination of the witnesses). [**20]

At least as early as 1854, medical experts were

used in Delaware. Medical witnesses were allowed

to give their opinions about a prisoner's state

of mind at the time of the alleged crime. See

State v. Windsor, Del. Ct. General Sessions, 5

Del. 512, 5 Harr. 512 (1854). By 1862 it was

" well settled " that testamentary witnesses,

practitioners of the medical professions and

experts were always allowed to testify as the

testator's mental capacity and they did not have

to state the " particular grounds on which they

formed [their opinions]. " Lodge v. Lodge, Del.

Super., 7 Del. 418, 2 Houst. 418, 421 (1862). n12

The use of medical experts to determine issues

continued throughout the 1800s. See Doe v. Roe,

Del. Super., 10 Del. 14, 5 Houst. 14 (1875)

(allowing expert medical testimony to determine

whether a child was born alive); State v.

Reidell, Ct. of Oyer and Terminer, 14 Del. 470, 9

Houst. 470, 14 A. 550, 552 (1888). With time,

Delaware Courts allowed expert testimony to

be [*839] used to prove matters beyond

medicine. See Rice v. Pennypacker, Del. Ch., 5

Del. Ch. 33 (1875) (admitting expert testimony in

the science of bookkeeping); Maxwell v.

Wilmington City Railway Co., Del. Super., 15 Del.

199, 1 Marvel 199, 40 A. 945, 946 (1893)

[**21] (allowing a locomotive engineer to give

his opinion in a negligence case as to whether a

train car could have stopped more quickly with

the application of sand to the steel rails); but

see State v. Fleming, Del. Ch., 3 Del. Ch. 153

(1867) (not allowing expert testimony on the

issue of whether a trustee had acted with due

diligence and fidelity because, as the Court

noted: " it is for the Court, not for the

witnesses, to adjudge the question of neglect, bad faith or mismanagement). "

n12 One is tempted to draw too much from this

comment, i.e., a n deference to

established hierarchy. But the effort was

probably directed to distinguishing between the

factual basis necessary for expert and law opinions.

It became commonplace throughout the country for

the Trial Judge to preliminarily determine if the

expert was or was not qualified to

testify. Congress and Empire Spring Co. v.

Edgar, 99 U.S. 645, 658, 25 L. Ed. 487 (1878). If

the expert was qualified, then it was up to the

jury to determine [**22] what, if any, weight to

be given to the testimony. Id. It was, and is,

the duty of the Trial Judge to decide whether the

skill of any person in the matter on which

evidence of his opinion is offered is sufficient

to entitle him to be considered an expert.

Reynolds, on Evidence, 78 (1879).

While the early law concerning experts was

confused to a large extent by the diversity of

practice and the exercise of judicial discretion

(see Dole, 50 N.H. 452), the confusion was

somewhat set to rest in the 1920s. The

predominant test that emerged for the

admissibility of expert opinion testimony was the

so-called Frye " general acceptance " test. See

Frye v. U.S., D.C. App., 54 App. D.C. 46, 293 F.

1013 (1923). The Frye Court stated that, before

admitting expert opinion, the scientific

principle or discovery must be sufficiently

established to have gained general acceptance in

its particular field. 293 F. at 1014. For 70

years after its formulation, the " general

acceptance " test was the dominant standard for

determining novel scientific evidence at trial.

See Daubert, 509 U.S. at 585 (citing E. Green &

C. , [**23] Problems, Cases, and Materials on Evidence 649 (1983)).

Although not specifically enunciated, it appears

that Delaware followed the general trend for the

admissibility of expert testimony until the

adoption of the Federal Rules. The Frye approach

was never fully accepted nor rejected by the

Delaware Courts. See L. Finger & Louis J.

Finger, Delaware Trial Handbook, § 18:3 (1994).

Delaware Courts after Frye determined that expert

testimony is the evidence of persons who are

skilled in some art, science, profession, or

business; which skill or knowledge is not common

to their fellow men and which has come to such

experts by reason of special study and

experience. Culver v. Prudential Ins. Co. of

America, Del. Super., 36 Del. 582, 6 Harr. 582,

179 A. 400, 403 (1935). n13 Because the general

rule in Delaware was that opinions of witnesses

were irrelevant, only out of necessity would the

Courts of this State allow an expert to give an

opinion. South Atlantic S.S. Co. of Delaware v.

Munkacsy, Del. Supr., 37 Del. 580, 7 Harr. 580,

187 A. 600, 604 (1938), cert. denied, 299 U.S.

607, 81 L. Ed. 448, 57 S. Ct. 233 (1936). " Upon

matters which may be supposed [**24] to be

outside the knowledge of persons of common

education and experience, and with respect to

which they are likely to be incapable of forming

a correct judgment, witnesses shown to be

learned, skilled or experienced in such matters "

could, in a proper case, [*840] give their

opinion. Id. Judges had to preliminarily pass on

a witness' qualification to speak to determine if

the subject matter properly was within the field

of expert testimony. on v. , Del. Ch.,

14 Del. Ch. 124, 122 A. 541, 545 (1923). The

Trial Court's ruling would only be disturbed if

it was manifestly erroneous. Id. (citing Congress

& Empire Spring Co., 99 U.S. at 645).

n13 This phraseology is still commonly used

injury charges when the trial Judge explains the concept of expert testimony.

The adoption of the Federal Rules, however, cast

some doubt throughout the country as to the

applicability of the Frye test. See 4 ph M.

McLaughlin, Weinstein's Federal Evidence 2d.

§ 702 App.100. n14 Some [**25] Circuits held

that the enactment of the Federal Rule preempted

the Frye standard. See sen v.

Allied-Signal Corp., 5th Cir., 939 F.2d 1106,

1115 (1991) (holding that the Frye test and the

Federal Rules can co-exist); DeLuca v. Merrell

Dow Pharmaceuticals, Inc., 3d Cir., 911 F.2d 941,

953 (1990) (illustrating a more " liberal

criteria " to be used under the Federal Rules than

the " general acceptance " test enunciated in

Frye); United States v. Luschen, 8th Cir., 614

F.2d 1164, 1169 (1980) (the Court should use a

broader test than the " general acceptance " test

in determining the admissibility of an expert).

Other Courts, however, continued to use the Frye

test to govern the admissibility of expert

testimony, even after the enactment of the

Federal Rules. U.S. v. Shorter, D.C. Cir., 257

U.S. App. D.C. 358, 809 F.2d 54, 59-60 (1987)

(using the Frye test to determine the

admissibility of expert evidence after the

adoption of the Federal Rules); Novak v. U.S.,

6th Cir., 865 F.2d 718, 722 (1989) (testing the

admissibility of expert testimony under Rule 702

with the " generally accepted " test); U.S. v.

, 7th Cir., 869 F.2d 348, 352-53 (1989)

[**26] (using the Frye test to evaluate an

expert witness after the adoption of the Federal Rules).

n14 Rule 702 states: " 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. " D.R.E 702. Rule

703 states: " The facts or data in the particular

case upon which an expert bases an opinion or

inference may be those perceived by or made known

to him at or before the hearing. If of a type

reasonably relied upon by experts in the

particular field in forming opinions or

inferences upon the subject, the facts or data

need not be admissible in evidence. " D.R.E. 703.

Delaware did not exclusively rely on the Frye

general acceptance test after the adoption of the

Federal Rules. See v. State, Del. Supr.,

628 A.2d 69, 73 (1993); Fensterer v. State, Del.

Supr., 493 A.2d 959, 962 n.3

(1985), [**27] rev'd on other grounds, 474

U.S. 15, 88 L. Ed. 2d 15, 106 S. Ct. 292 (1985);

Whalen v. State, Del. Supr., 434 A.2d 1346, 1354

(1981), cert. denied, 455 U.S. 910, 71 L. Ed. 2d

449, 102 S. Ct. 1258 (1982). The Delaware Supreme

Court standard for expert admissibility prior to

Daubert was that an expert needed " only to show

that any test used as a basis for his opinion

[was] reasonably relied upon by experts in his

field. " Santiago v. State, Del. Supr., 510 A.2d

488, 489 (1986). Delaware thus adopted a point of

view more open to expert opinion other than Frye.

It did so by paraphrasing language from Delaware

Rule of Evidence 703. See Footnote 14. The

admissibility standards for expert testimony

generally changed with the United States Supreme

Court's ruling in the now landmark case of

Daubert, decided a month before . The

opinion demonstrates that Delaware anticipated Daubert.

In Daubert, the United States Supreme Court

decided that the Frye test was superseded by the

adoption of the Federal Rules. Daubert, 509 U.S.

at 587. The Supreme Court dispensed with what it

called a " rigid 'general acceptance' requirement "

holding that the [**28] Frye test

was [*841] at odds with the " liberal thrust " of

the Federal Rules. Daubert, 509 U.S. at 588. The

Court noted that expert testimony must be

" supported by appropriate validation -- 'good

grounds' on what is known. " n15 But there was a

kicker to the expansive trend. [HN1] The Daubert

standard required that scientific expert

testimony had to be not only relevant but also

reliable. 509 U.S. at 590-93, 597. The Court

required a preliminary assessment by the Trial

Court to determine whether the reasoning or

methodology underlying the expert's testimony is

scientifically valid and whether that reasoning

or methodology can be applied to the facts at

issue. 509 U.S. at 593. The Supreme Court opined

that when the Trial Court was faced with a

proffered expert, the Trial Judge, at the outset,

had to make a determination pursuant to Rule

104(a) as to the admissibility of expert

evidence. 509 U.S. at 592. [HN2] The Court set

forth some non-exclusive factors that Courts

could consider in making a determination as to

whether an expert's testimony was relevant and

reliable. They included: 1) whether the technique

or scientific knowledge is capable of testing or

has [**29] been tested (the testing

requirement), 2) whether the theory or technique

has been subjected to peer review and publication

(the publication requirement), 3) the known or

potential rate of error and the standards for

controlling the technique's operation (the

control requirement), and 4) whether the

technique had gained " general acceptance. " 509

U.S. at 593-594. The Court warned that the Trial

Court's inquiry was a flexible one and that the

factors set forth within the Opinion were not to

be considered a " definitive checklist or test. " 509 U.S. at 593.

n15 It is interesting to note that D.R.E. 703, in

talking about whether necessity of admissibility

of the " facts or data ... upon which an expert

bases an opinion, " states such facts and data

need not be admissible " if a type reasonably

relied upon by experts in the particular

field.... " It would seem this codified standard

would be sufficient, not only to negate the

necessity of admissibility, but to give a

standard for the degree of acceptance required.

But we Judges seem to have a propensity for

saying the same proposition in different ways to

the confusion of everyone, even the lawyer reader.

[**30]

Daubert is a two-sided coin. On the one side, it

is expansive, rejecting the exclusivity of the

" general acceptance " requirement; on the other

side, it is restrictive, with a focus on the

Trial Judge's responsibility as a gatekeeper on

reliability. Relevance takes on an added

qualitative dimension, one that involves the

Trial Judge deeper into fact finding as to the

threshold decision on the admission of evidence.

Courts are not just to let the opinion of the

credentialed expert into evidence for what it is

worth and leave its evaluation to the jury. No

longer was exclusion to be limited to the

off-the-wall ramblings of itinerant medicine men

who earn their living by testifying. Daubert is

clearly a further effort, and a deeper one, to

curb speculation by imposing legal guideposts in

an attempt to require a reasonable quality of

expert opinion under standards used in the expert

community. But Daubert was also designed to

escape the consensus threshold of Frye and give

full range to respectable expert opinion.

The Supreme Court's decision in Daubert, however,

did not settle the entire debate as to how expert

testimony was to be handled. Footnote 8 of the

Daubert [**31] Opinion states: " Our discussion

is limited to the scientific context because that

is the nature of the expertise offered here. " 509

U.S. at 589 n.8. Lack of definitive guidance in

Daubert left Judges with the task of deciphering

Daubert's impact on non-scientific testimony.

M. Hrabosky, Note, Kumho Tire v.

Carmichael: [*842] Stretching Daubert Beyond

Recognition, 8 Geo. Mason L. Rev. 203, 207 (1999).

Logical arguments regarding Daubert's

applicability to non-scientific expert testimony

remained an open issue until the Kumho Tire

decision. In the interim, there was a split

between Federal Circuit Courts as to whether the

Daubert decision applied to nonscientific experts

(whatever that concept may include). Some Federal

Circuits, including the Fifth and the Eighth

Circuits, held that Daubert was applicable to the

non-scientific expert testimony. See v.

Ashland Chemical, Inc., 5th Cir., 151 F.3d 269,

275 n.6 (1998) (holding that the general

principles of Rule 702 recognized by the Daubert

decision are applicable to other species of

expert testimony); Dancy v. Hyster Co., 8th Cir.,

127 F.3d 649, 652 (1997) [**32] (expressly

rejecting the idea that Daubert principles apply

to only scientific principles or methods). Other

Courts held that the Daubert factors were only

applicable to testimony bearing on scientific

knowledge. McKendall v. Crown Control Corp., 9th

Cir., 122 F.3d 803, 806 (1997); Compton v. Subaru

of America, Inc., 10th Cir., 82 F.3d 1513, 1518

(1996)( " The language in Daubert makes clear the

factors outlined by the Court are applicable only

when a proffered expert relies on some principle

or methodology. In other words, application of

the Daubert factors is unwarranted in cases where

expert testimony is based solely on experience or

training " ); Iacobelli Const., Inc. v. County of

Monroe, 2d Cir., 32 F.3d 19, 25 (1994) (holding

that Daubert sought only to clarify the standard

for evaluating " scientific knowledge " under Rule 702).

The United States Supreme Court attempted to

clarify the Daubert decision with its subsequent

decision in Kumho [HN3] Tire. The Kumho Tire

decision explicitly stated that the " evidentiary

rationale that underlay the Court's basic Daubert

'gatekeeping' determination [is

not] [**33] limited to 'scientific' knowledge. "

Kumho Tire Co., 119 S. Ct. at 1174. The Court

determined that the Rules grant latitude for the

Trial Court to evaluate all experts, not just

scientific ones. Id. The Supreme Court reiterated

that the Trial Judge must determine whether

expert testimony has a " reliable basis in the

knowledge and experience of [the relevant]

discipline. " 119 S. Ct. at 1175. The Supreme

Court explicitly stated that it is the job of the

Trial Court to determine whether the evidence is

reliable and whether the evidence has a valid

connection to the pertinent inquiry as a

precondition of admissibility. Id. n16 While the

precise analysis is somewhat issue-dependent,

this comprehensive approach certainly makes

common sense and eliminates one area of

definitional and classification nightmares.

n16 The Court also clarified that the Daubert

factors were meant to be helpful and not

definitive. 119 S. Ct. at 1175. The Court

emphasized that the application of the Daubert

factors depends on the circumstances of the particular case. Id.

[**34]

In , 628 A.2d 69, 74, our Supreme Court

adopted for the admission of expert testimony an

application of the Delaware Rules of Evidence

expert witness approach first articulated by

Judge Gebelein in State v. Pennell, Del. Super.,

584 A.2d 513, 515 (1989). As annotated by the

Supreme Court, [HN4] a Court needs to determine:

1. The expert witness is qualified ((D.R.E. 702);

2. The evidence is otherwise admissible,

relevant, and reliable (D.R.E. 401 and 402);

3. The bases for the opinion are those reasonably

relied upon by experts in the field (D.R.E. 703);

4. The specialized knowledge being offered will

assist the trier of fact to [*843] understand

the evidence or determine a fact in issue (D.R.E. 702); and

5. The evidence does not create unfair prejudice,

confuse the issues, or mislead the jury (D.R.E. 403).

Following the Kumho Tire decision, the Delaware

Supreme Court has followed its trend and adopted

as its own the United States Supreme Court

precedent regarding the admissibility of expert

testimony. n17 The trend began when, " in

v. State, the Delaware Supreme Court acknowledged

Daubert and held that, in this [**35] State, the

admissibility of scientific evidence is not

governed by Frye but by the Delaware Rules of

Evidence which generally track their federal

counterparts. " State v. Steen, Del. Super., 1999

Del. Super. LEXIS 407, C.A. No. 99A-04-016,

Barron, J. (July 29, 1999) (citing , 628

A.2d 69 at 74). Then, just last year, the

Delaware Supreme Court affirmatively held that

" [HN5] since Delaware Rule of Evidence 702 is

identical to its federal counterpart, we rely on

the United States Supreme Court's most recent

authoritative interpretation of Federal Rule of

Evidence 702. " M.G. Bancorporation, 737 A.2d at

521. The Delaware Court thus has expressly

adopted the holdings of Daubert and Kumho Tire as

the correct interpretation of Delaware Rule of Evidence 702.

n17 It certainly helps respect for the law when

identical or similar concepts are given the same

interpretation by Federal and State Courts.

[HN6]

Under Daubert, Kumho Tire and M.G.

Bancorporation, the Trial Judge acts as the

gatekeeper [**36] to ensure that the scientific

testimony is not only relevant but reliable. 737

A.2d at 521; Pfizer v. Advanced Monobloc Corp.,

Del. Super., 1999 Del. Super. LEXIS 509, C.A. No.

97C-04-037, Quillen, J. (Sept. 24, 1999). The

Trial Judge must play an active role in ruling on

the admissibility of evidence. C. Barry,

Comment, Admissibility of Scientific Evidence in

the Remand of Daubert v. Merrell Dow

Pharmaceuticals, Inc.: Questioning the Answers, 2

Widener L. Symp. J. 299, 311 (1997). [HN7] The

polestar must always be scientific or other

validity and the evidentiary relevance and

reliability of the principles that underlie a

proposed submission. Kinnaman v. Ford Motor Co.,

D. Mo., 2000 U.S. Dist. LEXIS 235, No.

4:98CV269-SNL, Limbaugh, J. (Jan. 10, 2000)

(quoting Jaurequi v. Mfg. Co. Inc., 8th

Cir., 173 F.3d 1076, 1081 (1999)). n18

n18 After clearing the evidentiary hurdle of Rule

702, parties still have to satisfy Rule 403's

requirement that evidence must be more probative

than prejudicial. Weinstein's Federal Evidence 2d § 702.5[4].

[**37] [HN8]

As one would suspect, the proponent of the

proffered expert testimony bears the burden of

establishing the relevance, reliability, and

admissibility by a preponderance of the

evidence. National Bank of Commerce v. Dow

Chemical Co., D. Ark., 965 F. Supp. 1490, 1497

(1996), aff'd, 8th Cir., 133 F.3d 1132 (1998);

Schmaltz v. Norfolk & Western Railway Co., D.

Ill., 878 F. Supp. 1119, 1120 (1995); see also

Harvey Brown, Procedural Issues Under Daubert, 36

Houst. L. Rev. 1133, 1136 (1999) (citing eases).

Another source of confusion is the appropriate

procedure. [HN9] In Daubert, the Court opined

that " faced with a proffer of expert scientific

testimony, then, the Trial Judge must determine

at the outset, pursuant to Rule 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

at issue. " n19 Daubert, 509 U.S. at 592,

113 [*844] S.Ct. 2786. And, with that

statement, the so-called Daubert hearing was born. n20

n19 [HN10] Rule 104(a) provides: " 'Preliminary

questions concerning the qualification of a

person to be a witness, the existence of a

privilege, or the admissibility of evidence shall

be determined by the court, subject to the

provisions of subdivision ( [pertaining to

conditional admissions]. In making its

determination it is not bound by the rules of

evidence except those with respect to

privileges.' These matters should be established

by a preponderance of proof. See Bourjaily v.

United States, 483 U.S. 171, 175-176, 107 S. Ct.

2775, 2778-2779, 97 L. Ed. 2d 144 (1987). "

Daubert, 509 U.S. at 592 n.10; Del. R. Evid. 104(a).

[**38]

n20 Evidentiary hearings to determine the

admissibility of evidence were also performed

under the Frye standard. See U.S. v. Bonds, 6th

Cir., 12 F.3d 540 (1993). It never ceases to

amaze this Judge how authors of procedural

intricacies seem to assume that the case at hand

is the only one on the docket and time is an

endless commodity rather than a precious one.

Daubert hearings were created for Courts to

determine the soundness of an expert's opinions.

A Daubert hearing was meant to be a manageable

evidentiary hearing where the Trial Judge could

outline and evaluate the qualifications of an

expert prior to trial. Louis A. s, Giving

Lie to Antiquated Notions About Scientific

Evidence, 22 Am. J. Trial Advoc. 507, 537-38

(1999). These hearings were not required in every

case and for every expert. Id. at 540. Some

Courts, however, erroneously held that Daubert

hearings were mandatory for all experts. See

Daubert v. Merrell Dow Pharmaceuticals, Inc., 9th

Cir., 43 F.3d 1311, 1319 n. 10 (1995) (holding

after [**39] remand that " where the opposing

party thus raises a material dispute as to the

admissibility of expert scientific evidence, the

district court must hold an in Limine hearing (a

so-called Daubert hearing) to consider the

conflicting evidence. . Caubarreaux v. E.I.

DuPont de Nemours, La. App., 714 So. 2d 67, 71

(1999) (holding that under Daubert and State law

principles, the Trial Court is mandated to order

a pretrial or status conference to discuss and

simplify any Daubert issues, or, if those issues

are still not resolved, to hold a pretrial

Daubert hearing). The requirement of mandatory

Daubert hearings appears to have been the

minority view. Kirstein v. Parks Corp., 7th

Cir., 159 F.3d 1065, 1067 (1998) ( " We have not

required that the Daubert inquiry take any

specific form and have, in fact, upheld a judge's

sua sponte consideration of the admissibility of

expert testimony " ); Target Marketing Publishing,

Inc. v. Advo, Inc., 7th Cir., 136 F.3d 1139, 1142

n.9 (1998) (holding that the Supreme Court does

not require an evidentiary hearing in every

case); City of Tuscaloosa v. Harcros Chemicals

Inc., 11th Cir., 158 F.3d 548, 565 n.21 (1998)

[**40] ( " Daubert hearings are not required by

law or rules of procedure... " ); U.S. v. Call,

10th Cir., 129 F.3d 1402, 1405 (1997) (opining

that Daubert hearings are not required). Thus,

prior to Kumho Tire, a Trial Judge was not

required to hold a hearing on the admissibility

of expert evidence; the Judge could decide

without a hearing if the parties have given a

sufficient evidentiary basis for the decision.

Weinstein's Federal Evidence 2d § 702.2[2].

To the extent the question of whether a Daubert

hearing was required in all cases remained open,

the Kumho Tire decision wisely cleared the air

when it held that a Court does not need to hold a

full evidentiary hearing each time a party offers

expert witness testimony. In re Syed, D. Ill.,

238 B.R. 133, 142 (1999), see generally Harvey

Brown, Procedural Issues Under Daubert, 36 Houst.

L. Rev. 1133, 1149 (1999). The Trial Court should

have the same kind of latitude in deciding how to

test an expert's reliability, and deciding

whether or when special briefing or other

proceedings are needed to investigate

reliability, as it enjoys when it decides whether

or [**41] not that expert's relevant

testimony [*845] is reliable. Tanner v.

Westbrook, 5th Cir., 174 F.3d 542, 546 (1999)

(quoting in part Kumho Tire, 119 S. Ct. at 1176).

The latitude provided by Kumho Tire allows the

Court to decide " what proceedings, if any, are

needed to investigate reliability. " Weinstein's

Federal Evidence 2d § 702.5[2][a]; U.S. v.

Nichols, 10th Cir., 169 F.3d 1255, 1262-64 (1999)

(reviewing the denial of a Daubert hearing with abuse of discretion standard).

Although Daubert hearings are intended to be

quite brief, they can become lengthy. See s,

supra, p. 17 at 538 n.137-138. n21 In fact, just

last year, the Fifth Circuit stated:

We would be remiss if we did not note that we are

troubled by the amount of judicial resources that

were devoted to the Daubert hearing. In a case

capable of being tried start to finish in a day

and one half, not only the court but the lawyers

were engaged for the better part of five days in

a hearing to determine the reliability of

testimony and potential prejudice of exhibits

involving a well known test that is applied in a

straight forward manner. [**42]

U.S. v. Katz, 5th Cir., 178 F.3d 368, 371 (1999). n22

n21 Professor s states in footnote 138 that

Judges, law clerks, and staff often appreciate

the break from mundane matters provided by the

novelty of Daubert. With the heavy caseload of

this Court, the lengthy and time-consuming

process of a Daubert hearing cannot become

standard fare. If it does, surely the novelty of

the Daubert hearings would wear off in a hurry.

n22 This Judge has recently commented: " I can

think of nothing more disastrous to civil case

processing in this Court than this Court's

routinely undertaking expensive pretrial

testimonial Daubert hearings in the typical

personal injury case. Until one of the deities in

our hierarchy speaks, this trial Judge, with a

civil calender of well over 500 cases as half of

his work, will resist such a burdensome

undertaking and make the pretrial decision on the

basis of deposition .... " Ward v. Shoney's Inc.,

Del. Super., 2000 Del. Super. LEXIS 36, C.A. No.

98C-09-032, Quillen, J. (Feb. 24, 2000).

[**43]

The case currently before the Court is a prime

example of how Daubert hearings could overwhelm.

There are over 500 docket entries, and there are

literally boxes of reports, depositions, and

affidavits submitted in support of the parties'

respective Motions to exclude experts. Recently,

Plaintiffs' counsel has requested that the trial

date be stayed so that the parties can have

Daubert hearings in the time that is reserved for

the trial (for a period of three weeks). n23 Such

a request and similar requests, if granted in

every case, could cripple the trial calender.

While the matter is always discretionary, absent

a special reason and need to have the hearings,

requests for them should generally be denied. The

discovery record should, in a contested case,

normally supply a satisfactory basis for a ruling.

n23 In a letter to the Court, dated February 17,

2000, Plaintiffs' counsel notes that he " has only

been involved in one case where there have been

extensive 403 hearings. In that instance, there

were only four witnesses who were being

challenged and the hearings lasted over four days. "

[**44]

A pretrial procedure of some sort is, however,

required. The Judge must gather the necessary

information and evaluate the reliability of the

underlying principles, the methodology employed

by the expert witness, n24 and the potential

relevance of the proposed evidence. Standards and

Procedures for Determining the Admissibility of

Expert Evidence after Daubert, 157 F.R.D. 571,

580 (1994). [HN11] The [*846] Court, in the

normal course, should be supplied with the

expert's report and the expert's deposition

testimony, as well as any supporting affidavits,

prior to making any determination as to whether a

Daubert hearing is necessary. At that point, the

Court should decide: 1) if a Daubert hearing

should be held, and 2) on what issues. If, for

special reasons, a Daubert hearing is deemed

necessary, the Court should try to narrow the

issues prior to the evidentiary hearing. If

allowed, the hearings should be brief and

targeted to the specific questions of the Court.

The Court, however, should normally be able to

rule, as a matter of law, on the papers, as to

whether a hearing should be allowed and whether

an expert or set of experts is qualified to speak

on a particular [**45] subject.

n24 " Nothing in either Daubert or the Federal

Rules of Evidence requires a district court to

admit opinion evidence which is connected to

existing data only by the ipse dixit of the

expert. " General Electric Co. v. Joiner, 522 U.S.

136, 146, 139 L. Ed. 2d 508, 118 S. Ct. 512 (1997).

In this case, there are no special circumstances.

The parties have done an excellent job of

providing the Court with a sufficient evidentiary

basis to perform its " gatekeeping " function. n25

While there will undoubtedly be fine tuning prior

to trial, this record provides a sufficient

evidentiary basis to make a pretrial decision on

the reliability, methodology, and relevance of

the experts from the information provided.

Weinstein's Federal Evidence 2d § 702.2[2].

Therefore, any request for pretrial Daubert evidentiary hearings is DENIED.

n25 There is a problem of emphasis in cases of

multiple attack. The advocates naturally tend to

focus the debate on the subjects where exclusion

of the evidence is the most likely. This focus

leaves the record more bare in areas where

scientific opinion is more established and the

Court is more inclined to permit the evidence.

[**46]

Ultimately, the testimony of an expert is

admitted upon the theory that, in a particular

case, the issue is such that the jurors are not

competent to draw their own conclusions from the

facts without the aid of the expert.

Werne, on Expert Testimony, vii (3d ed.

1941). The theory of expert testimony, as

described in 1899, is equally applicable today.

" Expert capacity is a matter wholly relative to

the subject of the particular question; that

therefore the existence of the capacity arises in

theory as a new inquiry from question to

question; and that a particular person is not to

be thought of as objectively or absolutely an

expert in the sense that he is absolutely a

German ... or six feet high. " 1 Greenleaf on

Evidence 523 (16th ed. 1899). The legal apparatus

of our free and increasingly democratic society

has wrestled with the problem of dealing with

complex issues, issues calling for special skill

and knowledge not common to the average man or

woman. For the moment, with our jury trial

history, we have focused on getting our help from

the witness box in the form of the expert

witness. But our skepticism of such compensated

advocacy is high and we no longer [**47] rest on

the mere proper credentials of the expert

witnesses or even on being satisfied as to the

general relevancy of the expert's opinion. We now

require the Trial Judge, notwithstanding his or

her laity, to test the reliability of the

expert's opinion. The basis of the opinion must

have " good grounds " when judged by experts in the

same general field as the witness. The Trial

Judge must determine whether the reasoning and

methodology is valid by the professional

standards of the scientific, professional, or

business field of the expert. And the Trial Judge

must determine whether the expert's reasoning or

methodology can be applied to the facts at issue.

The burden is a heavy one and one that will tax

even the best Trial Judges, a hearty breed who

pride themselves as decision-making pragmatists

in the field of battle. But there can be no

question that the burden has been imposed. [*847]

DECISION

To meet the inquiry required by Daubert, Kumho

Tire and M.G. Bancorporation, the Court in this

case must closely examine whether or not there is

a sufficient methodological foundation for the

experts to give their opinion to the jury. Taking

the five steps listed in , there

[**48] does not seem to be any issue of the

experts' general, or even specific,

qualifications; specialized knowledge is demanded

by the facts of the case; there is no unfair

prejudice created by the use of expert testimony;

and the evidence is relevant at least in a

general sense. n26 The questions focus on the

reliability of the evidence and the bases for the

opinions being offered. Evaluating the expert

opinion in this case is a difficult task because

there is a great deal of debate as to whether

certain of the Plaintiffs' alleged diseases are

medically viable diagnoses and whether the

building in fact caused their illnesses.

n26 " Relevant evidence " itself, of course, has a

reliability factor, " evidence having any tendency

to make the existence of [a] fact ... more

probably or less probable.... " D.R.E. 401

(emphasis added). But reliability in a Daubert

sense is qualitatively different.

It appears that the best approach to take in this

instance is to evaluate the Plaintiffs' experts

first to determine [**49] whether their opinions

are based on " good grounds " on what is known. The

expert testimony sought to be excluded by

Defendants is the testimony of several medical

professionals who have either diagnosed the

Plaintiffs with certain illnesses or have opined

that certain unspecified agents in the Discover

Card building have caused the Plaintiffs'

illnesses. Defendants contend that the expert

doctors employed by the Plaintiffs who have

diagnosed the Plaintiffs with Multiple Chemical

Sensitivity ( " MCS " ) and Sick Building Syndrome

( " SBS " ) should not be allowed to be heard by the

jury because these diagnoses are not validly

diagnosable conditions. Defendants further

contend that any diagnosis of Fibromyalgia ( " FM " )

and Chronic Fatigue Syndrome ( " CFS " ) cannot be

related to the conditions at the Discover Card

building because there are no known causes for

the illnesses. Finally, as to the remainder of

the multitude of alleged illnesses of the

Plaintiffs, Defendants claim that there is no

specified causal agent that links any of the

Plaintiffs' illnesses to the conditions at their workplace. n27

n27 This Court held oral argument on the Motions

in Limine and specifically asked counsel for both

sides to discuss whether the diseases were

medically valid diagnoses. The Court asked the

parties if there were any known causes for these

diseases. The Court also asked the parties to

discuss whether there was any specific agent in

the Discover Card building that could have caused these diseases.

[**50]

It seems to the Court that the analytical

approach of the Defendants is a good one. It also

seems to the Court that the issues being raised

by Defendants' three-pointed attack are different

on a spectrum of pure medicine (science-like) to

a mixed question of medicine and law

(non-science-like). Whether a diagnosis is

directed to a validly diagnosable condition is

almost necessarily a consensus type question

where, even under the non-exclusive factors

suggested in Daubert, some tribute should be paid

to " general acceptance. " Daubert at 593-94. When

one moves along the spectrum to cause, there

should be more leeway for individual opinion of a

qualified expert. But where there is a general

concession of no known cause, opinion drifts into

the realm of speculation: To the contrary, where

known causes exist, and the opinion is voiced

that a similar factor present in a given case

probably caused the illness, one must at least be

tempted to let the injured party have his or her day in Court. [*848]

As a threshold matter, Daubert neither requires

nor empowers Trial Courts to determine which of

several competing scientific theories has the

best performance. Ruiz-Troche v. Pepsi Cola of

Puerto Rico Bottling Co., 1st Cir., 161 F.3d 77,

85 (1998). [**51] Daubert demands only that the

proponent of the evidence show that the expert's

conclusion has been arrived at in a sound and

methodologically reliable manner. Id. (citing

Kannankeril v. Terminix International, Inc., 3d

Cir., 128 F.3d 802, 806 (1997); In re Paoli R.R.

Yard PCB Litigation, 3d Cir., 35 F.3d 717, 744

(1994)). There are, however, differences between

truth seeking in the courtroom and in the

laboratory. v. Ashland Chemical Inc., 5th

Cir., 151 F.3d 269, 275 (1998).

It is true that open debate is an essential part

of both legal and scientific analyses. Yet there

are important differences between the quest for

truth in the courtroom and the quest for truth in

the laboratory. Scientific conclusions are

subject to perpetual revision. Law, on the other

hand, must resolve disputes finally and quickly.

The scientific project is advanced by broad and

wide ranging consideration of a multitude of

hypotheses, for those that are incorrect will

eventually be shown to be so, and that in itself

is an advance. Conjectures that are probably

wrong are of little use, however, in the project

of reaching a quick, final, and [**52] binding

legal judgment--often of great consequence--about

a particular set of events in the past... [A]

gatekeeping role for the judge, no matter how

flexible, inevitably on occasion will prevent the

jury from learning of authentic insights and

innovations. That, nevertheless, is the balance

that is struck by Rules of Evidence designed not

for the exhaustive search for cosmic

understanding but for the particularized resolution of legal disputes.

Daubert, 509 U.S. at 596-97.

This is one of those cases where it is possible

that the precepts of science have not caught up

with all of the claims of the Plaintiffs. But the

Court must evaluate those claims in a snapshot in

time and finally decide the dispute. The most

expeditious way to evaluate the relevance and

reliability of the Plaintiffs' experts is to

first evaluate the testimony of Dr. Grace Ziem.

Dr. Ziem seems to be the most controversial of

the experts presented and her expert testimony

and reports were relied upon by several of the

other experts at issue in this case.

I. DEFENDANTS' MOTIONS TO EXCLUDE EXPERTS

A. Dr. Grace Ziem

Dr. Grace Ziem is a physician, employed by the

Plaintiffs, [**53] purportedly as a treating

physician and expert witness in this case. Dr.

Ziem received her medical degree from the

University of Kansas, and has continued her

education by receiving a Masters of Public Health

from s Hopkins University, a Master of

Science in Hygiene from the Harvard School of

Public Health, and a Ph.D. from the Harvard

School of Public Health. Curriculum Vitae of

Grace Ziem, M.D. Dr.P.H., Dkt. No. 526, Ex. 1. In

this instance, it appears that there are no real

questions as to Dr. Ziem's qualifications to

testify as an expert. Rather, this Judge must

determine whether the evidence Dr. Ziem presents

is genuinely scientific, as distinct from being

unscientific speculation from a genuine

scientist. Rosen v. Ciba-Geigy Corp., 7th Cir.,

78 F.3d 316, 318 (1996), cert. denied, 519 U.S.

819, 136 L. Ed. 2d 33, 117 S. Ct. 73 (1996).

In short, the Defendants dispute two main points

relating to Dr. Ziem's testimony. [*849] The

Defendants argue first that Dr. Ziem's diagnoses

of Brennan, Muttart, and Minner lack a sufficient

methodological foundation to allow her expert

testimony to be given to the jury. Second, the

Defendants argue that, because of her limited

knowledge and limited [**54] visitation with

each of the Plaintiffs, Dr. Ziem's testimony

cannot be offered as a treating physician.

Dr. Ziem issued a combined report concerning

Brennan. Muttart, and Miner. Dr. Ziem opined that

these three of her patients have chronic

illnesses involving various similar symptoms.

Ziem Report Dated May 25, 1998, Dkt. No. 455, Ex.

3. Dr. Ziem diagnosed all three patients with

Multiple Chemical Sensitivity ( " MCS " ), Sick

Building Syndrome ( " SBS " ), Chronic Fatigue

Syndrome ( " CFS " ), Fibromyalgia ( " FM " ), Reactive

Airways Dysfunction Syndrome ( " RADS " ), and Toxic

Encephalopathy ( " TE " ). Id. Dr. Ziem concluded her report by stating:

These patients were chronically exposed to off

gassing from frequent renovations in a tight

building with documented inadequate air quality,

they all were exposed to a building with a

chronic moisture problem which leads to mold

contamination and the release of mold-generated

toxins into the working environment, they all

were exposed chronically and frequently to

construction dust over a long period of time.

Volatile chemical compounds can and do adhere

onto dust particles (thus carrying them deep into

the lungs). In addition, cleaning chemicals

[**55] were apparently used in the heating and

ventilation system as a treatment for mold

contamination and these could also have been a

contributing factor to the illness.

Id.

The Court will evaluate Dr. Ziem's individual

diagnoses in turn and attempt at the same time to

evaluate the scientific validity of her diagnoses

and determine whether there are any flaws in her causation analysis.

1. Multiple Chemical Sensitivity n28

n28 Dr. Ziem is the only expert doctor to diagnose the Plaintiffs with MCS.

Dr. Ziem has diagnosed the Plaintiffs with MCS.

Dr. Ziem's testimony concerning MCS must be

excluded from the jury as unreliable on two

fronts under the Daubert standard. First, the

Court is satisfied that MCS is not a

scientifically valid diagnosis. Second, the Court

opines that Dr. Ziem's testimony that the

Discover Card building somehow caused Plaintiffs'

MCS seems to be based on nothing other than speculation.

There is no standard definition of MCS. A.

Slotkoff, D. Radulovic & D. Clauw, [**56] The

Relationship Between Fibromyalgia and the

Multiple Chemical Sensitivity Syndrome, Scand J.

Rheumatol 1997; 26:364-7, Dkt. No. 526, Ex. 18;

see also Buchwald & Garrity, Comparison of

Patients with Chronic Fatigue Syndrome,

Fibromyalgia, and Multiple Chemical

Sensitivities, Arch Intern. Med/Vol 154, at 2050

(Sept. 26, 1994). Although attempts have been

made to establish diagnostic criteria, no strict

definition of MCS has ever been obtained and no

consistent pattern of immunological dysfunction

has developed. A. Slotkoff, D. Radulovic & D.

Clauw, at 366. One of the sources provided by the

Plaintiffs offers what might be the general attitude concerning MCS.

The origins of MCS are unknown but highly

controversial in the medical community.

Physicians at one extreme consider the syndrome

to be pathophysiologically induced. Physicians at

the other extreme argue that the chemical

sensitivity in MCS syndrome is imaginary

attributable to the patient's misrepresentation,

or the physician's misdiagnosis, [*850] of a

traditional psychiatric disorder, (e.g., major

depressive, phobic, generalized anxiety, or

somatoform disorders). Yet, other physicians take

an intermediate stance [**57] on the origins of

MCS syndrome, one that implicates both

personality and environment as etiological factors

A. off & L. Fogarty, Psychogenic Origins of

Multiple Sensitivities Syndrome: A Critical

Review of the Research Literature, 49 Archives of

Environmental Health, 316, 317 (No. 5) (Sept./Oct. 1994), Dkt. No. 504.

Mainstream medicine has neither properly defined

nor widely accepted MCS as an organic entity.

E. Gotts and Tamar D. Hamosh, Multiple

Chemical Sensitivities: A Symposium on the State

of the Science, 18 Regulatory Toxicology and

Pharmacology, 61, 62 (1993), Dkt. No. 461, Ex. G.

To this point, most Courts have not recognized

the diagnosis of MCS as a scientifically valid

diagnosis. Coffey v. County of Hennepin, D.

Minn., 23 F. Supp. 2d 1081, 1086 (1998) (citing

Brown v. Shalala, 8th Cir., 15 F.3d 97, 100

(1994); Summers v. Missouri Pacific R.R. System,

10th Cir., 132 F.3d 599, 603 (1997); Bradley v.

Brown, 7th Cir., 42 F.3d 434 (1994); Coffin v.

Orkin Exterminating Co. Inc., D.Me., 20 F. Supp.

2d 107 (1998); v. State of New York,

D.N.Y., 972 F. Supp. 130, 136-37 (1997);

[**58] on v. International Flavors &

Fragrances, Inc., D.Cal., 950 F. Supp. 981, 1002

(1996)), see also, Carlin v. RFE Indus. Inc.,

D.N.Y., 1995 U.S. Dist. LEXIS 19035, No. 88-

CV-842, 1995 WL 760739, at *4, Scanlon, J. (Nov.

27, 1995); Treadwell v. Dow-United Technologies,

D. Ala., 970 F. Supp. 974, 982 (1997); v.

Welch, N.Y. Supr., 178 Misc. 2d 107, 678 N.Y.S.2d

444 (1998); but see, Creamer v. Callahan, D.

Mass., 981 F. Supp. 703, 705 (1997) (remanding

case to ALJ because the Social Security

Administration recognizes MCS as a medically determinable impairment).

This Court is inclined to follow the general

consensus. The sources provided by the Plaintiffs

simply have not convinced this Court that MCS as

a disease has reached the threshold of

reliability needed to survive a Daubert inquiry.

Such a diagnosis from a medical standpoint does

not appear to have sufficient support from the literature to be credible.

But even if MCS would be considered a valid

medical diagnosis, as the Social Security

recognition might suggest, there is another

significant flaw in Dr. Ziem's testimony. That

is, she cannot identify a known cause of MCS.

This [**59] appears to be the problem with MCS;

people who make the diagnosis make unsupported

judgments about causation. Conclusions and

Recommendations on Multiple Chemical

Sensitivities (MCS), 24 Regulatory Toxicology and

Pharmacology S-188 (1996). A lack of causal

connection is borne out by Dr. Ziem's own

testimony. Dr. Ziem opines that there were

myotoxins in the air that caused the onset of

MCS. At her December 11, 1998 deposition. Dr.

Ziem was not aware of any published literature

supporting a theory that mycotoxin exposure could

cause Multiple Chemical Sensitivity. Ziem Dep. at

603, Dkt. No. 464. n29 In fact, she had not even

done a search for that information. Id. n30

Additionally, Dr. [*851] Ziem has failed in

substance to provide this Court with a scientific

or diagnostic method that supports her theory

that myotoxins in the air caused the Plaintiffs'

MCS. Causation of injury must be supported by

more than the word of Dr. Ziem. n31 [HN12] An

opinion cannot be based simply on the ipse dixit

of the expert. General Electric Co., 522 U.S. at

146. Here, there is no cognizable link between

the chemicals or toxins to which Plaintiffs may

have been exposed and the purported MCS

[**60] they allegedly contracted. See Knapp v.

Vestal Central School District, N.Y. Supr., 247

A.D.2d 667, 668 N.Y.S.2d 718, 720 (1998). The

Plaintiffs have not met their burden of

establishing the admissibility of Dr. Ziem's

diagnosis of MCS by a preponderance of proof.

n29 The Court does not mean to imply that there

have to be published studies available for an

expert to give his or her scientific opinion on a

matter but it is one factor in determining

whether an expert's opinion, is based on good

grounds. Heller v. Shaw Industries, Inc., 3d

Cir., 167 F.3d 146, 154 (1999); Kannakeril, 128 F.3d at 809.

n30 This has been the fatal flaw in Dr. Ziem's

testimony in front of other Courts. In Chanin v.

Eastern Virginia Medical School, Va. App., 20 Va.

App. 587, 459 S.E.2d 523, 524 (1995), the

Virginia Court of Appeals opined that Dr. Ziem

failed to identify any substances in the De

University environment that could have caused Dr. Chanin's MCS.

n31 In keeping with the historical theme, the

requirement of causation was a well-recognized

essential element of the Plaintiffs case in chief

in Seventeenth Century trespass

actions. Zuchowicz v. U.S., 2d Cir., 140 F.3d

381, 384 n.2 (citing Weaver v. Ward, Hobart 134,

80 Eng. Rep. 28 (K.B. 1617) and Gibbons v.

Pepper, 1 Ray. 38, 91 Eng. Rep. 922 (K.B. 1695)).

" It is this question that we must seek to answer

today in the context of modern medicine. " Id. at 384.

[**61]

2. Sick Building Syndrome

Dr. Ziem has also opined that the Plaintiffs

suffer from SBS. While the Court is confident

that there are circumstances where

building-related illness can be diagnosed from an

exposure to specific chemicals, the Court is also

equally convinced that a general diagnosis of SBS

is not yet a medically valid diagnosis.

SBS research has been concentrated on the search

for causal relationships between possible factors

in the air in the ventilation in buildings and

the development of health effects pertaining

thereto. Ake Thorn, Case Report on a Sick

Building: Analysis and Interpretation in the

Context of its Disease History, 22 Scand. J. Soc.

Med. 228, 231 (1994). n32 The Defendants in this

case attack the diagnosis of SBS by illustrating

that there is no generally accepted diagnostic

criteria for it nor is there a generally accepted

definition of the syndrome. " There is no

universally accepted clinical definition of SBS

and no adequate theory for its occurrence. The

characteristics of SBS are non-specific symptoms

that occur in a particular building, and are not

caused by a specific illness such as

hypersensitivity pneumonitis or infection. "

A. [**62] Redlich, Judy Sparer & Mark

Cullen, Sick-building Syndrome, 349 The Lancet

1013 (April 5, 1997), Dkt. No. 504; see also,

Mark J. Mendell & Allan H. , Consistent

Pattern of Elevated Symptoms in Air-Conditioned

Office Buildings: A Reanalysis of Epidemiologic

Studies, 80 American J. of Public Health 1193

(Oct. 1990), Dkt. No. 504 ( " 'Sick Building

Syndrome'...has been recognized for over 15

years. Although particular chemical, biological,

physical, or psychological factors have been

implicated in some episodes, specific causes

generally have not been identified). "

Additionally, in a recent article in the New

England Journal of Medicine, researchers noted

that there is little convincing, direct evidence

to implicate specific causative agents for

building-related illnesses. Dick Menzies & Jean

Bourbeau, Building Related Illnesses, The New

England Journal of Medicine, Nov. 20, 1997. One author has written:

In the previous decade there has been increasing

debate about the symptom complex of " Sick

Building Syndrome. " The growing dissatisfaction

with the term originates from the total absence

of consistent case definition of the

" syndrome, " [*852] the lack of biological

[**63] markers for most symptoms, or even groups

of symptoms, and failure to find consistent

associations between " Sick Building Syndrome " and

any building contaminant(s) across a large number

of buildings studied. It has been argued that

utilization of this term has not improved our

understanding of the occurrence of these

symptoms, and further, that to label an entire

building as " sick " or " healthy " has no scientific foundation.

E.J. Bardana, Jr., Sick Building Syndrome-A Wolf

in Sheep's Clothing, 79 ls of Allergy, Asthma & Immunology, 283 (1997). n33

n32 Plaintiffs agree that SBS may not be a

specific medical diagnosis, but argue that it is

a separate physical condition related to the

building. Plaintiffs' Ans. Br. at 68.

n33 Bardana argues that SBS is a pseudodiagnosis

composed of nonspecific, transient symptoms

without known biological markers. Id.

In the Journal of the American Medical

Association, in a Council Report on Clinical

Ecology in 1992, the Council on Scientific Affairs [**64] stated:

In contrast to building related illness, no

specific causative agent has been identified for

the symptoms occurring in patients with the Sick

Building Syndrome. . . . The lack of agreement by

workers in this field over the definition of the

Sick Building Syndrome and inclusion and

exclusion criteria for patients suspected of

having this syndrome has hampered efforts to

design well-controlled studies. Evidence that

this syndrome exists as a separate disease entity

is weak. Some have claimed that mass hysteria and

other psychological factors are responsible for symptoms.

268 JAMA, Dec. 23/30, Clinical Ecology-Council on

Scientific Affairs 3455, 3466 (1992). The

Plaintiffs have provided sources that give

conclusory opinions about SBS, but the sources

provided do not give the Court sound diagnostic

criteria to evaluate the claims of illness due to

SBS. The literature in totality indicates that

the medical community has not accepted as valid a

diagnosis of SBS. Therefore, Dr. Ziem's diagnosis

of SBS lacks the pertinent characteristics in

sound scientific methodology to be put before the

jury. Simply, there is not a sound scientific

basis for Dr. Ziem's diagnosis [**65] of SBS and

this Court is forced to exercise his gatekeeping

function and exclude this diagnosis. Plaintiffs

have not demonstrated by a preponderance of proof

that a diagnosis of SBS is valid.

3. Chronic Fatigue Syndrome? n34

n34 Doctors Ziem, Howarth, Kaye, and Messinger

all opine that the building has caused CFS and FM.

Defendants also seek to exclude Dr. Ziem's

testimony as to her opinion that the Discover

Card building caused CFS in the Plaintiffs. There

is not a dispute between the parties that CFS is

a scientifically valid diagnosis. The Court's

ultimate conclusion on this issue, however, is

that Dr. Ziem's opinion that the Plaintiffs' CFS

was caused by the Discover Card building does not

have a valid scientific foundation.

Normally, CFS can be diagnosed when a patient has

had six or more consecutive months of severe

fatigue, reported to be unrelieved by sufficient

bed rest and accompanied by non-specific

symptoms, including flu-like symptoms,

generalized pain, and memory problems.

Diagnosis [**66] of Chronic Fatigue Syndrome,

http://www.cdc.gov.ncidod/diseases/cfs/cfs_info4.htm

12/22/99, Dkt. No. 528, Ex. 80. CFS is defined by

the U.S. Center for Disease Control for research purposes as:

persistent or relapsing fatigue lasting greater

than 6 months that is unexplained by any other

physical disorder... Numerous biochemical

abnormalities [*853] have been identified in

CFS patients but none as yet are considered

diagnostic. Many treatments are available, mostly

for specific symptoms or deficiencies, but

outcomes may vary and there is no know cure.

Albert Donnay, Overlapping Disorders: Chronic

Fatigue Syndrome, Fibromyalgia, Multiple Chemical

Sensitivity & Gulf War Syndrome,

http://www.mcsrr.org/factsheets/

overlapping.html, visited 1/08/00, Dkt. No. 526,

Ex 18. " Chronic fatigue syndrome, FM and MCS are

clinical syndromes that are poorly understood in

terms of cause, pathopsychology, natural history,

and appropriate medical management. " Buchwald &

Garrity, Comparison of Patients with Chronic

Fatigue Syndrome, Fibromyalgia, and Multiple

Chemical Sensitivities, Arch Intern. Med/Vol 154,

at 2050 (Sept. 26, 1994), Dkt. No. 526, Ex. 18.

n35 Several authorities support [**67] the

conclusion that the cause or causes of CFS are

not known. The Management of Chronic Fatigue

Syndrome: A Statement for the Advisory Board of

the American Association for Chronic Fatigue

Syndrome (AACFS),

http://www.aacfs.org/html/managment.htm,

12/14/99, Dkt. No. 460, see also, Olson v. Apfel,

D. Ill., 17 F. Supp. 2d 783, 790 (1998) (quoting

the commissioner's policy statement); v.

Eastman Kodak Co., 3d Cir., 113 F.3d 433, 443

(1997) ( " the disease. . . has no known etiology.) " n36

n35 Dr. Ziem herself has contributed to an

article regarding the overlap of CFS, FM, and

MCS. See Albert Donnay & Grace Ziem, Prevalence

and Overlap of Chronic Fatigue Syndrome and

Fibromyalgia Syndrome Among 100 New Patients with

Multiple Chemical Sensitivity Syndrome, Epidemiology, 72 (1999).

n36 Dr. Ziem states that the Center for Disease

Control has not mentioned volatile organic

chemicals as a proven cause for Chronic Fatigue

syndrome but insists that the CDC has not ruled

out what she is saying. Ziem Dep. at 733, Dkt. No. 464.

[**68]

Plaintiffs argue that:

Dr. Ziem also comes to her causation opinion

based upon the symptoms of others at the

building, ... the temporality of the development

of the three illnesses in all three plaintiffs,

the plaintiffs' medical records and her exams ...

Plaintiffs' low-level exposures were not for a

matter of days, rather each of the plaintiffs

herein allege that their exposure was no less

than two years, i.e. Ms. Miner feels that her

adverse exposure starting in 1991-1994 and Mr.

Muttart and Mrs. Brennan never left employment of

the building between 1988 and 1995, a total of

eight years of exposure. This exposure was a

cause of their development of Fibromyalgia and

Chronic Fatigue Syndrome between 1993 and 1995.

Therefore, plaintiffs urge, that although

specific toxins cannot be noted, the long-term

exposure at a building know to have a

contaminated HVAC system and inadequate IAQ

supports the causation analysis. In addition, the

plaintiffs did not have these illnesses prior to

working at the building. The chronic fatigue

syndrome and Fibromyalgia became diagnosable only

during their employment. This is sufficient under

the authorities cited for Dr. Ziem's opinions

[**69] that the building was a causal factor in

the development of these illnesses to be admitted

as reliable and fitting the facts

Plaintiffs' Ans. Br., Dkt. No. 500, 86-87

(emphasis supplied). Depending on the

circumstances, a temporal relationship between

exposure to a substance and the onset of a

disease can provide compelling evidence of

causation. Westberry v. Gislaved Gummi AB, 4th

Cir., 178 F.3d 257, 265 (1999). Such a temporal

relationship, however, will often be only one

factor for the overall determination of whether

an [*854] expert has " good grounds " for his or

her conclusion. Heller, 167 F.3d at 154. How

much weight it provides for the overall

determination of whether the expert has " good

grounds " will differ depending on the strength of

the temporal relationship. Id. There may be

instances where a temporal connection between

exposure to a given chemical and subsequent

injury is so compelling as to dispense with the

need for reliance on standard methods of

toxicology. Cavallo v. Star Enterprise, D.Va.,

892 F. Supp. 756, 774 (1995), aff'd in pertinant

part, 4th Cir., 100 F.3d 1150 (1996).

While the Court [**70] can in a given situation

accept a temporal association, in this instance,

Dr. Ziem's report lacks the necessary scientific

and intellectual rigor to give an opinion that

the Plaintiffs' CFS was caused by this building.

Dr. Ziem summarizes that " there is no evidence

that any of these patients had disabling

illnesses prior to their work at the Discover

Card Building. None of them had frequent of

disabling respiratory symptoms, none of them had

body aching on a chronic basis, [and] none of

them had chronic fatigue. " Ziem, May 25, 1998

Report, Dkt. No. 455. She appears to solely

relate the Plaintiffs' problems to dust, mold,

moisture, and volatile organic compounds in the

building without sufficiently excluding other

possible causes. Dr. Ziem cannot identify a

causative agent that triggered the syndrome.

Additionally, Dr. Ziem does not adequately

explain if Mr. Muttart's or Ms. Miner's smoking

had any effect on their conditions. Nor does Dr.

Ziem exclude other documented physical illnesses

as a possible causal factor in all three

Plaintiffs' syndromes. Other causative factors,

including, but not limited to, obesity, smoking,

depression, medications taken (and the side

effects of the [**71] medications), alcohol

consumption, and other documented illnesses are

not accounted for in Dr. Ziem's conclusion that

the Discover Card building caused the Plaintiffs'

illnesses. n37 The fatal flaw in Dr. Ziem's

temporal association with the building is that

she refused to adequately consider, and

eliminate, other possible causes of the

Plaintiffs' illnesses through a definitive

scientific process. The law is not an arena to

test scientific theory. See Rosen, 78 F.3d at

319. Here, it is clear that there is no known

cause of CFS and there are too many analytical

gaps in Dr. Ziem's analysis to let her testify

before the jury and say that the building caused

Plaintiffs' illnesses. Therefore, because there

is no known cause of CFS and Dr. Ziem has not

provided a consistent diagnostic or scientific

methodology to exclude other possible causes of

the illness in her temporal analysis, her testimony as to CFS must be excluded.

n37 The Court does not mean to imply that an

expert must account for every remote contingency,

but the expert must account for flaws in his or

her causation analysis through a valid scientific process.

[**72]

4. Fibromyalgia

FM is associated with chronic pain and

dysregulation of neuroendocrine function and of

sleep. Stanley R. Pillemer et al., The

Neuroscience and Endocrinology of Fibromyalgia,

Vol. 40, No. 11, Arthritis & Rheumatism 1928

(1997), Dkt. No. 504, Ex. 70, Article 59. n38 One

Court has defined FM as a type of muscular

soft-tissue rheumatism that principally affects

muscles and their attachment to bones, but which

is also commonly accompanied by fatigue, sleep

disturbances, changes in [*855] mood or

thinking, anxiety or depression. v. UNUM

Life Ins. Co., D.S.C., 40 F. Supp. 2d 747, 751

(1999). Courts, as well as the medical community,

recognize that FM is a diagnosable condition. Id.

See also Aff. of Roca, Dkt. No. 526, Ex. 4.

n38 Please note that the article number given is

simply the Court's best approximation of where

the article is located because the articles

provided in Dkt. No. 504 are not individually

numbered and the articles provided at the end of

the packet, including the Pillemer article, are not listed in the bibliography.

[**73]

The question naturally becomes whether or not

there was a methodological defect in Dr. Ziem's

diagnosis of FM in these three Plaintiffs which

would render her diagnosis unreliable. The

Defendants' principal argument is that there is

no discernable link between the Discover Card

building and the Plaintiffs contracting FM

because there is no known case of FM.

Some authors, including Dr. Ziem, have argued

that there is an overlap between FM, MCS, and

CFS. See A. Donnay & G. Ziem, Prevalence and

Overlap of Chronic Fatigue Syndrome and

Fibromyalgia Syndrome Among 100 New Patients with

Multiple Chemical Sensitivity Syndrome, 5 Journal

of Chronic Fatigue Syndrome No. 3/4, 1999, at

71-80 Plaintiffs' Ans. Br. Amended App., Dkt. No.

526, Ex. 18. But even with some medical

literature on the subject, there appears to be a

consensus that there is no known cause of FM. The

Physical Medicine Research Foundation, The

Fibromyalgia Syndrome: A Consensus Report on

Fibromyalgia and Disability, Journal of

Rheumatology 1996 23:3, Dkt. No. 461, Ex. P

(illustrating that data regarding the causality

of FM are largely absent); National Institute of

Arthritis and Musculoskeletal and Skin Diseases,

[**74] Questions and Answers About Fibromyalgia,

http://www.nih.gov/niams/healthinfo/fibrofs.htm,

Dkt. No. 461, Ex. N ( " the cause of fibromyalgia

is unknown " ). Dr. Howarth, Plaintiffs' expert,

testified that medical science does not know what

causes FM. See Howarth Dep. at 231, Dkt No. 462,

see also Kaye Dep. at 215, Dkt. No. 463.

Similarly, the Fifth Circuit has recently noted

that " experts in the field conclude that the

ultimate cause of fibromyalgia cannot be known

and only an educated guess can be made based on

the patient's history. " Black v. Food Lion Inc.,

5th Cir., 171 F.3d 308, 313 (1999).

Here, Dr. Ziem opines that the Discover Card

building was the cause of Plaintiffs' FM. Dr.

Ziem's ultimate opinion that the Discover Card

building caused the Plaintiffs' injuries suffers

from the same weakness as her testimony that the

building caused the Plaintiffs' CFS. That is, she

does not follow a logical, scientific, and

deductive process to exclude other possible

causative [HN13] factors. " It is well settled

that a causation opinion that is based solely on

a temporal relationship is not derived from the

scientific method and is therefore insufficient

to satisfy the [**75] requirements of [Rule]

702. " Schmaltz v. Norfolk & Western Railway Co.,

D. Ill., 878 F. Supp. 1119, 1123 (1995). Because

Dr. Ziem is attempting to make a temporal

connection between the Plaintiffs' illnesses and

the building without a specific toxin identified

(which admittedly would be difficult to find in

this particular factual circumstance), she must

demonstrate a deductive scientific process to

support her conclusion. As discussed earlier as

to Dr. Ziem's diagnosis of CFS, this methodology

is lacking as to Dr. Ziem's diagnosis of FM.

Again, the Court has been presented with

unscientific speculation from a genuine

scientist. Rosen, 78 F.3d at 318. This sort of

speculative testimony in stating that the

environmental material in the building was a

causal factor in the Plaintiffs' development of

FM, without the sufficient exclusion of other

causative factors, is precisely the type of

testimony that should be kept from the jury under the principles of Daubert.

5. Reactive Airway Dysfunction Syndrome

The parties agree in this case that RADS is a

valid scientific diagnosis, and [*856] there

are known causes for the illness. The Defendants

contend [**76] that the diagnosis of RADS should

be dismissed because Dr. Ziem's diagnosis of RADS

in the Plaintiffs is not relevant nor reliable.

The Plaintiffs argue that Dr. Ziem's diagnosis of

RADS has sufficient relevance and reliability to

be heard by the fact-finder. Plaintiffs argue:

Dr. Ziem diagnosis [sic] RADS in each patient.

(See Facts, P. 17). Dr. Ziem basis [sic] this

diagnosis on the long low-level exposure to

irritants in the building as well as the

literature concerning RADS. Dr. Ziem basis this

diagnosis on the medical records, her examination

and the long term exposure at the 12 Read's Way

building to poor IAQ. Plaintiff urges this is

sufficient to discuss the Airway Dysfunction of

the plaintiffs (found by all examining

physicians) even though defendant's reference has

separated RADS as applying to only those

individuals who have had a single, large exposure.

Plaintiffs Ans. Br. at 87, Dkt. No. 500. n39

n39 At page 16 of their answering brief,

Plaintiffs cite to Exhibits 38 and 70 to support

Dr. Ziem's contention that long low level

exposure brings the same physical illness and

symptoms. The inherent problem with Plaintiffs'

citation is that Exhibits 38 and 70 also makeup

Volumes II and IV of the appendix. The Court had

to search diligently for support for the various

propositions offered by the Plaintiffs. The Court

would be most thankful if in the future clear

pinpoint citations would be given for the

arguments made. Certainly, this method of

presentation in effect forces the Court to cull

through hundreds of pages to find support for its position.

[**77]

The Court is inclined to let Dr. Ziem testify as

to her RADS diagnosis because it is a known

syndrome that has a known cause. RADS appears to

be triggered by the sudden onset of asthma

following a high-level irritant, gas, vapor, or

fume exposure. Stuart M. et al., The

Spectrum of Irritant-Induced Asthma, 113

Chest/1/Jan. 1998, 42 (1998) (concluding that

preexisting allergic/atopy and/or preexisting

asthma were significant contributors to the

pathogenesis of not-so-sudden, irritant-induced

asthma). Dr. Ziem opines that the low level

irritants in the building, including the molds

and VOC's caused the RADS. From a lay person's

point of view, it appears that the RADS diagnosed

by Dr. Ziem more closely fits the characteristics

of Reactive Airway Initiated Dysfunction Syndrome

or RAIDS. RAIDS is defined as:

a condition, presumably in persons with an

allergic or atopic diathesis, whereby asthma

symptoms appear to be initiated by a low- or

moderate-level exposure to an irritant substance

or material in the workplace or environment, and

is characterized clinically by the development of

asthma symptoms and physiologically by the

findings of an atopic status and the presence

[**78] of non-specific airway hyperresponsiveness.

M. , Reactive Airway Syndromes,

Journal of Occupational Health and Medicine 215

(1992). For RAIDS, the irritant is generally a

gas or vapor, but, on occasion, may be in the

form of a fume or dust. Id. Mr. , according

to the Defendants, was the first to describe RADS

in the scientific literature. Defendants' Omnibus

Br. at 56, Dkt. No. 451. While Defendants claim

that any diagnosis of RADS must have a single

high level of exposure, there is at least some

indication that illness caused by low-level

exposure to toxins can sometimes be characterized

as RADS. Some publications have modified the

diagnostic criteria for RADS to include asthma

after exposures lasting greater than 24 hours. S.

, Y. Hammad, I. s, J.

Giovibco-Barbas, J. , The Spectrum of

Irritant Induced Asthma, Chest 113, 42 (Jan.

1998), Dkt. No. 460 [*857] (citing in part

Kipen, H.M., Blume R., Hutt, D. Asthma Experience

in an Occupational Environmental Medicine Clinic:

Low-Dose Reactive Airways Dysfunction Syndrome,

Journal of Occupational Medicine 1994;

36:1133-37). While the Defendants argue

vigorously that the diagnostic [**79] criteria

for RADS have not been met, there is at least

some indication that a valid diagnosis of RADS

can be made based on low-level exposures. [HN14]

It is not the duty of the Trial Judge to decide

which of several competing theories has the best

performance. Ruis-Troche, 161 F.3d at 79. Here,

any discrepancy as to the diagnostic criteria for

RADS is best cured by cross-examination. Dr.

Ziem's opinion does not exist in total isolation.

The Defendants argue with some force that Dr.

Ziem's diagnosis of RADS does not show that the

Discover Card building caused this illness. But,

in the article provided by the Defendants,

there is some mention that dusts can cause

Reactive Airway Dysfunction. S. , Chest

113, 42 (Jan. 1998), Dkt. No. 460, (stating that

RAIDS can on occasion be caused by dust). By a

bare minimum, Plaintiffs have made a sufficient

showing that the air quality in the building

could have caused RADS. This is an instance where

the Court can sort out any discrepancies in the

testimony at trial, if necessary. Even for legal

purposes of admissibility, there has to be a

first time for a causal opinion. The connection

here seems close enough and other possible

[**80] causes can be tested in a trial setting.

Any challenge as to the causation of RADS appears

at this point to go to the weight and not the

admissibility of the evidence. The Court will

allow the scientifically valid diagnosis of RADS

to be heard, and will allow Dr. Ziem to testify

to her opinion that the Plaintiffs' RADS was

caused by the Discover Card building.

6. Toxic Encephalopathy

The parties in this suit do not dispute that TE

is a valid, scientifically diagnosable condition.

Defendants contend that Dr. Ziem's diagnosis and

theories of causation on TB do not meet the

threshold requirements of relevance and reliability to be heard by the jury.

Chronic TB is defined as an acquired mental

impairment, affecting intellect, memory,

emotions, and personality. WHO & Nordic Council

of Ministers, Chronic Effects of Organic Solvents

on the Central Nervous System and Diagnostic

Criteria, 8 (1985). Chronic TB involves subtle

but cumulative brain damage. Duehring,

Toxic Encephalopathy vs. Alzheimer's, Our Toxic

Times, Vol. 5, No. 8, Dkt. No. 504, Ex. 24. Dr.

Ziem defines TE as a long-lasting structural

brain dysfunction secondary to an exposure to a

chemical or mixture of [**81] chemicals

interfering with brain function. Ziem Report at 24, Dkt. No. 455.

Defendants claim that Dr. Ziem's diagnosis of TB

is invalid because she did not know of the

diagnostic criteria for TB. Plaintiffs

acknowledge in their brief that Dr. Ziem knew of

no specific diagnostic criteria for " brain

injuries manifested by cognitive defects, " yet

" urge that Dr. Ziem can provide an opinion that

cognitive defects in each Plaintiff are organic

and caused by the chemicals present at the

Discover Card Building. " Plaintiffs' Ans. Br. at 17, 90, Dkt. No. 500. n40

n40 The Court notes that the Plaintiffs' Exhibits

in 37 and 39 are not the same exhibits as listed

in the Table of Contents of Vol. IV of their

answering brief. Furthermore, the Plaintiffs have

not provided the Court with specific page

references for their assertions. Additionally, an

article listed in the Plaintiffs' bibliography

which looks like it would help their cause

entitled " Chronic Toxic Encephalopathies

Apparently Related to Toxic Exposure " (No. 38) is

not included in Dkt. No. 504 where it is supposed to be.

[**82] [*858]

The Court is not inclined to get involved with

the details of whether Dr. Ziem's diagnosis of TB

followed the appropriate diagnostic criteria. It

appears that any defect in her diagnostic method

is best cured by cross-examination. It is the

ultimate opinion of Dr. Ziem that the volatile

organic compounds, dusts, and molds in the

building caused the Plaintiffs' TE. Defendants

argue that there is no peer reviewed article that

supports Dr. Ziem's causation theory.

Feldman, however, notes that organic solvents can

cause Encephalopathy, and also states that

because most organic solvents contain mixtures of

ingredients, it is difficult to attribute

specific behavioral changes to a specific

substance. G. Feldman, Neurotoxic

Disorders, 179, 186-87 (1988), Dkt. No. 460, Ex.

F. Feldman admits that it may be difficult to

identify a specific causative agent in the

workplace and states chronic solvent exposure can

be associated with cognitive changes in an

individual. Id. at 188. This lends some credence

to Dr. Ziem's theory that chemical toxins adhere

to dust particles and are carried deep into the

lungs. Ziem Report at 26, Dkt. No. 455. Again, by

a bare showing, the Plaintiffs [**83] have

demonstrated that the methodology employed by Dr.

Ziem in making the medically valid diagnosis of

TB meets the threshold of relevance and reliability as required by Daubert.

7. Dr. Ziem as a Treating Physician

Defendants also seek to exclude any testimony by

Dr. Ziem as a treating physician. Plaintiffs

argue that Dr. Ziem is a consulting treating

physician. Plaintiffs claim that none of the

individuals were sent to Dr. Ziem at the request

of Plaintiffs' counsel. n41 Plaintiffs go on to state:

It is clear that during their treatment and

during the litigation, these individuals were

sent to Dr. Ziem, by their treating physicians,

to aid in their treatment with respect to their

multiple illnesses. ... Although Dr. Ziem has

only seen these patients on occasion as a

consulting treating physician, she testified that

she has talked to the treating physicians of the

plaintiffs... She prescribed various testing to

determine the cause of the critical condition of

Mrs. Brennan ... Thus, plaintiffs submit that Dr.

Ziem is a treating, consulting physician.

Plaintiffs' Ans. Br. at 82, Dkt. No. 500. Since

Dr. Ziem is going to be permitted to testify to

some extent [**84] as an expert, this objection,

designed to bar the witness entirely, seems moot.

We do not usually worry about qualifying people

as non-expert, treating physicians. Indeed, this

Judge has questioned whether there is such an

animal, insisting on occasion that all treating

physicians be listed as experts. But obviously

the Plaintiffs have got to be careful in

questioning Dr. Ziem in any capacity, and, since

the question has been raised, perhaps it will be

useful for the Court to set forth its understanding of the facts.

n41 The record does not reflect that all of the

treating physicians sent their patients

independently to Dr. Ziem. In fact, Dr. Michell,

in his October 13, 1999 deposition, testified

that he had never referred any patients to Dr.

Ziem and, before this case, he was not familiar

with Dr. Ziem. Michell Dep. at 80, Dkt. No. 463.

Dr. Ziem only saw Miner one time and had

only one subsequent phone call with her after her

initial visit. Dr. Ziem had not received the

results of the tests that she [**85] had ordered

for Ms. Minner, almost a year and a half after

the tests were ordered, except for a cholesterol

test. Ziem Dep. at 892, Dkt. No. 464. In fact,

Dr. Ziem stated that she never spoke

with [*859] Ms. Miner's treating physicians.

Id. at 879. It appears that there was only one

letter written to Dr. Michell concerning Ms.

Miner following Dr. Ziem's exam. There are many

gaps in Dr. Ziem's knowledge about Ms. Minner's

medical history. Id. at 879-95. This is not

typical of a bona fide treating physician.

Dr. Ziem saw Mr. Muttart on two occasions, the

last occasion being August 19, 1998. Id. at 877.

As of September 16, 1999, Dr. Ziem admitted that

she had not recently treated Mr. Muttart. Id at

898. Dr. Ziem has had no contact with Mr.

Muttart's treating physicians in over a year. Id.

at 895. Similarly, Dr. Ziem has not seen Mrs.

Brennan since December 10, 1997, which was the

date of her initial visit. Id. at 876. Dr. Ziem

did, however, have several calls to " coordinate

care " after Mrs. Brennan's hospitalization. Id.

at 874. Dr. Ziem wrote to Dr. Messinger with a

summary of her findings as to Mrs. Brennan but

never received any communication from Dr.

Messinger. [**86] Id. at 1000. Additionally,

Dr. Ziem never spoke to Dr. Seltzer (Mrs.

Brennan's allergist) regarding Mrs. Brennan's

allergies. Id. at 1001. Such limited and sporadic

contact with patients who claim to be severely

sick certainly does not lead to an inference that

Dr. Ziem was intimately involved as a treating physician.

Plaintiffs' characterization of Dr. Ziem as a

treating physician seems to have been an

alternative attempt to qualify her as an expert.

This brings to mind the maxim quando aliquid

prohibetur ex directo, prohibetur et per

obliquum, which means when anything is prohibited

directly, it is also prohibited indirectly.

Simply, because some of Dr. Ziem's proposed

testimony lacks the required relevance and

reliability necessary to be presented to the jury

as expert testimony, she cannot get in the back

door and give her unsubstantiated expert

testimony as a treating physician. Moreover, care

should be taken not to overstate Dr. Ziem's

limited contact with the Plaintiffs.

In summary, the Court will allow Dr. Ziem to

testify as to her diagnoses and theories of

causation on RADS and TE. She will not, however,

be permitted to testify as to her diagnoses of

SBS and [**87] MCS because they are not valid

medical diagnoses. She also will not be able to

give her expert medical opinion that the

Plaintiffs' FM and CFS were caused by the

building because these conditions have no known

etiology and Dr. Ziem has not followed a

sufficient scientific methodology in her opinion

of causation. Thus, Dr. Ziem can only testify as

an expert on limited diagnoses and care must also

be taken not to overstate her status as a treating physician.

B. Dr. Marilyn D. Howarth

Defendants have also filed a Motion in Limine to

exclude the expert testimony of Dr. Howarth. The

Defendants' Motion seeks to exclude any

statements by Dr. Howarth as they relate to the

cause or causes of the Plaintiffs' FM and CFS.

The Defendants also seek to preclude any

testimony by Dr. Howarth concerning the medical

validity of a diagnosis of MCS. Finally, the

Defendants seek to exclude Dr. Howarth's

testimony that the Discover Card building was the

causal factor in the Plaintiffs developing

migraines, occupational asthma, reactive

depression/adjustment disorder, hypertension,

chronic sinusitis/sinus infections, allergic

sensations, allergic rhinitis, and bowel disturbance.

Dr. Howarth is [**88] the director of the

Occupational and Environmental Consultative

Services for the University of Pennsylvania

Health System at Radnor. Dr. Howarth is a

graduate of Swarthmore College and received her

medical degree in 1986 [*860] from the

Wood Medical School. Howarth Curriculum

Vitae, Dkt. No. 526, Ex. 1. She has issued expert

reports in this case on all three Plaintiffs,

which are attached in the record. See, Dkt. No.

454. Certainly, Dr. Howath possesses the

educational and employment experience to testify

in this case. Her opinion in this case, must be

rejected in part because some of her medical

inquiries are not based on a sound, scientific

foundation. For instance, she testified at her

deposition that MCS is a scientifically valid

diagnosis. She, however, did not diagnose any of

the Plaintiffs with MCS. This Court has already

determined, largely on the lack of general

acceptance, that MCS is not a scientifically

valid diagnosis and any attempt by Dr. Howarth to

discuss the validity of MCS must be excluded from the jury.

Dr. Howarth did diagnose Brennan and

Miner with CFS. She also diagnosed Ms. Minner

with FM. The Defendants seek to preclude Dr.

Howarth's [**89] testimony solely as to

causation, not as to her diagnosis of these

conditions. Dr. Howarth indicated at her

deposition that there is no known cause of CFS or

FM. Howarth Dep. at 229-30, Dkt. No. 462. She

also stated that she could not point to any

specific microbiological agent in the Discover

Card building that caused CFS or FM in any of the

three Plaintiffs. Id. at 415. ( " So am I correct

that you cannot point to any specific

microbiological agent in the Discover Card

building as the cause or one of the causes of

chronic fatigue syndrome or fibromyalgia in any

of these three patients. A: True " ).

As stated earlier in this Opinion, there is no

known cause of FM or CFS. Without a cognizable or

scientific link between her diagnosis of FM and

CFS and the Discover Card building, Dr. Howarth

must exhibit a valid scientific methodology in

developing her opinion that the Discover Card

building caused the illnesses. But Dr. Howarth's

conclusion that the building somehow caused the

Plaintiffs' FM and CFS has significant gaps. She

calls the conditions in the building " egregious "

but, like Dr. Ziem, does not attempt to show why

other factors in the patients' medical histories

did not contribute [**90] to their illnesses.

Indeed, she admits: " I am not able based on the

record review alone to exclude other causes as

possibly contributing to [Mr. Muttart's] symptoms

as well. " Howarth, June 4, 1998 Report, Dkt. No.

454. She could not rule out that various other

health problems of the Plaintiffs were

contributing factors to their illnesses. Howarth

Dep. at 501-506, Dkt. No. 462. All and all, it

appears that the fatal flaw in Dr. Howarth's

temporal analysis is that she did not follow a

careful scientific methodology to exclude other

possible causes of the Plaintiffs' CFS and FM,

two conditions which have no known cause.

Therefore, she cannot testify that the building

caused the CFS or the FM. An expert opinion

cannot be based on the inherent uncertainty of

the subject matter or simply on the ipse dixit of

the expert. Pfizer, C.A. No. 97C-04-037. So, to

the extent that Dr. Howarth is being offered as

an expert with respect to causation of FM and

CFS, her testimony must be excluded.

Defendants also attempt to further limit the

testimony of " any opinion by Dr. Howarth as to

the cause of migraines, occupational asthma,

reactive depression/adjustment disorder,

hypertension, chronic [**91] sinusitis/sinus

infections, allergic sensations, allergic

rhinitis, and bowel disturbance in the

Plaintiffs " because they argue there is no

foundation as to causation and therefore Dr.

Howath's testimony must be excluded as a matter

of law because it is " unreliable and irrelevant. "

These conditions, however, have known causes, in

contrast to CFS and FM. The symptoms, however,

bear at least some weight on the [*861] RADS

and TE diagnoses. While it is true that Dr.

Howarth is not aware of a study that specifically

demonstrates that total hydrocarbons at 2.4 parts

per million or below is the cause of these

deleterious health effects in people, her opinion

that the Plaintiffs suffered these effects should

be heard. Id. at 530. The expert opinion does not

have to be determined to be the best, rather, it

only needs to meet the threshold requirements of

relevance and reliability. Therefore, Defendants'

Motion in Limine as to Dr. Howarth's opinions

about causation of the Plaintiffs' various

illnesses must be DENIED in part and GRANTED in part.

C. Dr. W. Messinger

Defendants seek to exclude the testimony of Dr.

Messinger. Defendants argue that Dr. Messinger's

diagnosis of SBS is [**92] unreliable as a

matter of law. Defendants also claim that any

attempt to link Dr. Messinger's diagnoses of FM,

CFS, and SBS to the Discover Card building is unreliable.

Dr. Messinger has been the treating physician of

Mrs. Brennan since 1994. Plaintiffs argue that

Dr. Messinger's diagnoses of FM, CFS, SBS, and

chronic sinusitis are admissible. As previously

discussed, there is no universally accepted

clinical definition of SBS and no adequate theory

for its occurrence. Redlich, et al.,

Sick-building Syndrome, Dkt. No. 504. And, as

discussed in the context of the Motion in Limine

to exclude the expert testimony of Dr. Ziem, SBS

is not a valid medical diagnosis. Therefore, Dr.

Messinger cannot present his diagnosis of SBS to the jury.

The Court must then evaluate whether Dr.

Messinger has followed an appropriate scientific

methodology to determine that the Discover Card

building caused FM and CFS in Mrs. Brennan. Here

again, that opinion does not appear to be based

on appropriate medical methodology because it

lacks a credible, scientific foundation. An

excerpt provided by the Plaintiffs from Dr.

Messinger's deposition testimony shows the flaws

in Dr. Messenger's causation analysis. [**93]

Q. What fumes do you understand Mrs. Brennan was

breathing from the heating and air conditioning system at the building?

A. I think I said fumes and dust. So it would be

whatever was in the duct system, heating and air conditioning of the building.

Q. What were those things?

A. Probably an accumulation of material over a

period of months and years if they had not been properly maintained...

THE WITNESS: The duct system should be maintained

and cleaned on a regular basis. To my

understanding, that was not done. There are also

fumes from carpets and cleaning materials.

Q: Are you suggesting that the HVAC system, to

the extent that it wasn't maintained properly,

gave off dust that contained something to which

Mrs. Brennan was exposed that caused the conditions that you have described?

A. That was part of it.

Q. What was in the dust to which she was exposed that caused these conditions?

A. I can't give you specifics.

Q. And why is that?

A. Because I don't know.

Messinger Dep. at 20, Dkt. No. 526.

Dr. Messinger admits that he does not know what

was in the building that caused these illnesses.

He also admits that [**94] " there is no

demonstrable, reproducible cause of fibromyalgia.

There is all kinds [*862] of suppositions. None

of them have really stood the test of time. "

Messinger Dep. at 124, Dkt. No. 463. n42 Thus,

Dr. Messinger tacitly admits there is no

cognizable link between his diagnosis of FM and

the alleged conditions that caused the illness.

It is also important to note that it is Dr.

Messinger's opinion that the CFS was caused by

exposure to fumes and/or dust at the Discover

Card building, yet CFS has no known

etiology. , 113 F.3d at 443. If the

disease has no known etiology or cause, it is

incumbent on the Plaintiffs to identify some

chemical component or illustrate some

scientifically viable methodology to show that

the conditions in the building that could have

caused the disease. That was not done here.

Therefore, Dr. Messinger's diagnoses and opinions

on causation as to FM and CFS must be excluded.

n42 Another one of the Plaintiffs' experts. Dr.

Seltzer, admits that there is no known cause of

FM. Seltzer Dep. at 93, Dkt. No. 521.

[**95]

Furthermore, Dr. Messinger has relied on Dr.

Ziem's report to bolster his causation opinion on

FM and CFS and Dr. Ziem's causation analysis has

been excluded as a matter of law as to these

opinions. Thus, Plaintiffs have not carried their

burden of proof by a preponderance to demonstrate

that the causation opinions of Dr. Messinger are

sufficiently reliable to be heard by the jury.

Dr. Messinger's opinions as to the Discover Card

building being the cause of the Ms. Brennan's CFS

and FM, two conditions which have no known

etiology, are unsupported by sound scientific

theory or methodology or by the identification of

specific causative agents. The Court will,

however, allow Dr. Messinger to testify as to

what he feels is the cause of the chronic

sinusitis in the Plaintiffs, a disease which has

known causes. Therefore, the Defendants' Motion

in Limine as to Dr. Messinger is GRANTED in part and DENIED in part.

D. Dr. Leonard H. Seltzer

Dr. Seltzer has treated all three Plaintiffs in

this case. Specifically in their Motions in

Limine, Defendants argue that Dr. Seltzer's

testimony on SBS and RADS should be excluded,

both from a diagnostic and a causation

perspective. The Defendants [**96] further argue

that Dr. Seltzer is not qualified to testify

concerning his diagnosis and causational links as

to CFS. Finally, the Defendants seek to exclude

any testimony of Dr. Seltzer that states that the

Discover Card building somehow caused upper

respiratory allergy, rhinitis, bronchitis,

sluggish immune system, sinus infections or congestion, the flu, or depression.

In Plaintiffs' Answering Brief, the Plaintiffs

contend that they are not relying on Dr. Seltzer

for a diagnosis of FM or CFS as they relate to

Mrs. Brennan. Rather, Plaintiffs state that they

plan to use Dr. Seltzer to testify that there is

a temporal relationship between sinusitis and

allergy with respect to individuals who work at

the building. Thus, Plaintiffs argue that they

" do not oppose most of the motions with respect

to Dr. Seltzer, as they relate to Mrs. Brennan. "

Plaintiffs' Ans. Br. at 71, Dkt. No. 500.

As to Mr. Muttart, Plaintiffs state that Dr.

Seltzer is not being put forth as a causation

expert. Plaintiffs want to use Dr. Seltzer with

respect to bad air quality, which he relates to

SBS As to Ms. Minner, the Plaintiffs seek to

present Dr. Seltzer's testimony not to opine on

specific causation, but [**97] rather to testify

to the diseases he found that Ms. Miner had in 1994.

Plaintiffs' explanation of how they plan to use

Dr. Seltzer at trial is, at best, cryptic. It

appears that Plaintiffs have conceded that Dr.

Seltzer is not qualified [*863] to testify

concerning causation of SBS and CFS. Dr. Seltzer

candidly admits that he is not an expert on " sick

buildings " and does not hold himself out to be an

expert. Seltzer Dep. at 81, Dkt. No. 464. n43

Therefore, he cannot give a causation opinion as

to SBS because he admits that there are flaws in

his causation analysis. This Court has held that

SBS is not a valid medical diagnosis.

Additionally, Dr. Seltzer cannot testify as to

CFS because there is no sufficient causal

connection established between the building and the patients.

n43 Plaintiffs state uncategorically that they do

not list Dr. Seltzer as an expert on SBS. Plaintiffs' Ans. Br., 70-71.

Dr. Seltzer opined as to Mr. Muttart that he

suffered from RADS when he examined him and the

RADS was caused by mold, bad [**98] air, a

virus, or continued smoking. While the Defendants

seek to exclude his RADS diagnosis, nothing

provided by the Defendants precludes Dr. Seltzer

from testifying as to his diagnosis of RADS or

any of the secondary diagnosis of upper

respiratory allergy, rhinitis, bronchitis,

sluggish immune system, sinus infections or

congestion, the flu, or depression. Any problems

with his diagnoses or diagnostic criteria are

better left to the trier of fact. Dr. Seltzer

should be allowed to testify as to the valid

diagnoses that he made as to all three of these

Plaintiffs, but his testimony should be limited

to his diagnoses. Dr. Seltzer, however, cannot be

used as a causation expert. n44 Therefore,

Defendants' Motion in Limine to limit the

testimony of Dr. Selzer is GRANTED in part and DENIED in part.

n44 It does not appear that Plaintiffs are

offering Dr. Seltzer as a causation expert in any

way. Therefore, the Motion is Limine should be

GRANTED and any opinion as to causation offered

by Dr. Seltzer will be excluded.

[**99]

E. Dr. Theodore W. Michell

Dr. Michell is the treating physician for both

Ms. Minner and Mr. Muttart. He has diagnosed or

adopted the diagnosis of other treating

physicians of SBS, FM, CFS, MCS n45 and TB. The

Defendants ask this Court to exclude the expert

testimony of Dr. Michell because he is not

qualified to testify as to his diagnoses of SBS, FM and CFS. n46

n45 MCS and SBS are not valid medical diagnoses for purposes of this case.

n46 In Dr. Michell's deposition, he appears to

adopt the diagnoses of TE and MCS made by Dr.

Ziem as to Ms. Minner. See Michell Dep. at 116-118, Dkt. No. 463.

To begin with, as to the FM and the CFS, the

Court has determined that there are no known

causes. Black, 171 F.3d at 313 (FM); ,

113 F.3d at 443 (CFS). Therefore, any testimony

relating to the Discover Card building causing FM

or CFS must be excluded and Dr. Michell does not

have the qualifications to testify as to

causation, nor has he performed a sufficient

[**100] scientific inquiry to exclude other

causes of the illnesses. Plaintiffs tacitly agree

that there is no causative agent identified in

Dr. Michell's testimony and report which would

link the illnesses of either Ms. Miner or Mr.

Muttart to the building because Plaintiffs state

they are not offering Dr. Michell with respect to

causation on FM or CFS. Therefore, the Motion in

Limine is GRANTED as to all of Dr. Michell's

expert testimony on MCS, SBS, FM, and CFS. n47

n47 This ruling as it relates to Dr. Michell

probably is not of great consequence because Dr.

Michell defers to Dr. Roca's diagnosis as it

relates to FM and to the consultant specialist as

it related to the diagnosis of CFS. Michell Dep. at 13, 57, Dkt. No. 463.

F. Dr. Neil S. Kaye

The Defendants also challenge the admissibility

of the testimony of Dr. Kaye as it relates to his

medical diagnoses of [*864] SBS, TE and CFS.

n48 Defendants also claim that Dr. Kaye's

causation analysis is flawed as a matter of law

as he relates the Plaintiffs' CFS,

FM, [**101] and SBS to the conditions at the Discover Card building.

n48 Indeed, Dr. Kaye, like the other doctors, is

unaware of a definition for SBS, or a causal

agent for SBS, and is unaware of any published

criteria for diagnosing SBS. Kaye Dep. at 760-61, Dkt. No. 463.

Dr. Kaye is a board certified psychiatrist in

private practice with an emphasis on adult

forensic psychopharmacology, neuropsychiatry,

geriatric psychiatry, drug research, and clinical

testing. Curriculum Vitae of Dr. Kaye, Dkt. No.

526, Ex. 1. Dr. Kaye, as a self-described

neuropsychologist, n49 is not board certified in

internal medicine, toxicology, neurology,

occupational, or environmental medicine. In fact,

he is a board certified psychiatrist. While his

specialty does not preclude physical diagnoses,

it certainly weighs against his credibility when

dealing with fringe areas of other specialties.

n49 Dr. Kaye testified that there is no board

certification in neuropsychiatry as yet, but

notes there will be such certification in the

not-so-distant future. Kaye Dep. at 397, Dkt. No. 463.

[**102]

As discussed at length earlier in this Opinion,

the diagnosis of SBS is not proper because there

is insufficient diagnostic criteria available to

make a diagnosis. Therefore, Dr. Kaye cannot

opine that any of the Plaintiffs have SBS, or

relate the Plaintiffs' alleged SBS symptoms to the Discover Card building.

Also, as discussed earlier in this Opinion, there

are no known causes of CFS or FM. Dr. Kaye,

similarly to the other experts, cannot identify a

causative agent in the Discover Card building to

which the Plaintiffs may have been exposed which

would have triggered their illnesses. Kaye Dep.

at 744-45, Dkt. No. 463. Dr. Kaye sets forth an

extensive review of the medical records of the

Plaintiffs in his report, but he does not attempt

to set forth a careful, scientific methodology

excluding other possible causes of the

Plaintiffs' CFS and FM. Furthermore, it appears

that this type of causation analysis by Dr. Kaye

in an attempt to link the Plaintiffs' FM or CFS

to the building would be outside his field of

expertise. Therefore, any diagnosis that attempts

to link the Plaintiffs' CFS or FM to the Discover

Card building is unreliable as a matter of law.

Simply, Dr. Kaye did not [**103] employ a

methodology sufficient to create a credible link

between the building conditions to make a

temporal connection to the Plaintiffs' FM and CFS.

Defendants also attempt to exclude Dr. Kaye's

diagnosis of TB in Mr. Muttart. It appears that

such a diagnosis by a board certified

psychiatrist is proper. Dr. Kaye, as a qualified

psychiatrist, certainly can give his findings

concerning neurocognitive deficit found in all

three Plaintiffs. The Defendants' claims that Dr.

Kaye did not follow appropriate diagnostic

criteria are best cured by cross-examination.

Therefore, the Motion in Limine to exclude the

testimony of Dr. Kaye is DENIED in part and GRANTED in part.

G. Dr. G. Ivins

Dr. Ivins is a neuropsychologist, who evaluated

all three Plaintiffs for neuropsychological

defects. Dr. Ivins diagnosed impairment in all

three Plaintiffs and related that impairment to

long-term exposure to the Discover Card building.

The Defendants argue that Dr. Ivins' diagnoses

are too speculative to be heard by the jury and

are unreliable as a matter of law. Defendants

admit that Dr. Ivins has subjected the Plaintiffs

to a battery of neuropsychological tests, but

argue that there are [**104] sufficient flaws in

his method of interpreting neuropsychological

tests. [*865] The Defendants further seek to

limit Dr. Ivins' causation opinions, arguing that

Dr. Ivins lacks the qualifications to testify as

to the cause of Plaintiffs' neuropsychological

conditions. The Defendants also argue that Dr.

Ivins' causation opinions are unreliable and irrelevant.

Dr. Ivins is certainly able, as a licensed

psychologist, to make a diagnosis of impairment

in the Plaintiffs. Dr. Ivins received his

Doctorate in 1974 from the University of Southern

Mississippi and is a member of various

neuropsychological organizations. It appears that

any problems with his diagnosis of impairment are

best cured by cross-examination and not by

exclusion by this Court from the outset. n50 The

Defendants admit that Dr. Ivins is qualified to

administer and score neuropsychological tests.

And, upon review of the documents submitted, the

Court must agree with the Plaintiffs that it

appears that the method of testing used was

proper, and that if the Defendants wish to

challenge Dr. Ivins' conclusions, that is an

issue of weight and not the admissibility of the

testimony. Dr. Ivins is testifying as to the

level of impairment [**105] in the Plaintiffs.

Therefore, the Defendants' Motion in Limine as it

relates to Dr. Ivins' diagnosis of impairment is DENIED.

n50 The Defendants assert that there are

significant flaws in Dr. Ivins' diagnosis because

he relies on his " gut feeling " and his " sixth

sense. " Defendants also assert that Dr. Ivins did

not have an accurate baseline for his

neuropsychological testing because he did not take an accurate background.

It appears, however, that beyond the diagnosis of

impairment, Dr. Ivins' views as to causation are

flawed. There is a general problem with the

extent to which a psychologist should be

permitted to testify as to medical cause. Dr.

Ivins cannot opine that the Discover Card

building caused the injuries because he offers

virtually no facts to support his theory that the

Plaintiffs suffered a toxic exposure in the

Discover Card building. He has no idea what

substance in the building allegedly caused the

impairment in the Plaintiffs. Ivins Dep. at

625-28, Defendants' Dep. Appendix, Dkt. No.

462. [**106] Dr. Ivins has no idea what may

have caused the defects nor how long the

Plaintiffs may have been exposed to the

materials. Id. When asked from what source he

obtained his information that Ms. Minner had a

prolonged exposure to chemicals at work, Dr.

Ivins responded that he got the information from

her former attorney. Id. at 591. Dr. Ivins does

not go through a detailed scientific method and

procedure to exclude other possible causes. Dr.

Ivins simply makes statements without having the

proper foundation to support his causation analysis.

Plaintiffs make a half-hearted attempt to state

that Dr. Ivins' determination of causation was

made by ruling out any other general brain

injuries. That testimony might normally be

admissible, but contrary to the Plaintiffs'

argument, Dr. Ivins' ultimate statements as to

cause are merely lay conclusions with, at best, a

limited factual basis. There is an insufficient

factual underpinning in Dr. Ivins' testimony to

support his causation analysis. Therefore, the

Motion in Limine as to Dr. Ivins' diagnosis of

impairment and his diagnostic techniques is

DENIED but the Motion is GRANTED as to Dr. Ivins'

opinion that unidentified chemicals in the

[**107] Discover Card building caused the cognitive deficit.

H. Dr. Neil Jurinski

Dr. Jurinski is a Certified Industrial Hygienist

who has been hired by the Plaintiffs to evaluate

the air quality reports of the Discover Card

building. Dr. Jurinski received his Ph.D. from

the University of Mississippi and is certified

as [*866] an Industrial Hygienist by the Board

of Industrial Hygiene. The Defendants contend

that Dr. Jurinski's testimony that third-floor

overcrowding caused poor ventilation is

unreliable because he admits the building

complied with ASHRAE standards. Defendants also

argue that Dr. Jurinski is unqualified to testify

about the health effects of indoor quality on the Plaintiffs.

It is not necessary that an expert report have an

undisputed foundation, it need only be based on

valid reasoning and reliable methodology.

Kannakeril, 128 F.3d at 806. The fact that the

Defendants do not agree with Dr. Jurinski's

opinion is of no consequence as to admissibility.

Dr. Jurinski opines generally that, based on

inadequate air quality, there appeared to have

been overcrowding of the building. Dr. Jurinski's

opinions meet the threshold requirements to be

heard by the jury. [**108] Certainly, Dr.

Jurinski is qualified to give his testimony about

the air quality components. Again, any alleged

shortcomings in his testimony are best cured by cross-examination.

It appears, however, that the Defendants are

concerned that Dr. Jurinski is attempting to

opine that the Discover Card building caused the

medical illnesses of the Plaintiffs. But, Dr.

Jurinski admits that he lacks the medical

training necessary to testify as to a medical

causation for the injuries. Jurinski Dep. at 106,

Dkt. No. 462. He recognizes that there have been

many contaminants identified as present in

buildings but he cannot identify a cause and

effect relationship between contaminants and any

specific health symptoms. Id. at 45. Therefore,

any attempt by the Plaintiffs to have Dr.

Jurinski make a medical link between the alleged

poor maintenance of the building and the

Plaintiffs' physical complaints and injuries must

be excluded because Dr. Jurinski is not a medical

doctor trained to make the connection.

Additionally, he, like some of the other experts,

cannot identify a causative link between the

building and the Plaintiffs' diagnoses. Thus, the

Defendants' Motion in Limine to exclude the

[**109] expert testimony of Dr. Neal Jurinski is

DENIED in part and GRANTED in part.

I. Dr. M. Imber

Defendants seek to limit the testimony of Dr.

Imber, an ear, nose, and throat doctor who is a

treating physician for Mrs. Brennan. He has

diagnosed Mrs. Brennan with chronic

rhinosinusitis. The heart of the Defendants'

Motion concerning Dr. Imber is that they do no

believe that Dr. Imber should be able to testify

as to the cause of SBS. Plaintiffs aptly point

out that Dr. Imber does not purport to be an

expert on SBS. Imber Dep. at 7, Dkt. No. 527, Ex.

57. Dr. Imber does not attempt to relate Mrs.

Brennan's condition to the building and

recognizes that, without cultures or viral

studies, one cannot empirically say that SBS is a

definitive diagnosis. Id. at 11, 12. The

Plaintiffs also point out that Dr. Imber never diagnosed SBS in anyone. Id.

The Defendants also ask this Court to exclude any

testimony by Dr. Imber that the building caused

the chronic rhinosinusitis. Again, the Plaintiffs

correctly point out that Dr. Imber never

testified that the building was the cause of Mrs.

Brennan's problems. Id. at 33; Plaintiffs' Ans.

Br. at 79, Dkt. No. 500. n51

Certainly, [**110] the Plaintiffs are not

offering Dr. Imber as an expert on SBS. And the

facts are clear that Dr. Imber does not opine

that Mrs. Brennan's chronic rhinosinusitis

was [*867] caused solely by the Discover Card

building. Imber Dep. at 39-40, Dkt. No. 527, Ex.

57. Dr. Imber is qualified to give his opinion as

to the diagnosis of chronic rhinosinusitis if

evidence is adduced that creates the causal link

to the building. Dr. Imber is certainly qualified

to give his diagnostic opinion before the jury.

Therefore, the Motion in Limine to limit the testimony of Dr. Imber is DENIED.

n51 In fact, Dr. Imber stated that there was no

known cause for her sinus problems. He testified

" in Mrs. Brennan's case, we will never find a

singular smoking gun. " Imber Dep. at 7, Dkt. No. 527, Ex. 57.

Dr. Weisberg is a psychiatrist who treats Ms.

Minner and has diagnosed her with depression. He

first diagnosed Ms. Minner with depression in

1997. Weisberg Dep. at 352, Dkt. Nos. 464 & 521.

My opinion is that her psychiatric illness is

caused [**111] by her physical condition, and

that she has been diagnosed as having -- by

several physicians, as having fibromyalgia. She

has been diagnosed by a few physicians at least

as having sick-building syndrome. If that Sick

Building Syndrome causes the fibromyalgia, then,

in that case, I do feel that working in the

building has caused her depression, if that is

the -- if that's the sequence of how things occurred.

Q. Do you feel you have the expertise to reach

that opinion yourself; that is, that Sick

Building Syndrome, in fact, causes chronic fatigue syndrome?

A. No, I do not.

Id. at 355.

The Defendants seek to exclude or limit any

opinion that Dr. Weisberg might give as to the

alleged cause of Mrs. Brennan's claimed CFS, FM,

and SBS. n52 Dr. Weisberg states uncategorically

that he has no expertise to give an opinion as to

the causative factors of CFS, SBS, and FM. But,

it appears a bit far fetched to exclude Dr.

Weisberg's psychological testimony that Mrs.

Brennan's physical symptoms caused her continuing

depression. Although he accepts the diagnoses of

SBS, CFS, and FM by the other doctors, he opines

ultimately that he believes Mrs. Brennan's

depression is based [**112] on her physical

condition. Dr. Weisberg cannot give an opinion as

to what caused Mrs. Brennan's physical symptoms,

but he is certainly qualified to link her

depression to her physical symptoms if the

underlying physical diagnoses are found valid by

the jury. Therefore, the Defendants' Motion in

Limine to exclude the expert testimony of Dr. Weisberg is DENIED.

n52 This Court has already held that there are no

universally accepted criteria for SBS and SBS is

not a valid diagnosis. Therefore, any diagnosis

of SBS must be excluded as a matter of law.

Additionally, Dr. Weisbert cannot testify as to

CFS and FM because there is no causal link

established. But he can state that Mrs. Brennan's

depression is related to her physical symptoms.

For the most part, the problem with the

Plaintiffs' medical experts is that they make

unsupported jumps as to causation and then ask

the Court to make an unwarranted and unwise leap

of faith. [HN15] A medical expert may not

speculate as to the possible medical causes or

consequences, [**113] and must limit the

testimony to causes or consequences that are

reasonably probable. L. Finger & Louis J.

Finger, Delaware Trial Handbook, § 18:4 (1994).

In this case, with limited evidence of causation,

as to the diagnoses of SBS, MCS, FM, and CFS, the

jury would be forced to speculate how any

building defect may have caused the Plaintiffs'

specific injuries. See Mazda Motor Corp. v.

hl, Del. Supr., 706 A.2d 526, 533 (1998).

Such speculation is precisely what a Trial Judge

is supposed to screen out when exercising his gatekeeping role under Daubert.

A further question arises. Of course, given the

Court's ruling herein, MCS and SBS are out of the

case. Unlike MCS and [*868] SBS, CFS and FM are

diagnosable diseases without known causes. The

question arises as to how to handle them at

trial. It seems to the Court that any them should

be excluded. They cannot be used to make the

Plaintiffs' case in the absence of legally

permitted evidence of causation. And, under the

circumstances of this case, they should not be

allowed to be used defensively either. It would

be very misleading to permit the Defendants to

confuse the jury by making an unproven causal

[**114] connection a defensive sword in the form

of an alternative explanation for Plaintiffs'

illness. Therefore, the Court is inclined to

exclude any mention of CFS and FM in addition to MCS and SBS.

II. Plaintiffs' Motions to Exclude Experts

The Court now turns to the Plaintiffs' Motions to

exclude the testimony of the Defendants' expert

witnesses. Thankfully, there are only two.

A. Dr. Sue E. Antell

Dr. Antell is a licensed neuropsychologist

employed as an expert by the Defendants.

Plaintiffs do not dispute that Dr. Antell is a

qualified expert in the field of neuropsychology;

rather, Plaintiffs argue that Dr. Antell did not

follow the proper cognitive forensic

neuropsychological testing methods in arriving at

her opinion. In short, it appears that the

Plaintiffs dispute the " methodology " that Dr.

Antell used in creating her report.

Dr. Antell examined Minner, Muttart, and Brennan

and prepared a report concerning each of the

named Plaintiffs in this case. n53 Plaintiffs

present slightly different objections to Dr.

Antell's reports prepared for the individual

patients, so the Court will address the objections in turn.

n53 Those reports are included in the record in

Plaintiffs' Motion to Exclude the Testimony of

Dr. Antell and Dr. Mechanick, Dkt. No. 438, Exs.

A, B, and C. For Muttart's report, see Appendix

to Ex. to Defendants' Opposition to Plaintiffs'

Motion in Limine to Exclude Certain Testimony of

Dr. Antell, Dkt. No. 493, Tab 3.

[**115]

1. Dr. Antell's Report as to Mr. Muttart

As to Mr. Muttart's testing, Plaintiffs argue

that Dr. Antell did not employ the proper scope

of tests to establish a reliable basis to predict

a neurological deficit. Plaintiffs also argue

that in one of the tests, WAIS-III, Dr. Antell

did not provide the Plaintiffs with the raw data

necessary to independently evaluate Mr. Muttart's

neurocognitive ability. n54 Plaintiffs also

question the reliability of the WAIS-III test

because of its newness. In support of their

position, Plaintiffs have filed the affidavit of

Dr. Jim Hom. n55 Dr. Horn states that Dr.

Antell's methods of scoring and administering

these tests, as well as the tests chosen, are not

those that should be used in a neuropsychological

forensic setting to determine cognitive defects.

n54 In her affidavit, Dr. Antell states that she

did not need to record verbatim the test results

for the WAIS-III test. She states that she

performed the test with the manual open in front

of her and the scoring system she used is

specifically endorsed in the manual on page 11.

Antell Aff. P 12, Dkt. No. 493, Ex. 6.

[**116]

n55 The Defendants have filed a Motion to Strike

the Affidavit of Dr. Hom (Dkt. No. 491), claiming

that Dr. Hom was not one of the expert witnesses

identified and they have not had the opportunity

to depose him. The Court agrees that the

Plaintiffs cannot use a backdoor method to get an

additional expert report into evidence. This

expert cannot opine by affidavit about the

techniques of Dr. Antell without being identified

at any time before the Motion in Limine. But,

while the Motion should logically be granted, the

Court has considered the affidavit of Dr. Hom.

For purposes of these Motions, the Court

considers the Motion to Strike as MOOT.

In Dr. Antell's report, she states: " Many of [Mr.

Muttart's] behaviors were [*869] consistent

with those seen in patients who are feigning

illness or symptoms but are not consistent with

the true injury. " Muttart Report at 3. The report

goes on to state that Dr. Ivins (the Plaintiffs'

expert) used extremely out-of-date tests which

should not be considered valid measures. Id. at

3. Dr. Antell noted that Mr. Muttart did

considerably better on the tests performed

[**117] by the Plaintiffs' expert, Dr. Ivins.

Id. at 4. Dr. Antell's ultimate conclusion in her

evaluation of Mr. Muttart was that he has " no

true neurocognitive symptoms and that the

symptoms that he does demonstrate are likely to

be feigned or malingered. " Id. at 6.

The dispute in this instance seems to center

around whether or not Dr. Antell should have used

a " fixed " battery of tests or whether or not it

was acceptable to use a " flexible " battery of

tests. While the Plaintiffs argue that the

" fixed " tests are the better tests to be used in

diagnosis of disease, the " flexible " approach

appears to be an acceptable method for the evaluation of patients.

A fixed battery test, such as the Halstead-Reitan

battery, may be overly time consuming and leaves

little room for in-depth testing in areas of

specific deficits. In our practice, the selection

of tests for a given client is often open-ended,

i.e., not all tests to be given in a particular

case are determined in advance. Rather, some

basic tests are given first. . . [and] further

tests are selected after a review of the results

of the broad-band initial testing. n56

Otfried Spreen & Ester Strauss, A

Compendium [**118] of Neuropsychological Tests

2d, Ch.2 at 11; see also Muriel D. Lexak,

Neuropsychological Assessment 2d., at 107

(advocating an examiner should begin with a basic

battery of tests that touches on the major

dimensions of intellectual behavior and the

examiner may need to go outside the basic battery

and use techniques relevant to this specific patient at this specific time).

n56 According to a survey of 279

neuropsychologist in 1994, the use of the fixed

battery test has dwindled to 14% and all other

clinicians use the flexible approach. Spreen & Strauss at 11.

Certainly the information in the record indicates

that Dr. Antell's flexible approach has at least

a reliable basis. In their reply brief,

Plaintiffs admit that almost all psychiatrists

use a flexible battery of tests. Plaintiffs'

Reply Br. at 8. The methodology employed by Dr.

Antell, as it applied to Mr. Muttart, is

certainly not flawed to the point of exclusion.

Whether or not Dr. Antell's opinion has the best

foundation must be left to [**119] the trier of

fact. See Kannakeril, 128 F.3d at 806. Her

results are sufficiently reliable for

admissibility and it appears that she based her

initial results on a sufficient battery of tests,

as required by Spreen and Strauss. See Antell

Aff. at 2, Dkt. No. 493, at Ex. 6. And the claim

that Dr. Antell did not save the raw data from

which she based her results is of no consequence

as to admissibility. Plaintiffs cite no authority

requiring Dr. Antell to record verbatim all

responses. Despite the Plaintiffs' protestations

concerning the scored responses, Dr. Antell's

recording method seems sufficient. Therefore, the

Motion in Limine to exclude the expert testimony

of Dr. Antell as it relates to Mr. Muttart is DENIED.

2. Dr. Antell's Report Concerning Minner

Plaintiffs argue that Dr. Antell's underlying

methodology in determining whether or not Ms.

Miner has any neurocognitive defects was

unreliable. Plaintiffs contend that the tests

were not meant to be used to detect a cognitive

deficiency. [*870] However, as discussed above,

Dr. Antell's methodology is reliable. Any dispute

about a foundational defect can be more

appropriately tested by

cross-examination. [**120] Dr. Antell's report

is certainly relevant to the case and is based in

sufficiently reliable data to be heard by the

jury. Therefore, the Motion to exclude the expert

testimony of Dr. Antell as it relates to Miner is DENIED.

3. Dr. Antell's Report Concerning Brennan

Plaintiffs make basically the same arguments with

regard to the relevancy and reliability of Dr.

Antell's report concerning Brennan as were

made concerning Mr. Muttart and Ms. Miner.

Therefore, the Motion to exclude the expert

testimony of Dr. Antell as it relates to Brennan is DENIED.

In addition, Plaintiffs argue that a portion of

Dr. Antell's report as to Mrs. Brennan should be

excluded because Dr. Antell states on page 5 of her report that:

Given the intensity, frequency, and variety of

complaints and the strong possibility that there

is exaggeration of symptoms, a Factitious

Disorder cannot be ruled out. Indeed with this

history of multiple invasive medical procedures,

a history of Munchausen's Disorder may be

appropriate although there is no evidence that

Mrs. Brennan intentionally inflicted any illness or disorder upon herself.

The Plaintiffs state that any reference to

[**121] Munchausen's Disorder n57 may cause the

jury to believe that Mrs. Brennan somehow

self-inflicted her illness. See Plaintiffs' Br.

to Exclude the Testimony of Dr. Antell and Dr.

Mechanick at 17, Dkt. No. 438. Plaintiffs also

state, without a record citation, that Dr. Antell

specifically stated at her deposition that she

cannot make a diagnosis of Munchausen's Disorder.

Id. It is the overall opinion of Dr. Antell that

there is no objective confirmation of any of the

complaints of neurocognitive dysfunction as to

Mrs. Brennan. Brennan Report at 5. There is no

allegation in Dr. Antell's report that Mrs.

Brennan self-inflicted her illness. Therefore, it

appears premature to rule on this point in the

context of a Motion in Limine. But it appears

that Mrs. Brennan's position is well taken as to

any suggestion of Munchausen's Disorder being

unsupported by a factual predicate; the best way

not to mislead the jury would be not to mention Munchausen's Disorder.

n57 Munchausen's Syndrome is " a condition

characterized by habitual presentation for

hospital treatment of an apparent acute illness,

the patient giving plausible and dramatic

history, all of which is false. " Dorland's

Illustrated Medical Dictionary at 1295 (26th ed. 1981).

[**122]

For the foregoing reasons, the Plaintiffs' Motion

to exclude the expert testimony and reports of

Dr. Antell as they relate to Muttart, Minner, and

Brennan is DENIED. IT IS SO ORDERED.

B. Dr. Mechanick

The Plaintiffs seeks to limit the testimony and

conclusions of Dr. Mechanick based in part on the

fact that he relies to a great extent on Dr.

Antell's neurological examination. n58 But,

because the testimony and reports of Dr. Antell

are not improper or deficient, any exclusion

based on Dr. Mechanick's reliance on Dr. Antell's reports is DENIED. n59

n58 Normally if the underlying factual basis of

an expert is so lacking in probative force that

no reasonable expert could base an opinion on it,

then the expert report must be excluded. See Pfizer, C.A. No. 97C-04-037.

n59 Plaintiffs do not dispute from a

psychiatrist's point of view that Dr. Mechanick

did an exhaustive analysis of the symptoms and

the medical records. Plaintiffs, however, dispute

the methodology of Dr. Mechanick's testimony.

[**123] [*871]

Plaintiffs further argue that Dr. Mechanick's

methods in reaching the diagnosis of

Undifferentiated Somatoform Disorder for Mrs.

Brennan, Ms. Minner, and Mr. Muttart are

unreliable. As for Mrs. Brennan, the Plaintiffs

claim that Dr. Mechanick did not perform a proper

differential diagnosis and the diagnoses of CFS

and FM (diagnosed by her treating physicians)

were correct. Dr. Mechanick opines that:

Mrs. Brennan's symptoms such as fatigue, loss of

appetite, excessive sleeping, insomnia,

headaches, double vision, and difficulty focusing

are not explained by Mrs. Brennan's employment at

the Discover Card building. The presence of these

symptoms, which are not fully explained by any

known general medical condition warrant a

diagnosis of Undifferentiated Somatoform Disorder.

Brennan Report at 39-40, Dkt. No. 495, Ex 1.

In the context of a Motion in Limine, the Court

is not in a position to pick and choose which

diagnosis from competing experts is correct.

Surely there will be defense evidence to the

effect that the Discover Card building did not

cause Mrs. Brennan's symptoms. The Court must

only evaluate if the diagnosis is based on

relevant and reliable information [**124] and is

based on sound methodology. Plaintiffs have only

come forth with conflicting testimony concerning

the diagnosis of Mrs. Brennan. Nothing has been

produced that undermines the basis of Dr.

Mechanick's opinion as it relates to Mrs.

Brennan. Therefore, Plaintiffs' Motion to exclude

the expert testimony as it relates Dr.

Mechanick's report and testimony concerning Mrs. Brennan is DENIED.

Plaintiffs next argue that it is inconsistent for

Dr. Mechanick to diagnose Undifferentiated

Somatoform Disorder and Malingering

simultaneously. n60 In support of that argument,

Plaintiffs cite the Affidavit of Dr. Neil Kaye,

who opines that it is inherently illogical and

contradicting to simultaneously diagnose

Undifferentiated Somatoform Disorder and

Malingering. Kaye Aff. at P3, Dkt. No. 438, Ex.

26. It is also the opinion of Dr. Kaye that Dr.

Mechanick did not apply the proper criteria in

his differential diagnosis. Id. at P4.

n60 Dr. Mechanick made this dual diagnosis for both Mr. Muttart and Ms. Minner.

Some [**125] definitions are in order.

Somatization Disorder is a polybutylene

symptomatic disorder that begins before the age

of 30 years, extends over a period of years, and

is characterized by a combination of pain,

gastrointestinal, sexual, and pseudo-neurological

symptoms. Diagnostic and Statistical Manual of

Mental Disorders at 445 (4th ed. 1994), Dkt. No.

495, Ex. 5. Undifferentiated Somatoform Disorder

is characterized by unexplained physical

complaints, lasting at least 6 months, that are

below the threshold for a diagnosis of

Somatization Disorder. Id. This text goes on to

state that: " In contrast to Undifferentiated

Somatoform Disorder, the physical symptoms of

Factitious Disorders and Malingering are

intentionally produced or feigned. " Id. at 551.

The same text, however, goes on to state:

In Factitious Disorder With Predominantly

Physical Signs and Symptoms and Malingering,

somatic symptoms may be intentionally produced to

assume the sick role for gain, respectively.

Symptoms that are intentionally produced should

not count toward a diagnosis of Somatization

Disorder. However, the presence of some

factitious or malingered symptoms, mixed with

other nonintentional [**126] symptoms, is not

uncommon. In such mixed cases, both Somatization

Disorder and a Factitious [*872] Disorder or Malingering should be diagnosed.

Id. at 449 (emphasis supplied).

This text shows that there is a factual and

scientific basis for Dr. Mechanick's seemingly

inconsistent diagnosis. Therefore, the jury

should decide what effect to give his testimony.

There is a sufficient indicia of reliability to

support the evidentiary reliability of Dr.

Mechanick's testimony. The decision concerning

whether the diagnoses of Plaintiffs' experts or

the Defendants' experts are to be believed should

be left to the trier of fact. Thus, the Motion in

Limine to exclude Dr. Mechanick's testimony is DENIED.

CONCLUSION

For the foregoing reasons, the Defendants'

Motions in Limine to exclude the testimony of

Doctors Ziem, Howarth, Messinger, Seltzer, Kaye,

Ivins, and Jurinski are DENIED in part and

GRANTED in part, and the Motions in Limine to

exclude the testimony of Doctors Weisberg and

Imber are DENIED. Defendants' Motion in Limine as

to Dr. Michell is GRANTED. The Plaintiffs'

Motions in Limine to exclude the expert testimony

of Doctors Antell and Mechanick are DENIED. IT IS SO ORDERED. [**127]

This Opinion will probably not make either side

happy. But it seems to the Court that is

consistent with the healthy skepticism with which

the Courts have historically greeted expert

testimony. The fringe has been eliminated. At the

same time, the Opinion does not foreclose a case

on the frontier of medical exploration. My hope

is that the decision, after the examination by

counsel, will provide a useful and orderly

framework in which the litigation can proceed.

Whether it does or not is, of course, somewhat

dependent upon the value of the Court's Opinion.

But I suspect it is even more dependent upon

counsel's willingness to accept the framework and

to participate within its bounds. If the case

goes this route, we have a long way to go.

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