Expert testimony concerning the cause of plaintiffs' multiple chemical sensitivity is inadmissible as a matter of law under Fed.R.Civ.P. 702 and because the testimony is too speculative to constitute "scientific knowledge," a federal district court in New York ruled July 15 (Frank v. New York, DC NNY, No. 95-CV-399, 7/15/97).
After examining the relevant admissibility factors, the U.S. District Court for the Northern District of New York agreed with every federal court that has addressed the issue: The theory underlying MCS "is untested, speculative, and far from generally accepted in the medical or toxicological community," failing to meet the standard of evidentiary reliability established in Daubert.
Initial Acute Exposure Alleged. The plaintiffs in this action, former employees of the New York State Department of Taxation and Finance, allege that they were exposed to pesticides and other agents in October 1991, and that the initial "acute" exposure made them hypersensitive to normal levels of airborne environmental chemicals and pollutants. They allege their employer failed to make reasonable accommodation, required under the Americans With Disabilities Act, for their "disability"--multiple chemical sensitivity.
The defendants (the state and the plaintiffs' supervisors) moved to exclude any expert testimony attributing the plaintiffs' alleged disability to MCS.
The theory behind MCS, the court explained, is that "various kinds of environmental insults may depress a person's immune system so that the exposed person ... becomes hypersensitive to other chemicals and naturally occurring substances. Federal Judicial Center, Scientific Evidence 73 (1994)."; The American College of Occupational and Environmental Medicine identified four elements of MCS: (1) an initial identifiable environmental exposure resulting in the onset of symptoms; (2) symptoms ranging among multiple organ systems such as respiratory and nervous systems; (3) recurring symptoms after exposure to very low levels of diverse chemicals; and (4) symptoms that cannot be accounted for by other medical conditions.
Daubert v. Merrell Dow Pharmaceuticals Inc. made explicit the standard for district courts evaluating the admissibility of scientific evidence, the court recognized: The judge must make a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid.
In making the preliminary assessment, courts are to consider whether the scientific theory can be tested; the extent to which the theory has been subjected to peer review and publication; the known or potential rate of error of any scientific technique at issue; and whether the theory is generally accepted in the scientific community, the court said.
No Test, No Peer Review. As plaintiffs' expert Dr. Michael Lax conceded, "a test for the existence of MCS does not presently exist and ... exposures to certain kinds of chemicals cannot recreate MCS symptoms to a scientific certainty."
MCS diagnosis is "virtually untestable," the court found. To the extent that the MCS theory has been tested, the court continued, "such tests have failed to provide objective support for the notion that the symptoms complained of by MCS sufferers are caused by environmental pollutants."
The lack of an objective testing method for MCS "gives rise to high probability of error in MCS diagnosis," and the plaintiffs submitted "no proof of any testing rate for MCS, much less a reliable one," the court said.
"Peer review of the MCS theory has revealed a host of flaws in the theory, warranting skepticism as the validity of MCS," and "MCS' status in the medical community is a far cry from general acceptance," the court said.
Reviews of MCS literature conducted by well-established medical organizations such as the American College of Physicians and the American Medical Association generally have found "little scientific evidence exists to substantiate the existence of MCS or establish a cause and effect relationship between MCS and chemicals." (quoting from E.E. Sikorski et al., Roundtable Summary: The Question of Multiple Chemical Sensitivity, 24 Fund. Appl.Toxicol. 22 (1995). The American College of Occupational and Environmental Medicine has concluded that the "scientific and clinical evidence supporting the pathophysiological mechanisms and treatment regimes" for MCS represent an "experimental methodology," the court said.
Nor do toxicologists recognize MCS as a specific illness, the court said. The International Society of Regulatory Toxicology and Pharmacology, in an article published at 18 Regulatory Toxicol. & Pharmacol. 79 (1993), concluded: "Current scientific information reports no clinical, laboratory, or other objective support for the proposition that MCS represents a clinical definable disease entity. The theories claiming to unify this condition as a toxicologically mediated disorder transgress basic principles of toxicology and clinical sciences and moreover the scientific evidence is lacking."
The court agreed with the reasoning in Bradley v. Brown, 852 F.Supp. 690 (DC NInd), affd 42 F.3d 434 (CA 7 1994): "The science of MCS's etiology has not progressed from the plausible, that is the hypothetical, to knowledge capable of assisting a fact-finder, jury or judge."
The controversy surrounding MCS, the court concluded, should be settled by science, not by litigation.
The court ruled that the plaintiffs' experts' testimony is inadmissible to the extent it refers to MCS or to the theory that the alleged symptoms, physiological or psychological, are caused by low-level exposure to environmental pollutants, and that such sensitivity was caused by an initial, acute exposure to pesticides at the work site.
Chief Judge Thomas J. McAvoy wrote the opinion.
Brendan F. Baynes of Maynard, O'Connor, Smith, Cataline & D'Agnostino in Albany, N.Y., represented the plaintiffs. Dennis C. Vacco, Attorney General Of New York represented the state and other defendants.
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