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OREGON MOLD LITIGATION (cont'd)

B. Standard of proof for experts in Oregon

The standard for admissibility of expert and scientific evidence and testimony has been greatly liberalized in Oregon in recent years. See e.g. Jennings v Baxter Healthcare Corp, 331 Or 285, 14 P3d 596 (2000) (trial court committed reversible error in excluding expert testimony of causation concerning neurological injuries from breast implants). Oregon trial courts have permitted introduction of scientific evidence associated with toxic mold on several occasions. Unfortunately, some attorneys have been prevented from introducing expert testimony in their cases due to their inability to understand its relevance and explain it to the court. In my opinion, relevancy of expert testimony concerning mold exposure and illness should not even be a close question at this point.

In the Lane County Circuit Court case of Paul Hawks, Karen Hawks, Ralph Weeldreyer, Fiberglass Specialties, Inc,. dba The Pellet Center v Margaret C. Hartley, Case no. 16-99-08461, the court considered a challenge to Plaintiffs’ medical expert, industrial hygienist, and environmental health expert made the day before trial.  He denied all three challenges on July 13, 2000. First Judge Rasmussen stated that not all expert testimony is "scientific" testimony for 104 purposes, and on this basis denied defendant's challenges to the hygienist and environmental health experts based on his review of their qualifications.  The court also found Brown v Boise-Cascade Corp., 150 Or App 391 (1997), rev den 337 Or 317 (1998), where trial court exclusion of industrial hygienist was reversed, as controlling on the admissibility of the hygienist testimony. Dr. James Craner of Reno, Nevada was plaintiff’s medical expert. Judge Rasmussen allowed him to testify to make a preliminary showing of admissibility.  The defense in the Hawks case relied on a doctor from OHSU to attack the admissibility of scientific evidence concerning the toxicology of mold. This OHSU doctor is a frequent defense expert and he invariably says that there is no logical explanation for the plaintiffs’ symptoms, and that they were not caused by mold exposure. After the direct and cross of Dr. Craner was completed, Judge Rasmussen denied the motion outright and this OHSU doctor was not even allowed to testify at the 104 hearing.

In another toxic mold case in Lane County, Dr. Mark O’Hara, Mary Jane O’Hara et. al v Michael Cockram, Jeff Stangland dba Stangland Construction and Harvey & Son Heating and Air Conditioning, Inc., Case No 16-00-12848, the court allowed the same Dr. James Craner to testify concerning that toxic mold in the O’Hara’s home was a cause of their medical and health problems.
Section 702 of Oregon’s Evidence Code sets the standard for admission of scientific evidence:

"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."

According to State v. Brown, 297 Or 404, 409, 687 P2d 751 (1984), expert testimony is admissible if it is relevant under OEC 401, would assist the trier of fact under OEC 702, and is not subject to exclusion under OEC 403. Scientific evidence "draws its convincing force from some principle of science, mathematics and the like. Typically, but not necessarily, scientific evidence is presented by an expert witness who can explain data or test results and, if necessary, explain the scientific principles which are said to give the evidence its reliability or accuracy." Brown, supra, 297 Or at 407- 408. The Brown court utilized a number of factors in determining whether scientific evidence is probative under OEC 401 and OEC 702. Those factors are:
      (1) The technique's general acceptance in the field;
      (2) The expert's qualifications and stature;
      (3) The use which has been made of the technique;
      (4) The potential rate of error;
      (5) The existence of specialized literature;
      (6) The novelty of the invention; and
      (7) The extent to which it relies on the subjective interpretation of the expert.

Those seven factors are not an exclusive checklist. Clinical diagnoses (differential diagnosis) and the process of elimination also bear the marks of scientific inquiry. A medical doctor gathers information from a patient from an interview and an objective physical examination to develop a working diagnosis (a hypothesis). He then uses that working diagnosis to gather further information or to conduct specify tests that will confirm or refute the working diagnosis. Certain possible causes can be eliminated as the list of possible maladies is winnowed down to eliminate certain suspect causes that do not produce given symptoms.

"The goal of the clinician is to arrive at a diagnosis that can be used to develop a rational plan for further investigation, observation, or treatment, and ultimately to predict the course of the patient's illness * * *. To do this, the clinician must verify or validate the diagnostic hypothesis." Reference Guide on Medical Testimony at 463-64.

In Jennings, supra at page 308, the Supreme Court noted:

“Grimm testified that he performed "a classic neurological examination" on each of the women in his study group. Grimm's hypothesis is based on his own experiences and observations, as well as on scientific methodology. . . . . Grimm conducted his evaluations by using neurological examination techniques generally accepted by the scientific community and with an error rate of five to seven percent. In each case, Grimm made personal observations and conducted a medical record review. He proceeded in conjunction with other specialists involved in the women's care. Grimm also studied the scientific and medical literature about silicone-related subjects.”
“Grimm eliminated other potential causes of plaintiff's conditions through differential diagnosis, which is a generally accepted form of scientific inquiry.”

Grimm's study and conclusions had not been subjected to peer review and had not been published. However, the court found that neither peer review nor publication is a sine qua non for the admissibility of scientific evidence.

Practice Tips: The plaintiffs’ practitioner should cite this Jennings decision, especially if your medical expert is not “published” or has not written many papers that have been submitted to peer review.

While one would think that Jennings made admissibility of expert testimony pretty much a given and any challenges to the evidence being reduced to consideration of weight rather than admissibility, an Oregon attorney representing plaintiffs should be ready to respond to a blitzkrieg of defense motions to exclude medical experts. It is a common defense tactic and many judges, like people generally, do not know anything about mold and are prone to defense argument that these many studies documenting mold’s association with human health problems are ”junk science.” The unwary mold attorney who does not understand mold science will likely not be able to explain it to the judge and overcome the defense. The plaintiff’s attorney should file a pretrial motion in limine to obtain a ruling that defense counsel and his experts be precluded from using the term “junk science” when referring to plaintiffs expert reports and sources that back them up. The practitioner should also become thoroughly familiar with the science of mold intoxication and exposure and not merely rely on their experts to explain it all. Sometimes, as shown below in the O’Hara case, the expert has completed his testimony and goes home – usually out of state. In others, as shown below in the Haynes case, counsel finds himself having to explain the concept of, for example, the blood tests used, to the trial judge to show that the tests are within mainstream medical science.

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