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WASHINGTON MOLD LITIGATION (cont'd)
3. Washington Standards for Admissibility of Expert Evidence
Washington follows a standard for admissibility of scientific and medical evidence that follows Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (expert testimony is only admissible if it is generally accepted in the relevant scientific community). Washington’s Supreme Court implicitly adopted the Frye standard in State v. Woo, 84 Wn.2d 472, 527 P.2d 271 (1974). Although the court may not weigh evidence, it does have the discretion to determine whether a witness qualifies as an expert and whether his or her testimony would be helpful to the trier of fact. See In re Pers. Restraint of Young, 122 Wn.2d 1, 57, 857 P.2d 989 (1993) ("The determination of whether expert testimony is admissible is within the discretion of the trial court."). Additionally, new scientific evidence is subject to the Frye test for admissibility. See, e.g., State v. Gregory, 158 Wn.2d 759, 829, 147 P.3d 1201 (2006).
Under Frye, a court is to determine if the evidence in question has a valid, scientific basis. Because judges do not have the expertise required to decide whether a challenged scientific theory is correct, they defer this judgment to scientists. This inquiry turns on the level of recognition accorded to the scientific principle involved, so courts look for general acceptance in the appropriate scientific community. If there is a significant dispute between qualified experts as to the validity of scientific evidence, it may not be admitted. Evidence deriving from a scientific theory or principle is admissible if that theory or principle has achieved general acceptance in the relevant scientific community. But scientific opinion need not be unanimous for scientific evidence to be admissible. The difference of opinion is why both sides hire experts and let the jury decide which side’s view it believes is more valid.
Once a methodology is accepted in the scientific community, then application of the science to a particular case is a matter of weight, not admissibility. Washington’s evidentiary rule, ER 702, allows qualified expert witnesses to testify if scientific, technical, or other specialized knowledge will assist the trier of fact. See also State v. Copeland, 130 Wn.2d 244, 263, 272, 922 P.2d 1304 (1996) (citing State v. Cauthron, 120 Wn.2d 879, 886, 846 P.2d 502 (1993).
The question of admissibility is not based on reliability, but whether it is generally accepted in the scientific community. Blood tests have been accepted in the scientific community for many decades, yet defense attorneys will sometimes try to suppress blood tests showing the presence of mold antibodies in a mold victim’s blood. How do they do that? A defense attorney may challenge the circumstances under which the test was taken or the test mechanism itself. But with blood tests, they all pretty much do the same thing, even though their methodologies differ. All blood tests seek to see if there is evidence that a certain substance is present in the blood. In Washington, whether a given scientific technique has been performed correctly in a particular instance, (i.e. whether laboratory error has occurred) goes to its weight, not admissibility. Copeland, supra, 130 Wn.2d at 270.
A brief example of how this type of challenge is made appears in the chapter on Oregon Mold Litigation. The defense attorney in the Haynes case, referenced in the Oregon chapter, tried to exclude plaintiffs’ lead medical expert, the late Dr. Vincent Marinkovich, from testifying. Dr. Marinkovich was an immunologist who had treated thousands of mold victims over his career and was well qualified to render an expert opinion based on his experience and training. The defense seized upon the idea that he had invented a new kind of blood test for mold antibodies, using a thread upon which mold antigens were imbedded. Other blood tests utilized different means to introducing the blood to mold antigens, such as a porous jell or plastic plates. Dr. Marinkovich developed this thread test and sold it to a private entity because he did not want to be accused of having a conflict of interest when he used his own test. That company had not marketed it effectively, leading defense to claim that the test was not generally accepted in the medical community. But the essence of all bloods tests is to see if the blood reacted with the mold antigens. If a reaction occurred, this evidenced that the body had been exposed to mold because it had started developing an immunological response (antibodies).
It made no difference how blood was introduced to the antigens, because any one of the blood tests used would lead to the same result. Dr. Marinkovich agreed with this and the court allowed him to testify despite the fact that the test he invented was not in widespread use.
Defense attorneys will routinely challenge the testimony of plaintiffs’ experts, but the plaintiffs rarely challenge defense experts. Why is that? Usually a plaintiffs’ attorney is concentrating on other aspects of the case such as proving liability and damages. But more than one plaintiff attorney has been blindsided by a motion to exclude plaintiffs’ experts at trial. The lawyer should become familiar with the tests run by his medical expert and be able to explain them to the judge. The unwary mold attorney who does not understand mold science will likely not be able to overcome the defense’s objections to his experts and their evidence.
Ultimately, the admission of expert testimony is within the trial court's discretion. Under ER 702, expert testimony may be admitted if the witness qualifies as an expert and the expert testimony will be helpful to the jury. On appeal, reviewing courts examine this evidentiary ruling de novo and substitute their own judgment for the trial courts, if appropriate.
Practice tip: If your expert is challenged by a defense attorney who claims that his doctor is right and yours is wrong, argue to the court that this is not an issue of whether your doctor’s testimony is admissible, but one which goes to the weight of the testimony. Which expert to believe is a jury question.
Another practice tip: Plaintiff attorneys, do not merely acquiesce in the defense experts being allowed to testify at trial. Challenge their theories and whatever tests they rely upon. Often the defense experts use animal studies and fuzzy math to extrapolate from them and then theorize that humans will not suffer from mold exposure. Challenge the theories that the defense employs. Often defense experts are willing to take leaps of logic that they would sharply criticize if a doctor testifying for a mold victim did something similar.
Still another practice tip: 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. This name calling by defense experts can stick in a juror’s mind and influence his or her opinion.
Clinical diagnoses (or differential diagnosis) depends upon observation of objective symptoms and the process of elimination. 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. In fact, this deductive reasoning is the hallmark of most clinicians’ approaches to treating patients. As a generally accepted medical guide to expert testimony states:
"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. If a patient presents with a malady having ten symptoms, the doctor can eliminate those causes that do not apply. For example, a mold victim may have an upset stomach, which may eliminate allergy or sinusitis as a diagnosis, but not the flu. An additional symptom, such as a skin rash, may eliminate flu or colds as a possible diagnosis and implicate a fungal infection. This is how doctors have been diagnosing illnesses since medical science was born.
Practice tip: Make sure that when your medical expert is challenged, you lay great emphasis on the fact that he made objective findings of the presence of symptoms during a physical examination. Doctors have been performing physical examinations upon patients since Hypocrates. Then show that the tests used are similar to those used throughout the medical field for a long time (skin prick testing, allergy testing and blood sampling). Once the methodology is established as within the mainstream of medical science, then it is just a matter of the doctor interpreting his findings. Prepare your doctor for facing this exercise so he is ready to authenticate the methods he uses from his past experiences. If his assumption in past cases was mold contamination and his treatment for that malady improved the patient’s health, this indicates that he is on track. If the doctor has been allowed to testify in the past, it would not hurt for him to mention that he has been allowed to testify by other judges when trying to overcome a defense objection in your case.
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