Moore v. Ashland Chemical


Summary: Atlantic Legal has made a substantial addition to its growing list of victories for sound science in the courtroom. In Moore v. Ashland Chemical, Inc., the United States Court of Appeals for the Fifth Circuit upheld a ruling that expert medical testimony should be subjected to the same standards of rigor as other forms of scientific evidence. Atlantic Legal played a pivotal role in that decision.

Robert Moore had developed a respiratory disorder shortly after being exposed to chemical fumes at work. Moore, a driver for Consolidated Freightways, had delivered a truckload of Dow Corning chemicals to Ashland Chemical. Upon arrival, Moore discovered that toluene, a chemical made by Dow Corning, had leaked into the back of the truck. He was required to clean up the spill, a process that took nearly an hour, and he was not permitted to wear a respirator during that time. About an hour afterward, Moore began experiencing dizziness, watery eyes, and breathing trouble. He sought treatment, but the problems persisted, and within weeks he was so disabled he was forced to quit his job. After seeing two pulmonary specialists, Moore was diagnosed with reactive airways dysfunction syndrome (RADS), a condition his doctors attributed to his exposure to toluene fumes.

Moore and his wife sued Ashland Chemical and its subsidiaries for negligence. Moore brought suit at a crucial moment in the history of "toxic tort" litigation. Three years after Moore’s exposure to toluene, in another toxic tort case, the Supreme Court established guidelines for what kinds of expert testimony are admissible in the courtroom. In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), the court found that expert testimony must be grounded in scientific knowledge to be admissible in court. This ruling would prove to be central to Moore’s case. Moore’s claim that toluene fumes had caused his condition hinged on the testimony of two of his physicians, Dr. Daniel E. Jenkins, who diagnosed him with RADS, and Dr. B. Antonio Alvarez, who treated him for it. Moore had been a heavy smoker for twenty years. As a child, he was an asthmatic. He was recuperating from pneumonia at the time of the toluene spill. Even so, both physicians contended that Moore’s condition was caused by toluene fumes, but the basis for their opinion was hotly disputed at trial.

In Daubert, the Supreme Court ruled that the inferences and assertions of expert witnesses should not be considered reliable unless they are firmly based in scientific methods. Alvarez based his theory of causation on a study he read about in a peer-reviewed medical journal. Jenkins’ theory was, by contrast, purely speculative, the result of diagnostic guesswork. Accordingly, Alvarez’ testimony was admitted, while Jenkins’ was excluded. Also admitted was the testimony of the defense’s expert witness, Dr. Robert Jones. Jones testified that Moore was not exposed to toluene at anything near the levels that would have been caused lung damage. He reviewed Moore’s medical records, concluding that Moore did not have RADS, but bronchial asthma. The court found for Ashland, determining that there was no demonstrable causal connection between Moore’s illness and his exposure to hazardous materials at work. Moore appealed, arguing that Jenkins’ testimony had been unfairly excluded. A divided court agreed, stating that medical opinion is not subject to Daubert standards because medicine is not a "hard science." The appellate court reversed the original judgment and remanded the case for a new trial.

The gravity of the case, combined with the evident confusion of the three-judge panel of the U.S. Court of Appeals for the Fifth Circuit about the Daubert standards, spurred concerned lawyers and scientists to action. On behalf of a group of highly respected scientists, including three Nobel prize winners in Medicine, Atlantic Legal filed an amicus brief when the case was reconsidered by the full bench of the Fifth Circuit en banc that sought to clarify the principles established in the Daubert ruling. Our brief showed not only that medical sciences such as toxicology and epidemiology absolutely conform to the most rigorous scientific standards, but also that Daubert was itself a case that hinged on the issue of medical causation. Since the Daubert standard was derived from a medical case, we argued, the trial court was well within bounds when it judged Jenkins’ testimony by that standard. Our brief also cited General Electric v. Joiner, 522 U.S. 136 (1997), another toxic tort case in which the Supreme Court further clarified the evidentiary standards of expert testimony about medical causation.

There was no better organization to write such a brief: Atlantic Legal was instrumental in framing both the Daubert and the Joiner decisions. We were instrumental in framing the Moore decision, too. Following our reading of Daubert and Joiner, the appellate court en banc determined that Jenkins’ testimony had been fairly excluded, reversed the three-judge panel, and reaffirmed the trial court’s original judgment for the defendant. Moore v. Ashland was a watershed moment in the courts’ ongoing clarification of the reach and rationale of the evidentiary principles established in Daubert. From Daubert to Joiner to Ashland, Atlantic Legal is achieving great success in guaranteeing that this increasingly complex corner of the law adheres to the highest standards of judicial and scientific integrity.

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