EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, December 10, 2007

Where's The Beef?: West Virginia Supreme Court Reverses Circuit Court Expert Opinion Decision In Case Against Wendy's

The West Virginia Supreme Court of Appeals has restored a lawsuit against Wendy's after a circuit judge had dismissed the complaint on the ground that the plaintiffs' expert witnesses were not qualified to render expert opinions.  In 2002, Clinton San Francisco and his wife, Jessie, went through the drive-thru at a Charleston Wendy's while on the way to taking their daughter to a hair appointment.  Clinton ordered a single hamburger with mustard, onion, pickles and tomatoes.  As he started eating the burger, however, Clinton commented that it was raw inside, tasted funny, and had a weird texture.

Clinton tossed the burger after eating about 1/4 of it, but his stomach felt queasy and he was sweating profusely; two hour later, he vomited and had diarrhea.  When he was still in pain two days later, Clinton went to Logan General Hospital and vomited 1.8 liters of material while in the emergency room.  While Clinton was at Logan General, Dr. Peter Gregor, a physician board certified in internal medicine and cardiology, performed a "differential diagnosis" on Clinton in which he considered and ruled out causes other than food poisoning for Clinton's illness.  As a result, Dr. Gregor concluded to a reasonable degree of medical certainty that Clinton was suffering a foodborne illness caused by the Wendy's hamburger.

Based upon Dr. Gregor's diagnosis, the San Francisco's sued Wendy's on the ground that Clinton suffered his illness based upon Wendy's selling "unsafe, unwholesome, or unfit food product."  During discovery, the San Francisco's contacted Ewen Todd, Ph.D., an expert in food safety and toxicology from Michigan State University.  Relying upon a published scientific study, Dr. Todd concluded that there was E. coli bacteria in the ground beef in the Wendy's hamburger, that the bacteria produced verotoxin, and that Clinton's ingestion of verotoxin produced the rapid onset of Clinton's symptoms.

Wendy's thereafter moved for summary judgment dismissing the complaint on the ground that Dr. Gregor and Dr. Todd were not qualified to give expert testimony.  The circuit court granted the motion, finding that Dr. Gregor was a cardiologist and not a specialist in gastroenterology or infectious disease and that Dr. Todd's opinion was based upon research that had been subjected to limited publication and peer review.

On appeal, the West Virginia Supreme Court of Appeals had to determine whether the doctors could be qualified as experts pursuant to West Virginia Rule of Evidence 702, which is based off of the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), and which asks the court to determine whether the expert is qualified to testify as an expert, the reliability of the scientific theory undergirding the expert's conclusions, and the relevance of the expert's testimony.

As the West Virginia Supreme Court of Appeals noted, there are several factors which a court can apply in determining reliability, such as "whether the scientific theory and its conclusion can be or have been tested; whether the scientific theory has been subjected to peer review and publication; whether the scientific theory's actual or potential rate of error is known; and whether the scientific theory is generally accepted within the scientific community."  The court, however, acknowledged that sometimes a scientific theory first appears in court because, inter alia, an expert's testimony is not novel and is therefore of little publication interest.   

The West Virginia Supreme Court of Appeals first found that Dr. Gregor was qualified as an expert because, while he was not a specialist in gastroenterology, from 1979 to 2002, he treated numerous gastrointernal conditions.  This holding seems proper in light of the fact that courts are typically liberal in qualifying witnesses as experts.  The court next found that Dr. Gregor's differential diagnosis was based upon a reliable scientific theory and relevant, which is in accord with case law. See Bitler v. A.O. Smith Corp., 391 F.3d 1114, 1123 (10th Cir. 2004) (collecting cases where courts have held that differental diagnoses were sufficiently reliable under Rule 702).

With regard to Dr. Todd, there was no question about his qualifications, and the only issue was whether the scientific theory that he used was reliable.  The West Virginia Supreme Court of Appeals acknowledged that Dr. Todd only relied upon one published study and that his scientific method was likely used only by a "minority of scientists in the field;" however, the court found that his theory regarding E. Coli/verotoxins was not novel and would not warrant a great interest in publication because food poisoning is a fairly common illness. 

The court also found that it could treat Dr. Todd's expert qualifications themselves as circumstantial evidence that he used a scientifically valid methodology.  Again, it seems to me that the court acted properly in allowing an expert in food safety and toxicology to render his opinion as to whether Clinton suffered from foof poisoning.  Thus, I think that the court acted correctly in reversing and allowing the case to go forward.



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