April 16, 2009
Two Cases on Multiple Chemical Sensitivity
A diagnosis that is presented in courts with some regularity is "multiple chemical sensitivity." Wikipedia provides the following links and remarks about its dubious scientific status:
"Because of the lack of scientific evidence based on well-controlled clinical trials that supports a cause-and-effect relationship between exposure to very low levels of chemicals and the myriad symptoms reported by clinical ecologists, MCS is not recognized as an established organic disease by the American Academy of Allergy, Asthma, and Immunology, the American Medical Association (AMA), the California Medical Association, the American College of Physicians, and the International Society of Regulatory Toxicology and Pharmacology."
Case law therefore generally rejects expert medical testimony of MCS. A recent Kansas court of appeals case, Kuxhausen v. Tillman Partners, 197 P.3d 859 (Kan. Ct. App. 1998), is illustrative. "When Stacy Kuxhausen reported for work at an accounting firm on a Monday morning in Manhattan, Kansas, she smelled paint and began to feel ill within minutes of entering the building. She said that her eyes burned, that she started to get a sore throat, and that she had to take deep breaths to get enough air. She later learned that epoxy-based paints had been applied in the basement of the building on the preceding Friday and Saturday. Kuxhausen came back to the building twice more over the next few days but stayed for only a few hours each time. . . ." She sued the building owners for about $2.5 million.
She found a member of the American Academy of Allergy, Asthma, and Immunology (not board certified), Dr. Henry Kanarek, who has diagnosed more than 100 patients with MCS and who concluded that Ms. Kuxhasen was suffering from this condition. The trial judge barred the diagnosis on the ground that MCS is not an ailment that is generally recognized in the medical community.
The court of appeals affirmed. There is nothing odd about that, but the court had to distinguish Kuhn v. Sandoz Pharmaceuticals Corp., 14 P.3d 1170 (Kan. 2000). Although Kansas follows Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), in requiring general acceptance of scientific propositions that are the basis of expert testimony, Kuhn tosses this test out the window when the expert gives "pure opinion" based on personal experience. Thus, had Dr. Kanarek simply testified that in his 13 years of practice, he had encountered more than a 100 cases of MCS, the trial judge might have had to admit the diagnosis. But "[w]hen asked his basis for multiple-chemical sensitivity
as a valid diagnosis," Dr. Kanarek cited "information that has appeared
in various articles written in the publications that I've read as well
as lectures or discussions." Because he "has relied upon articles and lectures by others as support for the validity of the diagnosis," the court of appeals concluded that his testimony was inadmissible, Kuhn notwithstanding.
There is something ironic about a legal doctrine that excludes scientific evidence when the expert cites the scientific literature yet admits it when the expert relies on much more limited (and much less reliable) personal experience of a single physician. Kuhn makes little sense.
The Kansas Court of Appeals had to get around bad law to reach a reasonable result. Moving from Kansas to Oregon, the Oregon Court of Appeals misapplied good law (in the form of a state test for scientific evidence that anticipated the approach in Daubert v. Merrell Dow Pharmaceuticals) to deem it an abuse of discretion for a trial court to exclude such theories as dental fillings cause chemical sensitivity. In Kennedy v. Eden Advanced Pest Technologies, 193 P.3d 1030 (Or. Ct. App. 2008), the court of appeals thought that theories and publications within the subculture of clinical ecology were just as valid and established as mainstream medicine. It was unfazed by a toxicologist's testimony within "the recognized medical community" there was zero acceptance of the field "because it hasn't been substantiated [as] a scientific method." Id. at 1037.
Plaintiff relied on a diagnosis of "Dr. William Rea . . . who founded the Environmental Health Center in Dallas," id. at 1035, and whose methods, the court conceded, had been rejected by "virtually all courts that have considered the issue." Id. at 1041. But a physician who testified for the defendant dismissed the diagnosis as resting on "novel tests * * * published in obscure journals for which we don't know anything about peer review or other aspects of the testing procedure." Id. at 1037. He explained that Dr. Rea was "the mouthpiece, so to speak, for the clinical ecology movement. But the—the difficulty with—with this concept is that it's never had any scientific underpinnings. [T]he condition [cannot] be defined in such a way that anybody can properly diagnose it. [W]e continue to see a number of physicians who . . . use diagnostic tests that are not validated. They continue to make the diagnosis of multiple chemical sensitiv[ity], or MCS, or chemical sensitivity or sometimes it's been renamed to idiopathic environmental intolerance. None of these are legitimate diagnosable medical conditions for which criteria exist." He insisted that Dr. Rea is "practicing something that is not mainstream medicine, for sure. That, I can tell you."
In essence, the Oregon court substituted a simple credentials test for the requirement of a scientific foundation for scientific testimony, observing that "Rea is a medical doctor who has practiced for a long period of time, belongs to relevant professional organizations, and has examined over 30,000 patients." Id. at 1039. Apparently thinking that the possession of an M.D. makes a physician a scientist, the court stated that "there exists a legitimate debate within the scientific community between two groups of scientists." Id. at 1040. It concluded that "the most that can be said is that there is a controversy in the medical community about whether chemical sensitivity or MCS is a valid diagnosis." Id. at 1039.
The question, of course, is not just whether there is a controversy among individuals with advanced degrees. It is the nature, quality, and extent of the data that might confirm or refute the beliefs of these individuals. The learned professions are not immune to quackery. Some physicians entertain unvalidated -- and sometimes implausible -- theories. These believers may organize themselves into professional societies, issues certificates to their members, and publish their own peer-reviewed journals (that are ignored by the larger medical community). Courts dealing with medical testimony therefore may have to probe more deeply than the Oregon court did into the substance of the dispute if they are to reach sound decisions about the admissibility of scientific evidence.
Thanks to David Bernstein for calling the Oregon Court of Appeals opinion to my attention. Further discussion of the admissibility of medical testimony in light of modern tests for scientific evidence can be found in The New Wigmore, A Treatise on Evidence: Expert Evidence (2004).