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Hottinger v. Trugreen Corp.: Testifying With Reliable Evidence

Will "fallout" from Bradley v. Brown, which finds the scientific foundation of Multiple Chemical Sensitivity (MCS) disorder to be unreliable, lead to excluding other, more reliable evidence of a toxic chemical injury?

In 1996 the Indiana Court of Appeals reversed a district court finding of summary judgment in favor of defendant's argument that Bradley, 42 F.3d 434 (7th Cir. 1994), applied to a case of herbicide exposure—Hottinger, 665 N.E. 2d 593 (Ind. Ct. App. 1996). Indiana Evidence Rule 702 requires that expert scientific testimony, to be admissible, must rest on reliable scientific principles. In Steward v. State, 652 N.E.2d 490 (Ind. 1995), the Indiana Supreme Court held that Daubert is useful in applying the Indiana Rule.

In ruling that the trial court had abused its discretion, the Appeals Court contrasted the generally unreliable MCS evidence in Bradley with the substantially reliable evidence of nervous system injury in Hottinger:

§ A specific statistical association between exposure to the herbicide 2,4-D and nervous system injury, and, therefore, the inference of general causation, was established in peer-reviewed journals as early as 1959, including in the Journal of the American Medical Association.

§ A brain scan was used to show diminished blood flow and scalloping in lobes of the brain consistent with other brain scan findings in patients exposed to neurotoxic chemicals. A peer-reviewed journal had accepted for publication a paper by an expert in this case that explained this methodology.

§ A serum test for auto-immune disorders had been made before and after the alleged exposure, showing post-exposure abnormalities, and neuropsychological testing revealed organic brain deficits consistent with toxic exposure.

§ Causes other than toxic exposure were ruled out by other diagnostic tests—an MRI of the brain, sinuses and nasopharynx, an EEG, and an assessment of peripheral sensory nerve function.

In contrast, the scientific evidence in Bradley was merely anecdotal, subjective and speculative, using untested hypotheses, with the causes of MCS still unknown. No claim of MCS was made in Hottinger; the only similarity to Bradley in the evidence of disease causation being that both relied on "temporal congruity" between the exposure to toxic chemicals and the onset of symptoms.

The Appeals Court found that Hottinger established a prima facie case, including the element of probable causation. The legal sufficiency of the evidence for causation must be given to a jury to decide, with the defendant relying on a presentation of any contrary evidence and vigorous cross-examination.

The Appeals Court sided with the Supreme Court in Daubert, 113 S.Ct. at 2794: In keeping with the liberal thrust of the Federal Rules of Evidence and their general approach of relaxing the traditional barriers to opinion testimony, Rule of Evidence 702 was more liberal with respect to the admission of evidence than the traditional "general acceptance" standard established by Frye v. United States.

This Indiana decision should help to deter other trial courts from withholding solid scientific evidence of disease causation from a jury, such as the neurotoxic effects of 2,4-D, by confusing it with much weaker evidence, as in the vaguely defined MCS disorder.

[Contributed by Wayne Roth-Nelson]

CLASSIFICATION: CIVIL LITIGATION; TOXIC CHEMICAL INJURY; ADMISSIBILITY OF EVIDENCE FOR CAUSATION

Copyright © 1999 by Tec-Com, Inc.
Last modified July 29, 1999.