Adverse Court Rulings Related to Clinical Ecology
Theories and Methodology

Stephen Barrett, M.D.

Most of these summaries were prepared with help from Timothy E. Kapshandy, J.D., a partner in the law firm of Sidley Austin (Chicago office). Mr. Kapshandy specializes in litigation involving scientific evidence, including the defense of claims from exposure to low levels of chemicals and other substances. Attorneys faced with MCS-related cases may find that the depositions and other documents in these cases helpful in defending against nonmeritorious cases of alleged chemical injury.

Bahura et al. v. S.E.W. Investors et al. The trial court judge overturned four out of five jury verdicts favoring plaintiffs in a "sick building syndrome" action brought by Environmental Protection Agency workers at the Waterside Mall Office Complex. Plaintiffs claimed to have MCS toxic encephalopathy caused by building renovations. Dr. Iris Bell's testimony on the "limbic kindling" hypothesis was excluded as unreliable. The judge noted that she had acknowledged that this was not generally accepted in the fields of psychiatry or neurology, and that low-level exposure to everyday chemicals does not cause permanent injury. [No. 90-CA-10594, District of Columbia Superior Court, Nov. 29, 1995]

Benney v. Shaw Industries, Inc. The court excluded the opinion of Dr. Hildegarde Staninger that plaintiff's MCS was caused by carpeting and a "bug bomb" as his methodology was unreliable. The court also excluded as unreliable the testing of Dr. Alan Broughton's laboratory as not the type reasonably relied upon by experts in the field. [No. 93-685-CIT-T-21(A), Middle District, Florida, 1995]

Bernardoni v. The Industrial Commission. The Illinois Court of Appeal upheld a lower court ruling against a womn who had claimed to develop chemical sensitivity while working for a chemical company. The Industrial Commission found that, even if Bernardoni's current condition of ill-being was causally related to her work environment, there was no basis for awarding permanent total disability benefits. The courts excluded expert testimony from Marsha Vetter, M.D., Ph.D. that Bernardoni was suffering from MCS. The Appeals Court ruled that, "Because the prevailing view is that the medical community has yet to accept MCS as a clinically valid diagnosis, the Commission properly excluded Dr. Vetter's testimony." [No. 3--05--0226WC, Illinois Appelate Ct., Third District, 205]

Bloomquist v. Wappello County at al. The judge overturned a $1,000,000 verdict for two employees of a "sick building," ruling that plaintiffs' clinical ecology evidence was "unproven medical speculation which is not accepted by mainstream medicine." [Mahaska City, Iowa, Dist. Ct. No. CL0174-0687 [Aug 28, 1990] The lowa Supreme Court later reversed the judge's ruling, holding that epidemiologic evidence was not required. [No. 419/90-1371, lowa Sup. Ct., April 21, 1993]

Bradley v. Brown. Two federal courts excluded testimony of Drs. William Rea and Alfred Johnson. The trial court found their methodology anecdotal and speculative. Regarding the general concept of MCS, the court held that scientific knowledge about its etiology has not progressed from hypothesis to knowledge capable of assisting the jury. [No. CIV-H85-958, 1994 WL 199827, Northern District, Indiana, May 17, 1994) affirmed, No. 94-2467, 7th Circuit, Dec 13, 1994]

Brandon v. First Republicbank Group Medical Plan. A federal judge ruled that the services of clinical ecologists Drs. William Rea and Alfred Johnson were not medically necessary and therefore not coverable under an employee welfare benefit plan. [No. CA-7-89-002 (Northern District, Texas, Nov 27, 1990]

Brown v. Shalala. An administrative law judge ruled that the plaintiff was not entitled to Social Security disability benefits because her diagnosis of environmental illness, using techniques such as sublingual testing, was not based on medically acceptable clinical and laboratory techniques. The ruling was upheld on appeal by both the federal court and the federal court of appeals. [15 F.3d 97, 8th Cir. 1994]

Carlin v. RFE Industries et al. The judge excluded the testimony of Drs. James Miller and Michael B. Lax that plaintiff had MCS from exposure to solvents used in the manufacture of circuit boards. The court held that the diagnosis was not based on reliable methods and that the general validity and etiology of MCS had not been established. [No. 88-CV-842, Northern District, New York, Nov. 27, 1995]

Carroll v. Litton Systems. A federal judge excluded the lymphocyte testing and autoantibody testing of Dr. Alan Broughton as lacking a proper factual basis (i.e., no proper controls; alternative causes not excluded). [No. B-C-88-253, Western District, North Carolina, October 29, 1990] The judge's ruling was reversed on other grounds. [No. 92-2219, 4th Circuit Jan 13, 1995]

Carroll v. Marion County Board of Education. A state jury sided with the defense in one of several cases brought by families who sued for students' alleged long-term exposure to pesticides. The judge precluded clinical ecologist Grace Ziem, M.D., from testifying that the plaintiff's son suffered from MCS. The judge said: (1) MCS did not pass the "good science" test, (2) the diagnosis of MCS had been almost universally rejected by the medical and scientific community, and (3) the methodology supporting MCS was "somewhat suspect." [No. 92-C-196, W. Va Cir., Marion Co., Div 1.]

Cavallo v. Star Enterprise et al. Plaintiff claimed that she had chronic respiratory illnesses through exposure to aviation jet fuel (AvJet) while walking across a parking lot of a restaurant about 500 feet way from a distribution facility where a 34,000-gallon spill had taken place. The court concluded that the opinion of plaintiff's expert Dr. Joseph Bellanti were largely based on hypothesis and speculation. In granting summary judgment, the judge stated: "It may well be that AvJet spill forever 'sensitized' Ms. Cavallo to petroleum vapors and various household chemicals. But the published scientific literature and test results simply do not support that conclusion at any time." [No. 94-1499-A, Eastern District, Virginia, 1995]

Claar et al. v. Burlington Northern Railroad. Six plaintiffs were selected from 27 cases of railroad workers filed under the Federal Employees Liability Act (FELA) suffering from unspecified multiple chemical exposures. The U.S. District Court of Montana provided summary judgment for the railroad because plaintiffs' experts (Drs. Mark Hines and Richard Nelson) had failed to adequately explain the bases of their MCS diagnoses, specify which chemicals caused which injury, or rule out other possible causes. Plaintiffs argued that the court had erred in demanding that their experts demonstrate a causal connection between specific injuries and specific chemicals. The appellate court upheld the lower court, stating: "This argument misconceives both the standards for causation under FELA and its relationship to the Federal Rules of Evidence." [No. 92-35337, 92-35539, U.S. District Court, Montana; 9th Circuit Court of Appeals, July 14, 1994]

Conradt v. Mt. Carmel School Fireman's Fund Insurance Commission. The Wisconsin Court of Appeals upheld the Labor and Industry Review Commission's denial of plaintiff's claim (based on the opinion of Dr. Theron Randolph) that building materials at the school where she worked had caused her to develop MCS. The appeals court rejected claimant's contention that her treating physicians should be accorded more credibility than employer's experts. [No. 94­2842, Wisc. App. 2nd Dist. Sept 27 1995]

Firstenberg v. Monribot and Leith. The plainitff claimed to have health problems triggered by exposure to elecromagnetic fields generated by his neightbor's electrical equipment (cordless telephones, computer equipment, wi-fi routers and modems, dimmer switches, etc.). The court concluded that court that "electromagnetic sensitivity" is not a scientifically recognized disease, excluded the testimony of Raymond Singer, M.D. and Erica Elliott, M.D., and dismissed the case. [No. D-101-CV-2010-00029, New Mexico 1st Dist, Santa Fe County, Sept 18, 2012]

Hundley v. Norfolk & Western Railway Co. The court excluded the opinions of Drs. Rea and Johnson that plaintiff's one-time exposure to herbicides at a railyard was the cause of his MCS. [No. 91C 6127, N.D. Ill. Jan 31, 1996]

Kuehm v. Hearnen Air Conditioning. Plaintiff brought a "sick building syndrome" case alleging mite and fungal allergies due to a defective ventilation system. The trial court summarily dismissed the case, holding that her experts' speculation about conditions four years previous were not competent evidence. [No. A-4289-93T3, N.J. Super., App. Div., July 13, 1995]

La-Z-Boy Chair Co. v. Reed. The U.S. Court of Appeals for the Sixth Circuit affirmed the trial court's decision to bar the testimony of plaintiff's clinical ecologist, Fred Furr, M.D., that plaintiff was permanently disabled as a result of exposure to trichloromethane at work. The court held that such testimony was "only a theory which is not generally accepted by the medical profession." [No. 90-6013, 6th Circuit, June 28, 1991]

Maritime Overseas Corp. v. Ellis. The Texas Court of Appeals reversed the $12.6 million judgment for a plaintiff who alleged that a one-time exposure to diazinon had caused delayed neurotoxic effects. The appeals court held that the methodology of plaintiff's experts (Drs. Alfred Johnson, F. Waiksman, and R. Austin) was speculative and not sufficiently validated to establish a causal connection. [No. C14-91-00795-CV, App. 14th Div., Texas, Dec 31, 1992]

Mason et al. v The Home Depot U.S.A. The trial court excluded the testimony of Grace Ziem, M.D. after concluding that her methods were based only on her own experience and opinions, without any support in published scientific journals or any reliable techniques for discerning the behaviors and effects of the chemicals contained in Varathane. [283 Ga. 271, 658 S.E.2nd 603, upheld on appeal, March 10, 2008]

Donald and Susan Maxwell v. Sears, Rosebuck & Co. et al. Despite testimony by Alan Lieberman, M.D., Albert Robbins, D.O., and Susan Franks, Ph.D., the judge concluded that "multiple chemical sensitivity is a theoretical hypothesis lacking sufficient scientific proof." Ruling that trial court must follow the "general acceptance" test set forth in Frye v. United States, the judge ordered all parties not to refer to MCS during the trial. [No. CA 94-0156, Fla. Cir., Manatee Co.]

Mullenax v. McRae's. The Mississippi Workers' Compensation Commission denied a claim that MCS that workplace exposure to solvents in art supplies had caused MCS. The Commission concluded that the unorthodox methodology of Dr. William Rea did not establish causal connection, and that even if they were to accept the theory that exposure to one chemical can cause multiple chemical sensitivities, other legitimate explanations were not excluded. [No. 87-13915-D-3130, Mississippi Workers' Compensation Commission, March 18, 1993]

Nethery v. Servicemaster Co. The trial court excluded the testimony of Drs. Thomas Glasgow and Alan Lieberman, holding that MCS is an "unproven theory." [No. 92-167(G)(L), Miss. Cir Ct., Lee Co., Feb 15, 1996]

Newman v. Stringfellow. The trial court ruled that plaintiff's immune assays, including calla and porphyrin antibody testing, performed by Dr. Bertram Carnow, were inadmissible because plaintiff failed to prove that the testing was "acceptable to at least a substantial minority of the relevant scientific community." [No. 165994, California Superior Court, Riverside County, Jan 17, 1991]

In Re Paoli R. R. yard PCB Litigation. The 3rd Circuit upheld the exclusion of the causation opinion of Dr. Janette Sherman for those plaintiffs on whom she did not perform the traditional clinical method (i.e., exam, history, etc.), but allowed it for those on whom she did. The court also excluded the immunological testing of Dr. Alan Broughton. [35F. 3rd 717, 3rd Circuit, 1994]

Phillips v. Velsicol Chemical Corporation. Plaintiff, a percussionist with the Hong Kong Philharmonic Orchestra, alleged MCS symptoms had resulted from a single pesticide exposure in a concert hall. The court excluded screening tests performed by Dr. Robert K. Simon of Accu-Chem Laboratories because they were scientifically unreliable and not trustworthy and failed to follow established protocol. Dr. William Rea's opinion regarding the harmful effects of chlordane on the plaintiff by "double-blind" tests were deemed irrelevant for lack of specifically identifying chlordane in the alleged incident in the concert hall. [No. 93-CV-140-J, District of Wyoming, Sept 19, 1995]

Rea v. Aetna Life Insurance Co. A federal judge rejected plaintiff's attempt to bring a class action on behalf of clinical ecologists and their patients against Aetna and the American Academy of Allergy and Immunology, holding that plaintiffs failed to establish that clinical ecologists and their patients were a "recognizable and identifiable class." [No. 3-84-0219-H, Northern District, Texas, Feb 25, 1985]

Rutigliano v. Valley Business Forms. The court excluded the opinion of Elaine Panitz, M.D., and Thaddeus J. Godish, Ph.D., that exposure to carbonless paper had made plaintiff sensitive to formaldehyde. The court noted that Panitz was basically a full-time witness who made her diagnosis after an initial visit, based on self-reported symptoms and history. The court also rejected her reliance on blood tests, done in Dr. Alan Broughton's lab, which she had accepted if supportive but dismissed if negative. [No. 90-1432, D.N.J. June 27, 1996]

Sanderson v. International Flavors and Fragrances et al. A federal judge summarily dismissed plaintiff's claim that exposure to perfumes and colognes over an 18-month period has caused her to develop MCS, toxic encephalopathy, and impairment of her sense of smell. The court held that the testimony of Drs. Nachman Brautbar, Gunnar Heuser, Richard Perillo, and Jack Thrasher were not sufficient to establish that her symptoms were caused by defendants' fragrance products. The judge also ruled that the plaintiff had failed to demonstrate that MCS is "good science." [No. CV-95-3387, Aug 28, 1996 C.D. Cal.]

Schickele v. Rhodes. The court excluded the testimony of clinical ecologist Alan Levin, M.D., suggesting "immune dysfunction." [No. C 451843, Arizona Superior Court, Maricopa County, Aug 1, 1986]

Sterling v. Velsicol Chemical Corp. The U.S. Court of Appeals for the 6th Circuit excluded from evidence the clinical ecology testimony of Dr. Alan Levin as generally unaccepted, based in part on the position papers of the American Academy of Allergy and Immunology and the California Medical Association, and reversed an award of damages for injuries to plaintiff's immune system. [855 F. 2d 1188, 6th Circuit, 1988]

Summers and Potts v. Missouri Pacific Railroad System. Railroad employees alleged they had developed chemical sensitivity and brain damage from short-term exposure to diesel exhaust fumes. The court excluded Dr. Alfred Johnson's testimony on the basis that the MCS hypothesis was unproven. The court also found his efforts to distinguish plaintiff's alleged "chemical sensitivity" from what was formerly called "multiple chemical sensitivity" unpersuasive. The testimony of psychologist Susan Franks, Ph.D. was also excluded. [No. 94-468-P, U.S. District Court, Eastern District, Oklahoma, Aug 25, 1995]

Taylor v. Airport Transport and Warehouse Services, Ltd. A British court rejected the claim of plaintiff's clinical ecologist that her multiple chemical sensitivity was triggered by exposure to chemical fumes in a truck she was driving, holding that "her evidence was in many respects bizarre and unscientific . . . [and] unacceptable to the vast majority of doctors." [No. 90/NJ/5076, High Court of Justice, Queen's Bench Division Oct 24, 1991]

Valentine v. Pioneer Chlor Alkali. Plaintiffs alleged that they suffered neuropsychological injuries from chlorine gas. The court excluded the testimony of Drs. Kaye Kilburn, Gunnar Heuser, and William Spindell as "novel" and "unsupported by research extraneous to the litigation." Although a study by Kilburn had been published in a peer-reviewed journal, the court distinguished "editorial" peer review from "true peer review" and concluded that Kilburn's study suffered from "very serious flaws." [No. CV-S-92-0887-ECR, D. Nev. April 12, 1996]

This page was revised on September 22, 2012.

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