Adverse Court Rulings Related to Clinical Ecology
Theories and Methodology
Stephen Barrett, M.D.
There is now a clear consensus of judicial opinion that the diagnosis and concepts of multiple chemical sensitivity (MCS) have no scientific basis and that expert testimony based on such concepts should not be permitted. Some plaintiffs have attempted to get around this by labeling the patient's condition as something else, but courts have excluded such testimony as well.
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 the depositions and other documents in these cases helpful in defending against nonmeritorious cases of alleged chemical injury. The full text of many of these opinions can be located by searching with Google.
Abrams v. Related, L.P. et al. A New York appeals court upheld dismissal of Plaintiff's toxic tort claim because he failed to establish a causal link between chemical exposure and his symptoms. [2016 BL 91070 (N.Y. App. Div. March 24, 2016)]
Alder v. Miles, Inc. The trial court granted defendants' motion for summary judgment after excluding plaintiff's testimony on MCS. The court held that the evidence was not based upon inherently reliable scientific or medical foundation as required under Utah Rule of Evidence 702. [No. 950907675 (Utah Dist. Ct., 3d Dist., Salt Lake Co. Oct. 4, 2000)]
Anello v. Shaw Industries. Court excluded evidence of MCS and related testimony as well as proposed expert testimony of Drs. Kenneth P. Reed and Wayne K. Way. [No. 95-30234-FHF (D. Mass. Mar. 31, 2000)]
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]
Banks v. IMC Kalium Carlsbad Potash Co., and Crawford & Co. Potash Com., WCA No.: 98-08185, New Mexico (Banks). (Exhibit 24). Dr. Ross was again discredited by the New Mexico Worker's Comp. The Commission in its Proposal for Decision ("PFD"). The important findings articulated in Banks PFD is that it virtually mimics every aspect of the case at bar as they related to issues with Dr. Rea's diagnosis, findings, testing, diagnosis, exposure, and causation.
Bauman v. Virginia Retirement Sustem. The Virginia Court of Appeals upheld the lower court's finding that claimant was not disabled by MCS from art supplies. The lower court had rejected the testimony of Grace Ziem, M.D. and held that MCS was not accepted as an organic disease. [No. 1194-99-4 (Va. App. Aug. 29, 2000]
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 woman 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]
Breen and Carrasco v. Carlsbad Mun. Schools. Plaintiffs claimed MCS from fume exposure during renovation activities. The Commission excluded the evidence of Dr. William Rea as his treatment was neither reasonable nor necessary. Moreover, the court held that Rea's treatment "in point of fact ... has proven to be counterproductive and deleterious for treatment of the worker's conditions." [Nos. 97-01218, 97-14745 (N.M. Workers Comp. Admin. June 29, 1999), affd, No. 20,833 (N.M. Ct. App., Dec. 2, 1999)]
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]
Canavan v. Brigham and Williams Hosp., Inc. The Massachusetts Supreme Court reversed the holdings of the trial court and lower appellate court that the testimony of N. Thomas LaCava, M.D., be admitted. LaCava concluded that the plaintiff suffered from MCS and organic brain syndrome as a result of operating room exposures to ethylene oxide, formaldehyde and cleaning solutions. The court, following Kumho Tire, held that all experts including clinicians must meet Daubert. The court found there was no evidence that LaCava's methodology was reliable and that LaCava failed to consider and rule out other factors. [No. SJC-08226 (Mass. Sup. Ct. Aug. 18, 2000)]
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]
Coffey v. County of Hennepin. This federal trial court excluded the testimony of Dr. William Rea about MCS holding that federal courts do not consider MCS a scientifically valid diagnosis. [23 F.Supp.2d 1081 (D.Minn. 1998)]
Coffin v. Orkin Exterminating Co., Inc. Citing the Frank and Summers cases, the court concluded that "the evidence of MCS is too speculative and unreliable to meet the requirements of Daubert" and excluded the proposed testimony of David L. Phillips II, M.D. The judge noted that although Phillips had used the terminology "hypersensitivity to volatile organic compounds" or "hypersensitivity to VOC's," it is clear that he was referring to the syndrome more commonly known as MCS. Phillips. [20 F. Supp. 2d 107 (D. Me. 1998)]
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 neighbor's electrical equipment (cordless telephones, computer equipment, wi-fi routers and modems, dimmer switches, etc.). The court concluded 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]
Frank v. State of New York. In this Americans with Disabilities Act action, three plaintiffs filed separate suits alleging they had become sensitized as a result of a pesticide application and were wrongfully terminated from their jobs. Holding that MCS had failed to meet the Daubert tests of "testability,'' peer review, and general acceptance, this federal court excluded the testimony of twelved proferred experts on MCS. Michael Lax, M.D., Eckardt Johanning, M.D. Carol Burgess, M.D., Mark Schimelman, M.D., and Stuart Erner, M.D. had been offered to testify that one or more of the plaintiffs had MCS. Two other medical doctors (Orgel and Lovejoy) had been offered to testify to the same effect but did not use the term "MCS." Psychologists Charles Golden, Joan Gold, Maria Lifrak, Louis Calabro, and David Horenstein had been offered to testify that mental impairment suffered by the plaintiffs was due to chemcial exposure. [No. 95-CV-399 to 95-CV-401,(July 12, 1997 N.D.N.Y.]
"G" et al v. The Fay School and Robert Gustavson. Plaintiffs, whose son had been diagnosed with "electromagnetic hypersensitivity," alleged that the Fay School had violated the Americans with Disabilities Act by failing to remove their wi-fi system. The court excluded expert testimony by Jeanne Hubbuch, M.D. but said it would permit testimony by two other proffered experts. However, it subsequently dismissed the entire case after concluding that plaintiffs could not establish that the wi-fi system was the sole cause of the boy's symptoms. [No 4:14-cv-10016, D. Mass., June 8, 2018]
Gabbard v. Linn-Benton Housing Authority, Wroncy v. Oregon Department of Transportation. Plaintiffs alleged that they were "disabled" under the Americans with Disabilities Act as they had MCS and their landlord's use of chemicals around their apartment violated the ADA. The trial court ruled that the diagnosis of MCS did not pass scientific muster and would not be admitted into evidence under the Daubert standard. [Nos. 01-6316, 99-66092, D. Ore.; 219 F. Supp. 2d 1130 (D. Or. 2002) July 31, 2002]
Goeb v. Tharaldson. This trial court excluded the testimony of Drs. Janette Sherman and Kaye Kilburn that plaintiffs chemical and peripheral neuropathy were caused by pesticide exposure. The court held that the experts' methodologies were flawed for, among other things, failing to consider pre-exposure medical records, failing to exclude other causes, and failing to consider no observable effect levels. The court held that "a mere temporal relationship" is insufficient to find a causal relationship. [No. C3-92-602051 (Minn. Dist. Ct. Feb. 4, 1998)]
Gressel v. Ahern MacVittie & Hoffman, et al., No. CV 94-13040 (Maricopa Co., Ariz. Super. Ct. Dec. 9, 1997) (Exhibit 10). The court reasoned that the "environmental medicine" diagnosis of "toxic brain syndrome" and chronic fatigue syndrome was not "generally accepted." The plaintiff alleged that her symptoms resulted from exposure to mold in a damp school basement where she taught. The court concluded that Dr. Rea's use of provocation testing, SPECT scans, balance tests, and controversial diagnoses of toxic brain syndrome lacked sufficient controls to be generally accepted in the scientific community.
Guimond v. Fiberglas Canada, Inc., No. N/C/84/94 (Queen's Bench New Brunswick, Miramachi Dist. Jan. 21, 1999, Exhibit 23) the court dismissed plaintiff's claim that his MCS was caused by styrene exposure during his work building boats, holding that MCS theories have not been adequately tested. No. N/C/84/94, at 25. The testifying expert in that case was also Dr. Ross. In Guimond, the court dismissed plaintiff's claim that his MCS was caused by styrene exposure during his work building boats, holding that MCS theories have not been adequately tested. Id. at 25. In addition, the Court described accurately the problem that continues to plague "chemical sensitivity" to this very day, i.e., "His testimony (Dr. Ross's) is that at the present time it is impossible to predict or identify what person might have a predisposition to have a condition triggered in his or her system and in addition it is impossible to predict or identify what chemical might trigger the condition." Id. at 28.
Heller v. Shaw Industries. This federal court excluded the expert testimony that plaintiff's asthma and respiratory complaints were caused by benzene, butyl ethanol, and other VOCs in carpeting. The court held that plaintiff's physicians' opinions based upon temporality and other complaints failed to scientifically establish general causation. The physicians failed to rule out other causes, assumed the VOCs were not from other materials (e.g., household cleaners which use butoxy ethanol), and failed to cite any studies showing these levels of VOCs could cause this type of illness. The court also excluded Alan Todd's industrial hygiene "back extrapolation" method (which estimated initial levels 496 times higher than those 6 months prior) as unreliable. The method was untested for replicability, was not published or peer-reviewed, and failed to consider normal fluctuations and other variables. Furthermore, Todd failed to chamber test the samples for VOCs and admitted the results could err by 100%. [No. 95-7657 (Aug. 18, 1997 E.D. Pa.); aff'd, No. 97-1735 (3d. Cir. Feb. 3, 1999)]
Hannan v. Pest Control Services, Inc., No. 49D02-9802-CT 173 (Marion Co., Ind. Super. Ct., July 16, 1999)(Exhibit 21). An Indiana court excluded Dr. Alfred Johnson and Dr. Doris Rapp's testimony regarding chemical sensitivity. Among the numerous flaws the court found with the proposed witnesses' methodology were that they failed to identify the specific substance at issue or levels of exposure; failed to determine the dose of the exposure of each plaintiff; and failed to rule out other possible causes.
Huffman, Kennedy, Kidd, Marsh, McCaskill, Rogers, Scott v. Moore County v. Sedgwick CMS, Inc. Plaintiffs claimed exposure to toxic chemicals contained in and around the building they worked had caused MCS and/or RADS. The court rejected the testimony of William Meggs, M.D., Robert Taylor, M.D., William Bell, M.D. and Charles Lapp, M.D., holding that it was not scientifically valid. The court further stated that "Multiple Chemical Sensitivity, Sick Building Syndrome, Reactive Upper Airways Dysfunction Syndrome and Reactive Airways Disease are not diseases recognized by the technical and medical community, and, therefore, are not occupational disease within the meaning of N.C.G.S. '97-53(13)." [Nos. 480967, 564609, 500200, 481108, 481105, 924348, 509087, 521225 (N.C. Workers Comp, August 2003)]
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]
Johnson. et al. v. Baxter Healthcare Corp. This trial court excluded the plaintiffs' causation experts (Drs. Silver, Blais, O'Donnell, and Puszkin) who were tendered to testify that breast implants caused plaintiffs atypical connective tissue disease (ACTD). The Court held that ACTD was not even a hypothesis that had been subjected to peer-reviewed scientific testing. [No. CV-92-07501 (Bernalillo Co., NM Dist.Ct. Feb. 23, 1998)]
Jones v. Ruskin Mfg. A Louisiana appeals court affirmed the denial of workers' compensation benefits to a woman who claimed she contracted an occupational disease from exposure to toxic fumes in her workplace, because the evidence showed that her chemical sensitivity predated her employment. Despite the testimony of Dr. William Rea that her supposedly odor-induced "seizure-like" spells were caused by fumes at work, the trial court held her symptoms were not work-related as they predated her employment. [No. 36,548-WCA (La. Ct. App. Dec. 11, 2002)]
Kilian v. Equity Residential Trust; et al. Defendants requested an order precluding testimony of plaintiff's expert witnesses, Kaye Kilburn, Michael Gray, and David Rueckert that plaintiff's toxic encephalapathy was caused by mold. On July 27, 2004, court entered judgment for defendant after bench trial. [No. CIV-02-1272-PHX-FJM (U.S. Dist. Court, Dist. of Arizona)]
Koch v. Shell Oil Co. Plaintiff alleged injuries to himself, his family, and his dairy cattle from defendant's larvicides. The court excluded, under Daubert, the testimony of Drs. Gunnar Heuser and Aristo Vojdani that plaintiffs had immune dysfunction from the larvicide. The court found that Heuser's failure to see the patients before writing his report, his failure to consider alternative causes, and his lack of information on level of exposure rendered his opinion speculative and unreliable. [49 F.Supp.2d 1262 (D.Kan. May 4, 1999)]
Korte v. Exxon Mobil Coal, The proposed testimony of Dr. Peter Orris, M.D. who concluded that dust from coal refuse disposal areas caused a couple's allergy-like symptoms was properly excluded because he had failed to conduct any tests or to rule out other possible causes. [No. 05-1168 (7th Cir. Jan. 6, 2006)]
Kropp v. Maine School Administrative Union #44. The court excluded proposed testimony of pediatrician Linda Glass, M.D. that a patient suffered from "phenol hypersensitivity." The judge agreed that Dr. Glass's opinion regarding phenol sensitivity was "simply a diagnosis of 'multiple chemical sensitivities' repackaged as a hypersensitivity to a single, ubiquitous chemical." [Case 2:06-cv-00081, D Maine, 2007]
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]
Mancuso v. Con Ed. This federal court excluded the testimony of Dr. Howard Schwartz that plaintiffs "sensitization syndrome" was caused by PCBs. The court questioned Schwartz's expertise in PCBs (due to his reliance upon plaintiffs counsel to furnish him scientific literature) and held, that even assuming he was competent to testify regarding PCBs, his methodology was fundamentally flawed. He made no serious attempt to evaluate dosage but merely assumed sufficient dosage given the ailments. [No. 93 Civ. 001 [WCC] (July 2, 1997 S.D.N.Y.)]
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.]
McNeel v. Union Pacific RR Co. The Court excluded the opinions of plaintiffs' experts Rea, Simon, and Didriksen, who alleged that plaintiff had toxic encephalopathy based upon SPECT scans. The Court found the foundation "shaky but admissible" but then went on to exclude their opinions as irrelevant for failing to connect them to exposures at plaintiff's job. "Such a conclusion does not attain admissibility just because it bears the label of 'differential diagnosis'." [No. C102-136, Order on Motion in Limine (D. Neb, Oct. 19, 2006)]
Minner v. American Mortgage & Guaranty Co. Three plaintiffs claimed a variety of conditions—sick building syndrome, multiple chemical sensitivity, toxic encephalopathy, chronic fatigue syndrome, RADS, and fibromyalgia—from employment at defendant's building. Plaintiff enlisted a half-dozen experts, including Drs. Grace Ziem and Marilyn Howarth. The court held that SBS and MCS were not medically valid diagnoses. The court also held that Ziem's CFS and FM diagnoses were not scientific, given her failure to eliminate alternative causes. However, the court did permit her to testify about TE and RADS. [No. 96C-09-263-WTQ. Order on motions in mimine (April 17, 2000, Del. Super., New Castle Co.)]
Mullenax v. McRae's. The Mississippi Workers' Compensation Commission denied a claim 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]
North Dallas Diagnostic v. Dewberry, 900 SW2d 90, (Tex. App.-Dallas 1995), (Exhibit 22) the court held that Dr. Ross's intradermal testing (this is the same type of testing Dr. Rea used in the five patients involved in his SOAH case) was not proven valid and well-grounded under Daubert. Exhibit 15 at 96. This case is important because Dr. Ross is one of Dr. Rea's experts, and this strike against Dr. Ross occurred while he was an employee of EHC. Id. at 3, 4, 6.
Oppenheimer v. United Charities of New York. Plaintiff alleged MCS due to a leaking toilet. The court excluded the testimony of William Rea, M.D., as untested and not generally accepted and granted defendant's motion for summary judgment. [No. 121185/94 (Sup.Ct. N.Y., N.Y. Co., Dec. 23, 1998)]
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]
Reiter v. 3M Co. et al. This New Jersey trial court excluded the testimony of Grace Ziem, M.D., and Hildegarde Staninger, Ph.D., based upon the immunological testing of Antibody Assay Laboratories ("AAL") and Immunosciences Lab ("IL") that plaintiff had MCS and RADS as a result of low level short-term exposure to 1,1,1-trichlorethane, formaldehyde, and Dursban. The court held that whether the Social Security Administration had recognized MCS as a disorder under the ADA was not relevant to the issue of individual causation. In assessing the reliability of the testing, the court looked to general acceptance in (1) the profession; (2) authoritative texts; and (3) judicial opinions. After noting the inconsistencies in the AAL and IL results, absence of exposure information, and failure to exclude other causes, the court excluded the opinions as unreliable. [No. JNN-L-8504-92 (April 30, 1998 NJ Super. Ct., Union Co.), affd No. A6686-97T3 (N.J.App. Jan.18, 2000)]
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.]
Schepise v. Saturn Corp. Plaintiff alleged MCS-type symptoms from formaldehyde supposedly released from plastics in a new car. The court excluded the testimony of Elaine Panitz, M.D., on causation due to her lack of expertise in polymer chemistry and inability to establish exposure to certain levels of formaldehyde. Citing Rutigliano, the court held that both Panitz's general and specific causal conclusions were unreliable. The court also noted the absence of peer-reviewed studies on the subject. [No. 94-385 (MLP) (July 30, 1997 D.N.J.)]
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]
Skoogfors, et al. v. Haverstick-Borthwick Co., et al. This Pennsylvania trial court excluded the MCS and toxic chemical encephalopathy ("TCE") testimony of Michael LeWitt, M.D., that plaintiffs were injured from fumes during a library renovation at Bryn Mawr College. The court held that TCE was not a generally accepted disease and that Dr. LeWitt had failed to rule out other causes or determine exposure. The court ruled that temporality and plausibility were not alone sufficient to establish causation. [No. 93-23217, Order granting motion in limine (Ct. Comm. Pleas, Mont. Co., Penn., Jan. 13, 2000)]
Patti Wiles Smith v. Grand Blanc Community Schools and Home Insurance Company. Plaintiff was a teacher at the Grand Blanc Community Schools who claimed permanent medical disability due to alleged exposure to chlorine in the school swimming pool area and adjacent classrooms. The court rejected the testimony of her clinical ecologist, Paula Davey, holding "as a matter of law as well as fact . . . that there is no scientific basis for the cult calling itself 'Clinical Ecology.'" The court was critical of Davey's failure to do a physical exam of plaintiff and of a suggestive questionnaire "prepared by the medical cult's founder, Theron G. Randolph, MD." [No. 363-68-9260, 1989 WCABO 786 (Mich. Workers Comp. Bd. Appeal May 31, 1989)]
Snyman v. W.A. Baum Co., Inc. The court dismissed all claims related to multiple chemical sensitivity. [04 Civ 2709 No.(LT)(DFE). (S.D. N.Y. 12-22-2008)]
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]
Treadwell v. Dow-Limited Technologies et al. This federal court excluded the testimony of Dr. Andrew Brown that plaintiff suffered from MCS as a result of exposure to a phenol-formaldehyde epoxy holding that MCS etiology and clinical ecology treatments have not been reliably validated. (He was allowed as her treating physician to testify as to her formaldehyde sensitivity and its probable cause.) The case went to the jury on plaintiffs ADA claims and the jury found plaintiff had no impairment. [No. 95-D-598-N (March 21, 1997 N.D. Ala. No.Div.)]
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]Variale et al. v. American Honda Motor Co. Plaintiff was the driver in an auto accident in which the airbag allegedly released a plume of smoke and powder. The plaintiff claimed RADS, vocal cord dysfunction, sleep apnea and depression as diagnosed by physicians at the National Jewish Medical Center. Defendant contended that the air bag released harmless nitrogen gas and talcum powder. The jury returned a unanimous verdict for the defense, and the plaintiff was ordered to pay more than $500,000 in attorneys fees and costs due to an "offer of judgment" statute in Nevada. [No. A-432577 (Nev. Dist. Ct., Clark County Feb. 9, 2005)]
Weaver v. Shoals Pest Control. Plaintiff's alleged various conditions and complaints including peripheral neuropathy from organophosphate exposure. The court excluded the testimony of Drs. Kaye Kilburn and Janette Sherman under Daubert and further held them unqualified in the fields of neurology and neuropsychology. [No. 92-000287 (Lauderdale Co., Ala. Cir. Ct., Aug. 25, 1999)]
Williams v. Mead. This federal trial court excluded the testimony of Dr. Peter Orris that plaintiffs alleged hypersensitivity pneumonitis was caused by cashew oil based, among other things, on the absence of any literature reports showing a relationship and Dr. Orris' admission he did not investigate and rule out other causes. [No. 94 C 5823 (June 6, 1997 N.D. Ill)]
Zwillinger v. Garfield Slope Housing Corp., et al. Order Granting Summary Judgment, 1998 WL 62589 (E.D.N.Y., Aug. 18, 1998) The court excluded the testimony of plaintiff's MCS expert who opined that her skin, neurological, and GI symptoms were caused by 4-PC from new carpeting. The court held that Dr. Michael Gray's opinions both on the general question as to whether MCS has been scientifically validated and the individual causal issue as to whether plaintiffs symptoms were caused by 4-PC did not pass muster under Daubert. [No. 94 CIV 4009].
This page was revised on October 5, 2018.