CALABRESI, Circuit Judge:
BACKGROUND
I. Investigation and Arrest
In June 2008, customs officials discovered cocaine in a package addressed to "Andino Jose" at "1474 Bryant, A2, Apt Basement, Bronx, NY 10460." The package was redirected to the New York City office of U.S. Immigration and Customs Enforcement, where agents prepared it for a controlled delivery to Andino, the Defendant-Appellant in this case. The agents opened the package, replaced the cocaine with a look-alike substance, resealed the package, and sent it on its way.
The controlled delivery occurred on June 23, 2008. A postal inspector disguised as a mail carrier delivered the package to 1474 Bryant, where he left the package with a woman claiming to know Andino. The woman then called Andino and informed him of the package's arrival.
Andino showed up a few minutes later. He entered the building, picked up the package, and transported it to an adjacent building (1472 Bryant), where he left it unopened. He then exited 1472 Bryant, at which point he was arrested.
In custody, Andino confessed that a man going by the name of "Mikey" — whom agents later identified as Keithroy Davis — had instructed him to receive the package and to transport it to 1472 Bryant, promising to "take[] care of Andino if he agreed to do so. Andino also confessed that he was aware that the package contained drugs, but maintained that he believed the drugs to be marijuana rather than cocaine.
II. Proceedings Below
Andino and Davis were indicted together on one count of conspiring to distribute, and to possess with intent to distribute, 500 grams and more of cocaine, in violation of the Controlled Substances Act. Specifically, the indictment alleged that Andino and Davis "unlawfully . . . conspire[d] . . . to violate the narcotics laws of the United States," and that "[i]t was a part and an object of the conspiracy that [Andino and Davis] would and did distribute and possess with intent to distribute a controlled substance, to wit, 500 grams and more of . . . cocaine . . . in violation of Sections 812, 841(a)(1), and 841(b)(1)(B) of Title 21, United States Code." J.A. 9. Davis pleaded guilty on April 24, 2009; Andino took his case to trial.
Prior to Andino's trial, Andino and the government proposed jury instructions to the District Court. Among other things, the submitted instructions differed on the scienter element of the conspiracy charge. On the government's instructions, the jury did not need to find that Andino "knew that the conspiracy involved cocaine in particular." Rather, it could establish guilt if it found "that he knew that [the conspiracy] involved any controlled substance." S.A. 35 (emphasis added). On Andino's instructions, by contrast, the jury had to find that Andino "had an understanding of the unlawful purpose of the plan, including the nature and anticipated weight of the substance involved." S.A. 14.
The first discussion of the scienter issue occurred early in the trial. Andino pointed to our decisions in United States v. Santos, 541 F.3d 63, 70-71 (2d Cir. 2008), and United States v. Adams, 448 F.3d 492, 499-500 (2d Cir. 2006), which he characterized as holding that "[a] conspiracy charging an enhanced quantity of a controlled substance . . . requires knowledge or reasonable foreseeability of the type and quantity of the substance whose distribution was the object of the conspiracy." S.A. 71-72. The government responded that Andino's proposed rule ran afoul of "[t]he established law of the Second Circuit, as well as the law of every other Circuit that has addressed this question." S.A. 80. Appearing to agree with the government, the district judge expressed her view there was "a ton of case law that says if he thought it was heroin and it turned out to be cocaine, or the reverse I guess which is more serious, he is stuck." J.A. 166. But she did not decide the issue.
The question resurfaced at the close of the government's case, when Andino moved for acquittal under Federal Rule of Criminal Procedure 29. Andino's counsel stated that the government had at most proven that Andino "believed that there was marijuana in the package," which given what he claimed to be the applicable scienter standard, was insufficient to sustain a conviction on the conspiracy charge. J.A. 380. The District Court denied the motion, stating that "the government does not have to accept, and it doesn't, that Mr. Andino is telling the truth when he said, oh, I thought it was marijuana. It could be just his second false exculpatory statement." J.A. 381.
Following the court's denial of the Rule 29 motion, it held another conference on the jury charges. On the court's new proposed set of instructions, the jury would be asked three questions:
The first is: Did the defendant enter into a conspiracy to violate the narcotics laws of the United States?
And, secondly: Did he know or reasonably foresee that the cocaine, in a sense, would be delivered?
The third: How much cocaine did he anticipate?
J.A. 389. According to this proposal, the court explained, Andino would be convicted if the jury answered "yes" to Question 1, but he would not face the enhanced penalties applicable to a cocaine-specific offense unless the jury answered "yes" to Question 2.
This time around, it was the government's turn to object. Specifically, the government expressed concern that the instructions "open[ed] up the possibility of the defendant being convicted of participating in a conspiracy to distribute a drug other than cocaine." J.A. 392. But given that the government had "allege[d] in the indictment that it is a cocaine conspiracy," a non-cocaine conviction might result, improperly, in a constructive amendment of the indictment. J.A. 392. Confronted with this possibility, the District Court withdrew the proposed instructions, stating that "[t]he government now is sort of prepared to go for the whole enchilada." J.A. 400. The government responded that it "absolutely do[es] want to go for the whole enchilada." J.A. 400.
Meanwhile, Andino requested that the court "make it clear to [the jurors that] if they find it was a marijuana conspiracy, they must acquit." J.A. 399. But the court denied the request, observing that "I don't charge theories. You can argue your theory." J.A., 412. Notably, and surprisingly, the government stated that it "welcome[d]" Andino's argument that if he "was engaged in a marijuana conspiracy, the jury should acquit." J.A. 400.
Ultimately, and despite all of the above described discussions, the court instructed the jury that the government was required to prove, first, "an agreement or understanding to violate those provisions of the law which make it illegal to distribute or possess with intent to distribute a controlled substance, namely, cocaine," and, second, that Andino "knowingly became a member of the conspiracy, that is, that he knowingly associated himself with and participated in the alleged conspiracy to distribute and possess with intent to distribute a controlled substance, namely, cocaine." J.A. 511.
III. Conviction and Appeal
The jury returned a guilty verdict, finding that Andino conspired to distribute or possess with intent to distribute cocaine in the amount of less than 500 grams. At sentencing, Andino argued for a reduced sentence on the ground that the record "really point[s] to a marijuana conspiracy." S.A. 100. The District Court rejected this argument, stating that it had "ma[d]e it very clear over and over again in the charge" that this "was a cocaine case. . . . They ha[d] to find it was cocaine." S.A. 100. The court then imposed a sentence of 48 months' imprisonment.
Andino has understandably not contested the difference between the quantity of cocaine alleged in the indictment (500 grams and more) and the quantity of cocaine for which he was convicted (less than 500 grams). Cf. United States v. Wanton, 380 F.2d 792, 795 (2d Cir. 1967) ("A variance as to quantity between the indictment and the proof is not fatal.").
Andino timely appealed his conviction to this court.
DISCUSSION
Andino challenges his conviction on two grounds. First, he argues that the evidence was insufficient to support a cocaine-specific conspiracy conviction, because the evidence showed only an intent to possess and distribute marijuana. Second, he argues that the trial court erred in refusing to issue his requested instruction to the jury — namely, that acquittal was warranted if the government failed to prove that Andino specifically agreed to possess and distribute cocaine. Both challenges depend on the premise that the government was here required to satisfy a cocaine-specific scienter burden, demonstrating not merely that Andino knowingly joined a conspiracy to possess and distribute a controlled substance, but also that he specifically conspired to possess and distribute cocaine. We conclude, however, that this premise is incorrect, and hold that, in order to satisfy the scienter element, the government was here required to prove only that Andino agreed to traffic in a controlled substance. We therefore reject both challenges and affirm Andino's conviction.
I. The Government's Scienter Burden a. The Statutory Scienter Burden
Enacted as part of the Controlled Substances Act ("CSA"), 21 U.S.C. § 841(a) provides that "it shall be unlawful for any person knowingly or intentionally to . . . distribute, or . . . possess with intent to . . . distribute . . . a controlled substance." 21 U.S.C. § 841(a)(1). And § 841(b) of that title prescribes maximum and minimum punishments depending on the type and quantity of the controlled substance involved in the offense. 21 U.S.C. § 841(b).
In interpreting § 841, we have adhered to the principle that "the government does not have to prove that the defendant knew the specific nature and amount of the controlled substance for the enhancement provisions to apply." United States v. Collado-Gomez, 834 F.2d 280, 280-81 (2d Cir. 1987) (per curiam). This result derives from "the structure and language" of the provision, which "clearly indicates that the terms `knowingly or intentionally' in § 841(a) modif[y] the conduct set forth in that sub-section of the statute, and not the penalty provisions in § 841(b)." United States v. King, 345 F.3d 149, 153 (2d Cir. 2003) (per curiam). Put another way, § 841's scienter requirement is not type-specific. To convict on charges of cocaine possession, for example, the government need not prove that a defendant knowingly or intentionally possessed cocaine; rather, it need only prove that the defendant knowingly or intentionally possessed a controlled substance that was in fact cocaine. On this point the precedents are consistent and clear.
Andino, however, was not convicted of a direct offense; rather, he was convicted under the CSA's conspiracy prohibition, which subjects drug conspirators to the "same penalties as those prescribed for the [object] offense." 21 U.S.C. § 846. In particular, the jury found that Andino conspired to violate § 841 — i.e., that he conspired to distribute or possess with intent to distribute a controlled substance — and that the conspiracy involved cocaine in the amount of less than 500 grams. As a result, Andino was sentenced pursuant to § 841(b)(1)(C), which, through § 846, establishes the penalty range for conspiracy convictions involving the relevant amount and type of controlled substance.
The question thus arises whether this statutory framework requires the government to prove that a conspiracy defendant has specific knowledge of the type and quantity of the drugs involved in the conspiracy. On this question the parties suggest — incorrectly, we believe — that our precedents are in some tension with each other. The government asserts — and Andino does not deny — that we have sometimes expressed the view that "the mens rea requirement for conspiracy is satisfied simply if the government shows that the defendant intended to distribute and possess with the intent to distribute any controlled substance." United States v. Abdulle, 564 F.3d 119, 126 (2d Cir. 2009); see also United States v. Torres, 604 F.3d 58, 65 (2d Cir. 2010) ("The knowledge of the parties is relevant to a conspiracy charge to the same extent as it may be for conviction of the substantive offense." (internal quotation and citation omitted)); United States v. Morgan, 385 F.3d 196, 206 (2d Cir. 2004) ("Here, the government had to establish to the jury's satisfaction beyond a reasonable doubt that [the defendant] knew that she was engaged in a conspiracy to import into the United States some controlled substance." (internal citations omitted)). But Andino notes that in other cases we have applied a stricter scienter burden, holding in particular that "[c]onviction of a Section 841(b)(1)(A) conspiracy. . . . require[s] proof that . . . drug type and quantity were at least reasonably foreseeable to the co-conspirator defendant." Adams, 448 F.3d at 499; see also Santos, 541 F.3d at 70-71 (citing Adams for the proposition that "in a conspiracy punishable under 21 U.S.C. § 841(b)(1)(A), the government must also prove . . . that it was either known or reasonably foreseeable to the defendant that the conspiracy involved the drug type and quantity charged"); United States v. Martinez, 987 F.2d 920, 926 (2d Cir. 1993) (similar). These seemingly mixed messages, it is said, have created significant confusion regarding the requisite scienter burden in drug conspiracy cases — confusion that assertedly was reflected in the trial proceedings in this case.
We note that Andino's decision to go to trial may have derived in part from this alleged uncertainty of our prior case law, and that a plea agreement might well have subjected Andino to a lighter sentence than the one he received at trial. Whether under the circumstances any form of relief might be available is not before us.
But whatever the tension some of the language of these cases may seem to suggest, we believe that, in context, there are no inconsistencies in the prior holdings. In fact, all of our cases accord with the rule that the government need not prove scienter as to drug type or quantity when a defendant personally and directly participates in a drug transaction underlying a conspiracy charge. See United States v. Chalarca, 95 F.3d 239, 243 (2d Cir. 1996) ("[T]he quantity of drugs attributed to a defendant need not be foreseeable to him when he personally participates, in a direct way, in a jointly undertaken drug transaction."); United States v. Oluigbo, 375 Fed.Appx. 61, 64 (2d Cir. 2010) (summary order); United States v. Wade, 217 Fed.Appx. 77, 79 (2d Cir. 2007) (summary order).
We reaffirm this rule today. Under 21 U.S.C. § 846, the government need not prove foreseeability of drug type and quantity to the extent that it seeks to hold a defendant accountable for drug transactions in which the defendant directly and personally took part. In cases like the present one, where the defendant personally and directly participated in the drug transaction underlying the conspiracy charge, the government need not prove that the defendant had knowledge of either drug type or quantity.
In this respect we note that in Adams, Santos, and Martinez — cases in which we required proof that drug type and quantity were reasonably foreseeable — the defendants did not directly and personally participate in the underlying drug transactions. See Adams, 448 F.3d at 495 (defendant recruited another individual to transport drugs on his behalf); Santos, 541 F.3d at 72 (defendant "expressed interest" in taking part in the narcotics transaction, but never had the opportunity to do so); Martinez, 987 F.2d at 922 (defendant was a "late-comer" to the drug conspiracy, and thus played no part in many of the transactions for which the government sought to hold him accountable). And in Abdulle and Morgan — cases in which we did not require proof of reasonable foreseeability as to type and quantity — the defendant's participation was direct and personal. See Abdulle, 564 F.3d at 122-23 (defendant was a passenger in the vehicle transporting drugs to a distribution center); Morgan, 385 F.3d at 198-204 (defendants personally transported into the United States packages containing ecstasy-like pills).
The record in the case before us makes clear that Andino's participation in the drug transaction was anything but peripheral, as indicated by the uncontroverted evidence (a) that the incriminating package bore his name; (b) that he physically possessed the package after it arrived at the listed address; and (c) that he transported the package to a neighboring building, where his co-conspirators later picked it up. These facts alone demonstrate that Andino directly and personally took part in the drug transaction giving rise to his conspiracy charge. Consequently, the government was not subject to the reasonable foreseeability requirement; it did not bear the burden of proving that Andino reasonably believed that the package contained cocaine; and, as to Andino's scienter, it was required to show only that Andino believed that the package contained a controlled substance of one type or another.
b. Andino's Indictment and the Government's Statements at Trial
Independent of the statutory scienter issue, Andino argues that the government here committed itself to proving cocaine-specific knowledge on Andino's part, by indicting him on cocaine-specific charges and by asserting at trial that it "absolutely [did] want to go for the whole enchilada" of a cocaine-specific conviction. To support this claim, and citing United States v. Wozniak, 126 F.3d 105, 110-11 (2d Cir. 1997), and United States v. Rodriguez, 392 F.3d 539, 545 (2d Cir. 2004), Andino contends that the government cannot secure a conspiracy conviction based on one type of drug when it alleges a conspiracy involving a different type of drug. Rather, he asserts, the government must prove that the drug in the indictment was the one actually involved in the conspiracy. But, whatever the merits of this contention, and his reliance on Wozniak and Rodriguez to support it, he misreads our case law when he further takes it to mean that the government must show type-specific scienter on the defendant's part, as a result of alleging a conspiracy involving a specific type of drug.
Andino also seeks to rely on our decision in United States v. Hassan, 578 F.3d 108 (2d Cir. 2008). Hassan arose from a conspiracy prosecution involving cathinone, which is harvested from a plant called khat and quickly decomposes into a different and less potent type of controlled substance known as cathine. The CSA designates cathinone as a Schedule I controlled substance and cathine as a Schedule IV controlled substance. Significantly, it does not designate khat as any type of controlled substance. The relationship between these three substances has given rise to various legal complications, one of which surfaced in Hassan.
We reversed Hassan's conviction on the ground that the jury instructions, combined with the testimony offered at trial, did not adequately differentiate between khat, cathine, and cathinone. In doing so, we rejected the government's claim that "Hassan could have been lawfully convicted by the jury even if the jury had found that he intended to import an illegal substance with cathine, and not an illegal substance with cathinone." Id. at 133 (emphasis in original). This argument lacked merit, we explained, because "the government conceded at trial that it was not trying an `any' controlled substance charge, but rather, was limiting itself to trying a cathinone-related charge, as listed in the indictment." Id. As a result, "[a] conviction based on cathine, rather than cathinone, would have been an impermissible constructive amendment of the indictment" and could not stand. Id. (internal citation omitted).
Read in isolation, this language might seem to support Andino's claim that the government's indictment and statements at trial gave rise to a cocaine-specific scienter burden. In context, however, Hassan supports no such claim. Indeed, Hassan itself is explicit on this point; the amended opinion takes pains to underscore its "adhere[nce] to [the] rule" that "scienter with respect to the type and quantity of controlled substance is not required to convict a defendant under the CSA." Id. at 113 n. 1 (internal quotation omitted).
What is more, Hassan involved a number of special circumstances not present in this case, including jury instructions that failed to distinguish between controlled and non-controlled substances, see 578 F.3d at 133, and our recognition that "unique" due process issues raised by the khat/cathine/cathinone regulatory scheme required us to "scrutinize the [Hassan] instructions regarding scienter . . . very closely," id. at 132. Hassan thus stands for the proposition that in drug cases based on cathinone-specific indictments, the trial court must construct especially clear and precise jury instructions. But it in no way suggests that in drug cases based on type-specific indictments, the government must prove type-specific scienter.
Accordingly, we need not consider what the government's burden would have been, in the instant case, had the indictment alleged that it was cocaine that Andino intended to distribute, or had the government elsewhere committed itself to making such a showing. Here, neither circumstance is present. Instead, the indictment alleged only that Andino "intentionally[] and knowingly . . . conspire[d] . . . to violate the narcotics laws of the United States," and that "[i]t was a part and an object of the conspiracy . . . that Andino . . . would and did distribute and possess with intent to distribute a controlled substance, to wit, 500 grams and more of . . . cocaine." J.A. 9. And at trial, the government repeatedly expressed the view that the jury could convict if it found that Andino "directly and personally participated in a transaction that in fact did involve cocaine." J.A. 401. There is, therefore, no reason in the case before us to depart from the statutory scienter rule in drug conspiracy cases, which, given Andino's personal and direct involvement in the drug transaction, required only a showing that Andino intended to distribute a controlled substance.
II. Sufficiency and Instructions Claims
Given the applicable scienter rule, Andino's sufficiency and instructions claims can be disposed of in short order.
a. Sufficiency of the Evidence
We review sufficiency challenges de novo, asking "only whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Hassan, 578 F.3d at 122 (internal quotation omitted). Andino challenges the sufficiency of the evidence only as it relates to the government's scienter burden; he does not challenge — and we therefore do not review — the sufficiency of the evidence as it relates to any other element of his conspiracy conviction.
In light of our conclusion that, to establish the scienter here, the government was required to prove only an intent to distribute a controlled substance, we find that the scienter burden was easily satisfied by Andino's admission that he thought the package contained marijuana. We therefore reject Andino's sufficiency claim.
b. The District Court's Jury Instructions
"We will vacate a conviction on account of a missing requested instruction if (1) the requested instruction was legally correct; (2) it represents a theory of defense with basis in the record that would lead to acquittal; and (3) the theory is not effectively presented elsewhere in the charge." United States v. Prawl, 168 F.3d 622, 626 (2d Cir. 1999) (internal quotation omitted).
Andino alleges that the District Court erroneously refused to instruct the jury that "it must acquit Mr. Andino if he believed he would be receiving marijuana instead of cocaine." App. Br. at 52. For reasons already discussed, the proposed charge was an incorrect statement of law, and hence fails to satisfy the first prong of the Prawl test. Accordingly, we reject Andino's challenge to the jury instructions.
CONCLUSION
We have considered all of Andino's contentions on this appeal and have found in them no basis for relief. Accordingly, the judgment of the District Court is AFFIRMED.
ed negligence.
II. Spoliation of Evidence
This case presents a close call on the issue of spoliation of evidence. The record suggests that Defendants exerted some type of undue pressure or influence on their employee, Steven Carr, to ensure that all existing copies of the photographs were surrendered to Defendants. Further, the record discloses that the photographs were transferred in some manner among Keli Carr, her husband Steven Carr, and management employees of Defendants; therefore, the photographs were possibly contained on multiple computers, digital camera memory devices, and electronic mail attachment storage files. The unexplained absence of the photographs, coupled with the testimony and computer messages of Ms. Carr, is at least questionable.
However, Plaintiff did not exhaust every available mechanism to obtain these photographs; Plaintiff did not obtain a forensic computer analysis of the computers alleged to have contained the photographs to locate the photographs. Further, Plaintiff never moved to compel Defendants' to bear the expense and complete a forensic analysis of the relevant computers. The potential of such analyses to successfully retrieve the photographs cannot be definitively ascertained from the present record, but Plaintiff concedes that no attempts to evaluate the relevant electronic devices were made. Plaintiff has established an inadequately explained, perhaps even suspect, unavailability of the photographs. However, this does not satisfy the intentional or reckless standard necessary for spoliation of evidence, and the record suggests that these photographs might have been obtainable by Plaintiff. Thus, Plaintiff has not carried her burden of establishing the intentional or reckless destruction or suppression of evidence and is consequently not entitled a default judgment or adverse inference instruction against Defendants.
Although the reasons for Plaintiff's failure to pursue a forensic computer analysis are not entirely clear, it may be due, at least in part, to practical or economic factors. At oral argument, Plaintiff's counsel noted that "in cases like this, lawyers who represent injured people have to make decisions sometimes based on the economy of the case. . . ." Tr. at 34.
On the present record, this Court cannot determine if, on motion by Plaintiff, Defendant would have been required to incur the unknown expense of a forensic computer analysis.
Tr. at 7.
See, e.g., Beard Research, Inc. v. Kates, 981 A.2d 1175, 1191 (Del. Ch. 2009) ("It is not enough that the `absence of evidence is not adequately explained.'") (citation omitted).
III. Res Ipsa Loquitur
A. The Doctrine of Res Ipsa Loquitur is Inapplicable.
As previously noted, the applicability of res ipsa loquitur requires the following four elements be satisfied:
(1) The accident must be such as, in the ordinary course of events, does not happen if those who have management and control use proper care; and
(2) The facts are such as to warrant an inference of negligence of such force as to call for an explanation or rebuttal from the Defendants; and
(3) The thing or instrumentality which caused the injury must have been under the management or control (not necessarily exclusive)
of the Defendants or his servants at the time the negligence likely occurred; and
(4) Where the injured person participated in the events leading up to the accident, the evidence must exclude his own conduct as a responsible cause.
It is true that wall mounted sinks should not suddenly fall in the ordinary course of events, and Defendants, as the property managers for the rental complex, exercised management and control of the sink. Critically, however, Plaintiff's motion for an adverse inference instruction has now been denied; as a result, Plaintiff has no evidence of Defendants' negligence. The sole fact adduced by Plaintiff is the sink's fall; even if this should not happen in the ordinary course of events, this singular fact does not "warrant an inference of negligence of such force as to call for an explanation or rebuttal from the Defendants."
D.R.E. 304(b)(2).
Further, as detailed in the foregoing sections, the record contains evidence that suggests Plaintiff was standing on the sink at the time of the accident. Even viewed in the light most favorable to Plaintiff, the evidence is in conflict as to whether the sink simply fell, or if Plaintiff was standing on the sink in an effort to place border paper on the bathroom wall. As noted in American Jurisprudence:
If the facts and circumstances of the occurrence give rise to conflicting inferences, one leading to the conclusion of due care and the other to the conclusion of negligence, the doctrine does not apply. . . . Where there is no direct evidence of how an accident occurred, and the circumstances are clearly as consistent with the theory that it may be ascribed to a cause not actionable as to a cause that is actionable, the jury is not to be permitted to guess where the truth lies and make that the foundation of a verdict.
The Restatement (Third) of Torts is in accord:
In many situations, neither common knowledge nor expert testimony may be available to support the idea that the type of accident ordinarily happens because of the negligence of the defendant. In such situations, res ipsa loquitur can be found
applicable only if the plaintiff has offered evidence tending to negate the presence of causes other than the defendant's negligence. That is, if the type of accident is sometimes caused by the defendant's negligence but is more frequently brought about by other causes that are unrelated to the defendant's negligence, res ipsa loquitur can be found applicable only once the plaintiff has presented evidence tending to negate the presence of those other causes.
The conflicting evidence with respect to whether Plaintiff was standing on the sink at the time of the accident or if the sink simply fell from the wall necessarily precludes Plaintiff from satisfying D.R.E. 304(b)(4), which requires that the evidence "exclude [Plaintiff's] own conduct as a responsible cause." Accordingly, for the reasons stated above, res ipsa loquitur cannot apply.
B. Res Ipsa Loquitur is Inapplicable Even if an Adverse Inference Instruction was Warranted.
Alternatively, the doctrine of res ipsa loquitur would not apply, even if Plaintiff's motion for an adverse inference instruction was granted. This would be true whether the issue was decided pretrial or at the close of Plaintiff's case. Consequently, the early disposition of this issue (at Plaintiff's request) would not have affected this Court's decision on the issue of res ipsa loquitur, assuming the facts at trial were essentially the same as those developed pretrial.
The application of res ipsa loquitur under the facts of this case would expand liability beyond the scope articulated in Thompson v. Cooles, supra. In the context of falling ceiling plaster, the Thompson Court succinctly framed the issue as follows: "does a reasonably prudent man . . . regard it as reasonably necessary to inspect and examine a ceiling the strength of which he has no cause to suspect, and which has offered no visible indication, by cracking, sagging, or bulging, of an unsafe condition? We think not."
Thompson v. Cooles, 180 A. 522, 526 (Del. 1935) ("If the rule is to be applied in the case of a ceiling, there seems to be no sufficient reason why it ought not to be applied to injuries resulting from any other part of a building whose construction work may prove to be faulty or insufficient.")
Id.
Similarly, in this case, there is no evidence to suggest that Defendants had cause to suspect an unsafe condition of the sink; Plaintiff testified that the sink was "loose," whatever exactly that means, but could not recall if she had ever reported this alleged condition to Defendants. In fact, Plaintiff testified that the sink's alleged looseness was of "no concern at [the time she discovered this alleged condition]." However, Plaintiff's obligation to report this alleged condition is defined by statute; 25 Del. C. § 5505(a) provides:
Pltf.'s Reply in Support of Mot. for Default J. Ex. A at 25
Id. Ex. A at 25.
Any defective condition of the premises which comes to the tenant's attention, and which the tenant has reason to believe is the duty of the landlord or of another tenant to repair, shall be reported in writing by the tenant to the landlord as soon as is practicable. The tenant shall be responsible for any liability or injury resulting to the landlord as a result of the tenant's failure to timely report such condition.
25 Del. C. § 5505(a) is tempered by § 5505(c), which states that § 5505 "shall not apply where the landlord has actual notice of the defective condition."
Although § 5505(a) speaks to a tenant's responsibility to the landlord resulting from tenant's failure to timely report a defective condition to the landlord and not specifically to a landlord's tort liability to tenant resulting from a defective condition, it is nonetheless probative to the instant analysis. In this case, Plaintiff has produced no facts to suggest that she ever informed Defendants of this alleged "looseness," much less that the Defendants were aware of this condition. Plaintiff is unsure if she ever even mentioned this condition to Defendants. Thus, this Court notes Plaintiff's apparent failure to provide Defendants with timely, adequate notice of this alleged defect (as defined by § 5505(a)), and also concludes that Defendants did not have actual notice of the alleged defect for purposes of § 5505(a).
On the present record, it cannot be determined if the sink in question was defectively attached to the wall. Also, even if, arguendo, there was some unspecified defect or dangerous condition, there is no evidence which would clarify when the alleged defective condition came into existence. Under Delaware law, "a lessor of land is not subject to liability to his lessee or others upon the land with the consent of the lessee or sublessee for physical harm caused by any dangerous condition which comes into existence after the lessee has taken possession." Applying res ipsa loquitur to Plaintiff's case would allow the circumvention of this rule of law by permitting an inference of negligence in the absence of proof of when the alleged defective condition arose.
Volkswagen of Am. v. Costello, 880 A.2d 230, 233 (Del. 2005) (citing RESTATEMENT (SECOND) OF TORTS § 355 (1965)).
Although the Thompson case arose in the context of an innkeeper and an invitee, the policy considerations inherent in the factual backdrop of Plaintiff's injury are nearly identical to the concerns raised in Thompson. Just as the Thompson Court did not allow liability based upon the bare fact of unexplained falling plaster, this Court similarly denies Plaintiff's request to invoke res ipsa loquitur premised on the bare fact of an unexplained falling sink. This holding is in accord with the majority approach; res ipsa loquitur generally does not apply in cases of injuries to tenants caused by unexplained falling plaster. To hold otherwise would be to impose potentially unbounded liability for latent defects; this Court will not disturb the general rule that a property owner's liability extends only to "defects for which he has actual notice, and with those which could have been discovered by a reasonable inspection."
Annotation, Res Ipsa Loquitur as Applicable in Action Against Landlord for Injury to Person or Property Due to Condition of Premises, 145 A.L.R. 870, § II(e) (1943). Interestingly, this annotation discusses a case from the District Court of Appeal of California in which the Court held that there "was no room" for the application of res ipsa loquitur in a case where falling plaster injured the plaintiff in her apartment unit, notwithstanding the fact that the landlord was notified of cracks in the plaster, and promised to repair the damage, two days before the accident. Dorswitt v. Wilson, 125 P.2d 626, 627 (Cal. App. 1942). However, the Dorswitt Court's holding appeared to turn on the applicability of the assumption of the risk doctrine, given the fact that Plaintiff slept under the damaged plaster, notwithstanding Plaintiff's undisputed knowledge of the condition of the plaster. Id.
Thompson, 180 A. at 526 (citation omitted).
Further, to the extent Plaintiff argues that Defendants should have detected the alleged defects through a more thorough inspection, Plaintiff cited no applicable housing or renting regulation that would require the necessary meticulous inspection of each and every rental unit's wall mounted sink. Delaware statutory law requires a landlord to "[p]rovide a rental unit which shall not endanger the health, welfare, or safety of the tenants," and "make all repairs and arrangements necessary to put and keep the rental unit . . . as they were, or ought by law or agreement to have been, at the commencement of the tenancy." This statute provided a "minimum, base-line duty," but it nonetheless "did not change the existing law in which liability could be found under common law or ordinary negligence." Consequently, liability under 25 Del. C. § 5305 requires that that the condition causing the injury was "defective and [landlord] should reasonably have been aware of the defect. . . ." Allowing an inference of negligence via res ipsa loquitur based on the bare fact of the sink's fall would disregard this longstanding common law rule and have the practical effect of imposing a novel common law inspection requirement on rental property owners and landlords, one that would require inspections beyond the scope of what "an ordinarily prudent person would require as reasonably necessary" and impose liability for latent defects which could not be discovered even upon reasonable inspection.
Tr. at 24.
25 Del. C. § 5305(a)(2)-(4).
Norfleet v. Mid-Atlantic Realty Co., 2001 WL 282882, *6-7 (Del. Super. 2001) (holding that applicable housing statutes provide a baseline duty, but a claim for ordinary negligence continues to be subject to the common law standard, which requires proof "that the alleged deficiencies would be considered a `defective condition' by a reasonable landlord."). It must be noted that there are two related Norfleet citations utilized in this opinion; the instant citation refers to the initial Superior Court's decision on a motion for summary judgment, dated February 16 2001, while the citation "2001 WL 695547" refers to the Superior Court's subsequent opinion on several motions in limine within the Norfleet litigation.
Ford v. Ja-Sin, 420 A.2d 184, 186 (Del. Super. 1980).
Thompson, 180 A. at 526.
This Court will not expand a landlord's common law duty to inspect. To satisfy the duty to inspect, "[t]he law demands no more than the exercise of reasonable care. . . .the duty to inspect must be a reasonable one, such as an ordinarily prudent person would regard as reasonably necessary." This duty to inspect "extends to defects the landlord is aware of or should be aware of through reasonable inspection of the rental unit." Accordingly, this Court rejects Plaintiff's proposed duty of Defendants to detect and rectify all possible latent defects as overly broad and in excess of what "an ordinarily prudent person would regard as reasonably necessary."
See, e.g., Powell v. Megee, 2004 WL 249589, *2 (Del. Super. 2004) (noting that a landlord's common law liability is defined by "an ordinary negligence standard to all defects, latent or otherwise in the rental unit of which the landlord was aware or should have been aware which endanger the health, welfare or safety of the tenant or occupant during the term of the tenancy.") (citations omitted); Norfleet, 2001 WL at *6 ("In Delaware, `[t]he duty of a landlord is to maintain the premises in a reasonably safe condition and to undertake any repairs necessary to achieve that end. The duty to repair defects extends to defects the landlord is aware of or should be aware of through inspection of the rental unit.'") (citations omitted).
Thompson, 180 A. at 526.
Norfleet v. Mid-Atlantic Realty Co., 2001 WL 2822882, *6 (Del. Super. 2001). But cf. Sanchez-Castillo v. Chirico, Del. Supr., ___ A.2d ___, No. 184, 2010, Steele, C.J. (November 24, 2010) (ORDER) (holding that there is no duty on a landlord to conduct a reasonable inspection of a rental property for patent defects, for such a duty would render 25 Del. C. § 5505(a), the provision which imposes a duty on the tenant to report patent defects to the landlord in writing, superfluous).
Id.
C. An Expert Opinion is Required in the Absence of a Res Ipsa Loquitur Instruction.
Once it is determined that res ipsa loquitur does not apply, Plaintiff becomes required to produce an expert's opinion to establish Defendants' alleged negligence as the proximate cause of the sink's fall. Although proximate cause is usually a question for the jury, if "[a] reasoned decision on the question of proximate cause may require an understanding and analysis of issues beyond the ken of a typical jury," then "the absence of expert testimony will prevent the issue from ever reaching the jury." This Court has previously held that the extent of a landlord's duty to inspect, repair, or replace a temperature "regulator" to a gas hot water heater was beyond the ken of an average juror and required an expert opinion. Similarly, the proper installation, maintenance, and repair of a wall mounted sink is beyond the ken of an average juror, as it requires an understanding of and familiarity with the structural and mechanical requirements for a properly mounted sink. Although most or all jurors may observe and use bathroom sinks on a daily basis, the intricacies and nuances of proper and secure wall mounting is a technical issue that requires an expert explanation and opinion, as confirmed by both parties' retention of expert witnesses herein. Crucially, however, Plaintiff's expert has stated that an expert opinion on Defendants' possible negligence in mounting the sink cannot be reached due to the unavailability of the disputed photographs.
Mazda Motor Corp. v. Lindahl, 706 A.2d 526, 533 (Del. 1998) (citation omitted). See also USH Ventures v. Global Telesystems Group, Inc., 2000 WL 1211205, *2 (Del. Super. 2000) (holding that the Delaware case law is "clearly established" and "mandat[es] that expert testimony is required in cases where the issues are beyond the ken of the typical juror.")
Powell, 2004 WL at *2.
Pltf.'s Reply in Support of Mot. for Default J. Ex. F.
With respect to Plaintiff's argument that the alleged defect was discoverable by reasonable inspection and that Defendants were negligent based on a failure to sufficiently inspect or maintain the sink in accordance with the applicable standard of care, given that "[t]he Landlord-Tenant Code did not change the existing law in which liability could be found under common law or ordinary negligence," Plaintiff would be required to prove that the common law standard of care herein is higher than any applicable housing or rental codes. Although this Court has held that property managers are not professionals, Plaintiff's claim must nonetheless fail because expert testimony is "helpful and required" to the extent that Plaintiff seeks to establish that "the standard of care in the Delaware real estate rental community is higher than the minimum requirements mandated by the applicable codes, statutes and regulations."
Norfleet v. Mid-Atlantic Realty Co., 2001 WL 695547, *6 (Del. Super. 2001) ("The common law standard of care for landlords is formulated by the extent to which the reasonable landlord exceeds federal, state and local codes.") Substantively, this proposed legal standard was rejected in Section III(B) of this opinion, supra.
Norfleet, 2001 WL 695547 at *6. Cf. Vandiest v. Santiago, 2004 WL 3030014, *7 (Del. Super. 2004) (holding a claim of negligence based on a loose handrail and a faulty doorframe of which the property manager allegedly knew or should have known did not require expert testimony).
In this case, Plaintiff's requirements are two-fold; she must 1) establish that the standard of care is higher than the applicable statutes and regulations, and 2) set forth the extent of Defendants' duty to inspect, repair, or replace the bathroom sink mountings. As set forth above, these are both issues beyond the "ken" of an average juror. Therefore, Plaintiff is required to produce an expert opinion in support of her claim, and Plaintiff's expert, by his own admission, cannot render an opinion on Defendants' alleged negligence.
IV. Summary Judgment
In light of the foregoing holdings, Plaintiff will be unable to produce direct or circumstantial evidence of Defendants' alleged negligence. Given Plaintiff's expert's inability to render an opinion and the lack of any additional evidence beyond the bare fact of the sink's fall, Plaintiff cannot produce any evidence to support her claims against Defendants. To survive a motion for summary judgment, Plaintiff was required to present "some evidence to support all elements" of her claims. The denial of an adverse inference instruction and the pretrial resolution of Plaintiff's attempt to invoke the doctrine of res ipsa loquitur necessarily precludes Plaintiff from satisfying this requirement and entitles Defendants to judgment as a matter of law. The foregoing holdings necessarily preclude the existence of disputed material facts; the only remaining material fact is the sink's unexplained fall, a fact which is undisputed. Thus, Defendants' motion for summary judgment is GRANTED.
See, e.g., Reybold Group, Inc. v. Chemprobe Tech., Inc., 721 A.2d 1267, 1270 (Del. 1998); Hercules v. AMEC Va., 1999 WL 167830, *5 n. 31 (Del. Super. 1999) ("Where a party has the ultimate burden of proof at trial of an element of its claim, upon a motion for summary judgment, that party must make a sufficient enough showing of the existence of that element.") (citing id.)
CONCLUSION
In those cases (not this one) where a plaintiff has utilized every reasonable alternative for obtaining evidence and the Court is satisfied that spoliation of evidence has occurred, then appropriate sanctions will follow, including the issuance of an adverse inference instruction. Ordinarily, this Court will defer any decision on spoliation until the close of the plaintiff's case, pursuant to D.R.E. 304(c)(1). Indeed, this Court acknowledges "the overwhelming common law res ipsa loquitur precedent that requires a jury to resolve any inconsistency." At the same time, this Court may properly decide the applicability of res ipsa loquitur at alternative stages in the proceeding, based on a "case-by-case" determination, guided by the "nature of the contentions, the sufficiency of the factual showing and the applicable standards of the doctrine." This case presents unique issues, and Plaintiff requested this Court to issue its decisions on the default judgment, adverse inference instruction, and the res ipsa loquitur issue prior to trial. Accordingly, this Court has properly decided the instant motions prior to trial.
Freeman v. X-Ray Associates, P.A., 3 A.3d 224, 232 (Del. 2010) (citations omitted).
Lacy v. G.D. Searle Co., 484 A.2d 527, 530 (Del. Super. 1984).
For the foregoing reasons, Plaintiff's motion for default judgment or, in the alternative, an adverse inference instruction, is DENIED. Consequently, given Plaintiff's request for a pretrial decision on this issue, this Court holds that res ipsa loquitur is not applicable to Plaintiff's case. It necessarily follows that Defendants' motion for summary judgment is GRANTED.
IT IS SO ORDERED.
stify regarding monensin's effect on the Parkhills.
{27} The Parkhills argue that the district court erred in excluding Dr. Koury's testimony based on his qualifications. The Parkhills assert that no specialized training or experience, beyond being a medical doctor, is necessary for Dr. Koury to meet the first prerequisite for admission of expert testimony defined by our Supreme Court, i.e., that experts must be qualified. We disagree and conclude that a treating physician does not establish the reliability of his techniques or the validity of his conclusions simply by claiming he performed a differential diagnosis on a patient.
{28} New Mexico law is clear that "a witness must qualify as an expert in the field for which his or her testimony is offered before such testimony is admissible." Downey, 2008-NMSC-061, ¶ 26 (internal quotation marks and citation omitted). Additionally, broad discretion is intentionally given to the trial court "to determine whether expert testimony will assist the trier of fact." Id. "In determining whether an expert witness is competent or qualified to testify, the trial court has wide discretion." Lopez v. Reddy, 2005-NMCA-054, ¶ 14, 137 N.M. 554, 113 P.3d 377 (alteration omitted) (internal quotation marks and citation omitted). "The qualifications of an expert are dependent on the type of negligence claimed and the medical complexity involved." Id. ¶ 16.
{29} At the Daubert hearing, Dr. Koury stated his qualifications as follows: that he holds a medical degree from the University of New Mexico and is licensed to practice medicine in New Mexico; that he currently practices family medicine in Silver City, New Mexico, but is not board certified in family practice; that his only training related to toxicology was in two classes taken in medical school, pharmacology and biochemistry, and that neither class had any specific information regarding toxicology. Dr. Koury further testified that he did not consider himself to be an expert in toxicology by education, training, or experience.
{30} Specifically regarding monensin, Dr. Koury stated that he had not heard of the substance prior to meeting the Parkhills and that the bulk of his information regarding monensin came from the Parkhills. Dr. Koury also stated that he does not know how monensin is handled when it is fed to cattle, what constitutes the minimum harmful dose for a human being, or what constitutes the minimum harmful dose for an animal. Additionally, Dr. Koury stated that he had not consulted with any experts on the subject of monensin and that his opinions regarding monensin and its association with the Parkhills' symptoms are based exclusively on his examination of the Parkhills and his own research. Finally, Dr. Koury testified that he was of the opinion that monensin is not eliminated from the body, but rather stays in the body, even though he had no factual or experiential basis for that opinion, and there was expert testimony stating that monensin is excreted from the body very rapidly. {31} Based on this testimony and a review of all written information submitted by the parties, the district court determined that Dr. Koury's differential diagnosis methodology was not scientifically reliable, and he was therefore not qualified to offer an expert opinion that required scientific knowledge of the properties, handling, and use of monensin. We conclude that substantial evidence supported the exercise of the district court's discretion to limit the testimony of Dr. Koury and to exclude his medical opinion as to causation. We affirm the district court's decision.
Exclusion of Dr. Dahlgren's Expert Testimony
{32} The Parkhills also proffered Dr. Dahlgren as an expert in environmental medicine and toxicology to testify that the Parkhills' illnesses were caused by their exposure to monensin. It is unclear from the record whether the district court found Dr. Dahlgren to be qualified to give his opinion that, to a reasonable degree of medical probability, the Parkhills' health symptoms were caused by their exposure to monensin. The court merely stated that it found his qualifications to be "less than stellar." The district court did, however, find that Dr. Dahlgren's testimony would not assist the trier of fact, as required by the second prerequisite defined by our Supreme Court in Alberico, because the testimony was not reliable under the Daubert-Alberico standard for scientific evidence. We agree with the district court that Dr. Dahlgren's testimony was not reliable under the Daubert-Alberico standard.
{33} The district court found that under the rules of Daubert-Alberico, Dr. Dahlgren's methodology had not been tested or peer reviewed. The district court further found that the methodology did not provide an estimate of the probability of error and that the doctor had not quantified a dose of the presumed toxic agent, monensin, as the basis for his opinion. Finally, the court noted Dr. Dahlgren's utter lack of familiarity with monensin and the manner in which the compound is used and handled in the industry. Based on these factors, the court determined that Dr. Dahlgren's opinion was unreliable and, therefore, inadmissible.
{34} The court reached its decision after a two-day evidentiary hearing during which the court heard testimony from five experts: Dr. Koury, specializing in family medicine; Dr. Dahlgren, specializing in internal medicine; Dr. Oehme, D.V.M., professor of toxicology at the Kansas State University Veterinary College; Dr. Fisher, board certified in toxicology; and Keith Behnke, Ph.D., professor of feed science at Kansas State University.
{35} The Parkhills do not address the reliability of Dr. Dahlgren's methodology — a differential diagnosis — for determining external causation of the Parkhills' symptoms in accordance with the Daubert-Alberico factors cited by the district court. Instead, the Parkhills cite a number of cases from other jurisdictions in which courts have found that a properly employed differential diagnosis is a scientifically reliable methodology. The Parkhills argue that based on these cases, a general acceptance of the differential diagnosis methodology can be inferred. The Parkhills offer no other argument or evidence that a differential diagnosis is a scientifically reliable methodology for determining external causation. However, our Supreme Court concluded in Alberico and reiterated in Torres, "[i]t is improper to look for scientific acceptance only from reported case law." Alberico, 116 N.M. at 167, 861 P.2d at 203; Torres, 1999-NMSC-010, ¶ 38. The policy behind our Supreme Court's decision in Alberico is to "allow a trial court to admit evidence of scientific knowledge that is adequately valid (from a scientific viewpoint) to be sufficiently reliable (from an evidentiary viewpoint)." Torres, 1999-NMSC-010, ¶ 39.
{36} Consequently, as we have noted above, we do not believe that the Parkhills have established that a differential diagnosis is the proper methodology for determining external causation in this case. Even if we were to assume a properly applied differential diagnosis to be an acceptable method for determining the external cause of the Parkhills' symptoms, the district court had to also determine that Dr. Dahlgren reliably applied that methodology to the facts of the present case. In Downey, our Supreme Court reiterated that expert testimony is only admissible under Rule 11-702 if it will assist the trier of fact, i.e., the expert testimony must be relevant. Downey, 2008-NMSC-061, ¶ 30. "One aspect of relevance is whether expert testimony proffered in the case is sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute." Id. (internal quotation marks and citation omitted). "The primary inquiry is whether the scientific methodology `fits' the facts of the case and thereby proves what it purports to prove." Id. "[T]he reasoning or methodology underlying the testimony must not only be scientifically valid, it also must be properly applied to the facts in issue." Id. (alterations, emphasis, internal quotation marks, and citations omitted).
{37} The district court found that in order for Dr. Dahlgren to apply his reasoning or methodology reliably to the facts in the present case, Dr. Dahlgren's opinion must be based on some quantification of the dose of monensin received by the Parkhills. We agree. "Expert testimony may be received if, and only if, the expert possesses such facts as would enable him to express a reasonably accurate conclusion as distinguished from mere conjecture." Id. ¶ 32 (internal quotation marks and citation omitted).
{38} While Dr. Dahlgren agreed that the dosage received by the Parkhills was critical in determining whether exposure to monensin could have caused the Parkhills' physical symptoms, Dr. Dahlgren did not attempt to quantify the dose of monensin received by the Parkhills, nor did he make any statement to the effect that it was not possible to quantify the dose of monensin to which the Parkhills had been exposed. As our Supreme Court noted in Downey, "[e]xperts may, and often do, base their opinions upon factual assumptions." Id. ¶ 34. However, the court went on to state that "those assumptions in turn must find evidentiary foundation in the record." Id. {39} We recognize that the precise dose of monensin received by the Parkhills may have been difficult to assess; nevertheless, it appears from the testimony of ACMG's expert, Dr. Fisher, a board certified toxicologist, that it was possible under the circumstances in the present case to give a reasonable estimate of the magnitude or concentration of monensin exposure received by the Parkhills.
{40} Dr. Dahlgren theorizes that the Parkhills' exposure to monensin occurred primarily through their inhalation of the dust from the feed generated during the feeding process. Samples of the Parkhills' feed, from the same lot as the feed that had been fed to the horses, were tested for monensin content by the New Mexico Department of Agriculture. Amounts of monensin found in the feed ranged from less than 2.3 grams per ton up to 8 grams per ton. Dr. Dahlgren, however, did not quantify any dosage based on these or any other tests.
{41} Dr. Fisher, on the other hand, made a determination of the likely worst-case dose of monensin the Parkhills could have received by assuming the highest amount of monensin found in any feed sample was present in all of the feed with which the Parkhills had contact. He also assumed that an extremely dusty environment in which 1% of the air would be dust from the grain (an environment in which it would be difficult to see more than a few feet) was present all times during all feedings; that the Parkhills were in this environment for an hour at each feeding; that the Parkhills inhaled the same volume of air that an average person would have inhaled during that time; that all grain and monensin dust in the air was of a size that could be inhaled and retained in the lungs; and that 100% of the amount inhaled was absorbed into the body.
{42} Based on this worst-case analysis, Dr. Fisher estimated that the maximum dose of monensin the Parkhills could have received in each one hour exposure would have been 0.038 milligrams per kilogram of body weight, an amount that, in his opinion, was unlikely to have caused any symptoms of toxicity in the Parkhills.
{43} The Parkhills do not offer evidence or argument to rebut Dr. Fisher's measurements or analysis, but rather assert that because of the alleged temporal relationship between the onset of the Parkhills symptoms and their exposure to monensin, quantifying the dosage received is not necessary to render a scientifically reliable opinion as to the effect of the exposure on the Parkhills. In support of their contention, the Parkhills cite several cases from other jurisdictions for the proposition that temporal relationships may be useful in determining causation where direct evidence of dosage cannot be obtained. Curtis v. M S Petroleum, Inc., 174 F.3d 661, 671 (5th Cir. 1999) (stating that the fact that workers displayed well-known symptoms of benzene exposure shortly after exposure to an unknown level of benzene could be used as a factor in determining dosage); Christian v. Gray, 2003 OK 10, ¶ 38, 65 P.3d 591 (stating that "the testimony of the expert should reveal a reliable method for determining the quantity of the toxin necessary to cause injuries of the type experienced by [the] plaintiff (general causation), unless [the] plaintiff can show that the circumstances are such that general causation should not be necessary"); Wisner v. Ill. Cent. Gulf R.R., 537 So. 2d 740, 748 (La. Ct. App. 1988) (stating that "where there are no facts, such as the exact degree of [plaintiff's] exposure, we hold the experts are still entitled to offer their conclusions based on their areas of expertise"). These cases are not applicable to the circumstances before us because direct evidence of the Parkhills' monensin dosage could have been obtained.
{44} The district court also found Dr. Dahlgren's opinion to be unreliable based on his "utter lack of familiarity" with monensin and the manner in which it is used and handled in the industry. Dr. Dahlgren stated that prior to being hired for the purposes of this lawsuit, he had no experience with or knowledge of monensin or any other chemical within the class of antibiotics of which monensin is a part. Dr. Dahlgren stated that he was aware from the reports and testimony of the other experts that monensin has been routinely used for many years as an additive in cattle and chicken feed in concentrations up to fifty times greater than the concentrations contained in the horse feed in the present case; however, Dr. Dahlgren stated that he had not researched what protective equipment, if any, was used within the industry when dealing with these feeds or whether there had been a single incident of health problems with workers in the industry. Dr. Dahlgren was also unaware that other people who had fed the monensin-contaminated feed (those feeding at the Dexter locations) had not experienced any adverse health symptoms. In short, Dr. Dahlgren failed to lay a scientific groundwork for the general toxicity of monensin and that it can cause the harm the Parkhills suffered.
{45} Finally, the district court noted that Dr. Dahlgren's opinions were generated solely for the purposes of the Parkhills' litigation and that "[i]t did not appear from the evidence that he had any specialized education in toxicology." See Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1317 (9th Cir. 1995) (emphasizing that "[o]ne very significant fact to be considered is whether the experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying").
{46} We reiterate the direction given by our Supreme Court that the trial court has broad discretion in the admission or exclusion of expert evidence, and that the trial court's decision should be sustained "unless [it is] manifestly erroneous." Alberico, 116 N.M. at 169, 861 P.2d at 205 (internal quotation marks and citation omitted). Applying this standard to the facts of this case and based on a review of the record before us, we conclude that the district court did not abuse its discretion when it excluded the testimony of Dr. Dahlgren as unreliable. Therefore, we affirm the district court's decision.
CONCLUSION
{47} For the reasons set forth above, we affirm the district court's orders as to the exclusion of Dr. Koury's and Dr. Dahlgren's causation testimony. In light of our conclusion that the experts were properly excluded, we do not reach Mr. Parkhill's claim that the district court erred in dismissing his personal injury claims as a sanction for discovery abuse.
{48} IT IS SO ORDERED.
______________________________________
LINDA M. VANZI, Judge I CONCUR:
______________________________________
JAMES J. WECHSLER, Judge
VIGIL, Judge (specially concurring).
{49} I agree with the majority that the district court did not abuse its discretion in excluding the proposed expert testimony of Dr. Koury and Dr. Dahlgren. However, I follow a fundamentally different analytical approach in considering the admissibility of this proposed expert testimony.
{50} The Daubert-Alberico factors are considered in relation to whether the methodology used by an expert to arrive at a conclusion is scientifically valid. Daubert, 509 U.S. at 592-93 (stating that a proffer of scientific testimony entails a "preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue"); Downey, 2008-NMSC-061, ¶ 30 (stating that for scientific evidence to be admissible under Rule 11-702, the reasoning or methodology underlying the testimony must be scientifically valid). However, in its consideration of whether the doctors were qualified to testify, the majority undertakes consideration of the Daubert-Alberico factors. Majority Op. ¶¶ 20-24, 32-35. This is not only unnecessary, it causes confusion.
{51} The Daubert-Alberico factors are considered only after the trial court has first determined that the proposed expert is qualified and that the proposed testimony will be helpful in deciding an issue of fact in the case. Neither of these two preliminary questions requires an analysis of the Daubert-Alberico factors. The trial court then determines if the proposed testimony involves scientific evidence. If the proposed testimony involves scientific evidence, the trial court then considers the Daubert-Alberico factors to determine if the methodology utilized by the expert is scientifically valid. If the proposed testimony does not involve scientific evidence, the Daubert-Alberico factors are not applicable.
{52} My second major disagreement with the majority is its analysis of whether a differential diagnosis performed by a qualified doctor may constitute sufficient proof of causation in a toxic tort case. Courts disagree on whether a doctor relying on a clinical differential diagnosis "can provide adequate proof of causation in a toxic tort action." Hollander v. Sandoz Pharms. Corp., 289 F.3d 1193, 1210 (10th Cir. 2002) (quoting Federal Judicial Center, Reference Manual on Scientific Evidence, Supreme Court's Trilogy on the Admissibility of Expert Testimony, 34 (2d ed. 2000)). The result of the majority opinion discussion of this issue at ¶¶ 20-24 and its reliance on McClain is to exclude a doctor from ever being able to use a differential diagnosis to establish causation in a toxic tort case. Not only do I disagree with such a sweeping conclusion, it is unnecessary. The admissibility of evidence is specific to each case, and we should only determine whether the district court abused its discretion in excluding the diagnoses in this case. See Hollander, 289 F.3d at 1210.
DISCUSSION New Mexico Law Regarding the Admission of Expert Testimony
{53} The admission of all expert testimony is governed by Rule 11-702. Rule 11-702 is entitled, "Testimony by experts," and it provides:
If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.
{54} It is now settled that under Rule 11-702 there are three prerequisites for the admission of all expert opinion testimony: "(1) experts must be qualified; (2) their testimony must assist the trier of fact; and (3) their testimony must be limited to the area of scientific, technical, or other specialized knowledge in which they are qualified."
Torres, 1999-NMSC-010, ¶ 23. The burden is on the proponent of the testimony to satisfy each of the prerequisites before the expert evidence is admissible.
State v. Downey, 2008-NMSC-061, ¶ 25 (stating that Rule 11-702 predicates the admissibility of expert testimony on the satisfaction of the three requirements);
State v. Morales, 2002-NMCA-052, ¶ 21,
132 N.M. 146, 45 P.3d 406 (stating that expert testimony may be admitted under Rule 11-702 if the proponent establishes these three prerequisites). I now discuss these prerequisites.
{55} First, "Regardless of whether the subject matter involves scientific, technical, or other specialized knowledge, however, a witness must qualify as an expert in the field for which his or her testimony is offered before such testimony is admissible." Torres, 1999-NMSC-010, ¶ 45; see Downey, 2008-NMSC-061, ¶ 26 (quoting Torres, 1999-NMSC-010, ¶ 45). The trial court's determination is reviewed for an abuse of discretion. See Torres, 1999-NMSC-010, ¶ 40 (concluding that the evidence failed to establish that a police officer was qualified to testify about the scientific bases of horizontal gaze nystagmus (HGN) testing); State v. Stills, 1998-NMSC-009, ¶ 34, 125 N.M. 66, 957 P.2d 51 (examining the evidence and concluding it supported a finding that the witness was an expert); State v. Lasworth, 2002-NMCA-029, ¶ 17, 131 N.M. 739, 42 P.3d 844 (noting that the state contended the trial court abused its discretion by ruling its witness was not qualified as an expert).
{56} If the witness is qualified, the second condition for the admission of expert evidence must be satisfied. This requirement, that the testimony must assist the trier of fact, is primarily one of relevance. Anderson, 118 N.M. at 291, 881 P.2d at 36. "One aspect of relevance is whether expert testimony proffered in the case is sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute." Downey, 2008-NMSC-061, ¶ 30 (internal quotation marks and citation omitted). In addition, if the witness cannot explain how the testimony proves an issue in the case, it does not assist the trier of fact. See Torres, 1999-NMSC-010, ¶ 40 (concluding that since the testimony of a police officer did not explain how a horizontal gaze nystagmus (HGN) test proved intoxication, his testimony concerning the test did not assist the trier of fact); Rule 11-401 (defining "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence").
{57} The third requirement for the admission of expert testimony has received the most attention. In Alberico, 116 N.M. at 165-68, 861 P.2d at 201-04, our Supreme Court abandoned the "general acceptance" test of Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923), in favor of the more flexible Daubert test for determining if expert opinion evidence involving "scientific knowledge" is reliable and therefore admissible under Rule 11-702. See also State v. Tollardo, 2003-NMCA-122, ¶ 17, 134 N.M. 430, 77 P.3d 1023 (stating that Alberico adopted "a more flexible inquiry" in which the general acceptance of the theory or technique is considered but is not controlling). In determining whether to admit expert opinion involving "scientific knowledge," the trial court considers a nonexclusive list of factors adopted from Daubert which include:
(1) whether a theory or technique can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known potential rate of error in using a particular scientific technique and the existence and maintenance of standards controlling the technique's operation; and (4) whether the theory or technique has been generally accepted in the particular scientific field.
Anderson, 118 N.M. at 291, 881 P.2d at 36 (internal quotation marks and citation omitted). In
Alberico, 116 N.M. at 167, 861 P.2d at 203, our Supreme Court added another factor: (5) "whether the scientific technique is based upon well-recognized scientific principle and whether it is capable of supporting opinions based upon reasonable probability rather than conjecture."
See Anderson, 118 N.M. at 291, 881 P.2d at 36 (noting the addition of this requirement by
Alberico). The trial court's application of the
Daubert-Alberico factors is reviewed for abuse of discretion.
Tollardo, 2003-NMCA-122, ¶ 16.
{58} However, the Daubert-Alberico factors apply only when the trial court is evaluating scientific testimony; they do not apply when evaluating non-scientific testimony. Torres, 1999-NMSC-010, ¶ 43; State v. Aleman, 2008-NMCA-137, ¶ 6, 145 N.M. 79, 194 P.3d 110. The initial question of whether the expert opinion involves scientific knowledge, which must meet the standard of evidentiary reliability set forth in Daubert-Alberico presents a question of law which is reviewed de novo. Torres, 1999-NMSC-010, ¶ 28; Aleman, 2008-NMCA-137, ¶ 6; Tollardo, 2003-NMCA-122, ¶ 9; Morales, 2002-NMCA-052, ¶ 18.
{59} Summarizing: (1) The proponent of any expert evidence must first establish that the proposed witness is qualified to give an expert opinion in the relevant field. This determination lies in the discretion of the trial court. If the witness is not qualified, the inquiry ends, and the evidence is not admissible. (2) If the witness is qualified as an expert, the proponent of the evidence must demonstrate that the testimony will assist the trier of fact. Again, this determination lies in the discretion of the trial court, and its determination will depend on a myriad of factors, including the nature of the case, and the purpose for which the evidence is being offered. (3) If the first two requirements are satisfied, the trial court must then determine whether the proposed testimony involves scientific evidence. This is an issue of law, reviewed de novo on appeal. The trial court applies the Daubert-Alberico factors to assess whether the proposed testimony is reliable and therefore admissible if it determines that the testimony involves scientific evidence. The Daubert-Alberico factors do not apply if the expert testimony is non-scientific and is based on the knowledge, experience, or training of the witness. To some degree, these considerations and the showing required to satisfy them may overlap. However, to the extent possible, consideration should be given to each separate prerequisite on its own. This will simplify and focus any pretrial hearing which may be held to consider the admissibility of expert testimony and appellate review of the trial court's decision.
{60} When all the factors are considered, the admission of expert testimony is within the discretion of the trial court and will not be reversed absent a showing of abuse of that discretion. Alberico, 116 N.M. at 169, 861 P.2d at 205. "An abuse of discretion standard of review, however, is not tantamount to rubber-stamping the trial judge's decision. It should not prevent an appellate court from conducting a meaningful analysis of the admission [of] scientific testimony to ensure that the trial judge's decision was in accordance with the Rules of Evidence and the evidence in the case." Id. at 170, 861 P.2d at 206; see Downey, 2008-NMSC-061, ¶ 24 (repeating this observation of Alberico). Moreover, in light of the liberal approach of our rules of evidence to the admission of evidence and the heightened qualifications of modern day jurors, any doubt regarding the admissibility of expert opinion evidence "should be resolved in favor of admission, rather than exclusion." Lee v. Martinez, 2004-NMSC-027, ¶ 16, 136 N.M. 166, 96 P.3d 291 (citing 1 Jack B. Weinstein Margaret A. Berger, Weinstein's Federal Evidence xix (2d ed. 2003)); see Aleman, 2008-NMCA-137, ¶ 30.
{61} I now apply the foregoing analysis to consider whether the district court abused its discretion in this case when it ruled that the testimony of the Parkhills' experts was not admissible.
Qualifications of the Experts
{62} The foundation for determining whether the expert is qualified is to identify what the issue is that requires expert testimony. This insures that an accurate determination can then be made by the trial court that the witness has the requisite knowledge, skill, experience, training, or education to qualify as an expert in the relevant field.
{63} The central issue in this case is whether the monensin in the horse feed caused the Parkhills' adverse physical symptoms. On the record before the district court, it was demonstrated that the most relevant field of expertise which applies in resolving this disputed fact is toxicology. "The science of toxicology attempts to determine at what doses foreign agents [monensin in horse feed] produce their effects [of adverse physical symptoms in the Parkhills]." Federal Judicial Center, Reference Manual on Scientific Evidence, Reference Guide on Toxicology, 403 (2d ed. 2000). Stated in legal terms, this is a classic toxic tort case. "Scientific knowledge of the harmful level of exposure to a chemical, plus knowledge that the plaintiff was exposed to such quantities, are minimal facts necessary to sustain the plaintiffs' burden in a toxic tort case." Allen v. Pa. Eng'g Corp., 102 F.3d 194, 199 (5th Cir. 1996).
{64} The Parkhills sought to introduce the opinion of Dr. Koury, their treating physician, that the monensin in the horse feed caused their physical symptoms. The district court made findings of fact that Dr. Koury is a family practice doctor who provided the services of a family practitioner to the Parkhills, which included a diagnosis of their conditions and treatment. On the other hand, the district court also found that Dr. Koury is not, and has never been, trained as a toxicologist; he knew nothing about monensin prior to this litigation; he did not estimate any dose of monensin to which the Parkhills were exposed; and he did not estimate the duration of the Parkhills' claimed exposure to monensin.
{65} The district court concluded that "Dr. Koury lacks the background, training and experience required to render a reliable opinion on the subject whether monensin was the external cause or etiology of the [Parkhills'] medical symptoms." These findings are not challenged, and they are supported by the evidence presented to the district court. I therefore conclude that the district court did not abuse its discretion in determining that Dr. Koury was not qualified under Rule 11-702.
{66} The Parkhills also sought to introduce testimony from Dr. Dahlgren, whom they hired to testify as an expert on causation. Dr. Dahlgren is board-certified in internal medicine, and the Parkhills asserted his medical specialty is "assessing and diagnosing toxic exposures in the environment[.]" However, Dr. Dahlgren had no idea how much monensin the Parkhills were exposed to, and he made no attempt to calculate the dose. Moreover, Dr. Dahlgren never heard of monensin before this case; knew nothing about livestock feeding practices or the widespread use of monensin in livestock feed; had never studied the class of antibiotics (ionophores) involved in this dispute before he was hired in this lawsuit; never met, spoke to, or examined the Parkhills; and acknowledged he developed his opinions regarding toxicity solely for purposes of this litigation.
{67} The district court found that it did not appear from the evidence that Dr. Dahlgren had any specialized education in toxicology, that "his qualifications are less than stellar," and concluded that he was not qualified to testify as an expert. In light of the evidence presented to the district court, I cannot conclude that the district court abused its discretion in finding that Dr. Dahlgren was not qualified to render an opinion on causation in this case.
Expert Testimony Must Assist the Trier of Fact
{68} The Parkhills nevertheless argue that Dr. Koury and Dr. Dahlgren are medical doctors who are qualified to perform a differential diagnosis. Since the opinions of the doctors are based on the differential diagnosis they performed, the Parkhills assert that they were qualified to testify that monensin in the horse feed caused their adverse physical symptoms. I assume that a doctor's experience or training qualifies the doctor to perform a differential diagnosis and therefore proceed to an analysis of whether the Parkhills satisfied the second requirement for the admission of expert testimony under Rule 11-702.
{69} A "[d]ifferential diagnosis refers to the process by which a physician rules in all scientifically plausible causes of the plaintiff's injury. The physician then rules out the least plausible causes of injury until the most likely cause remains. The remaining cause is the expert's conclusion." Hollander, 289 F.3d at 1209 (emphasis added) (alterations omitted) (internal quotation marks and citation omitted); see Federal Judicial Center, Reference Manual on Scientific Evidence, Reference Guide on Medical Testimony, 481 (2d ed. 2000) (defining a differential diagnosis as "[t]he term used by physicians to refer to the process of determining which of two or more diseases with similar symptoms and signs the patient is suffering from, by means of comparing the various competing diagnostic hypotheses with the clinical findings").
{70} To establish cause in a toxic tort case with a differential diagnosis, the evidence must show both "general causation" and "specific causation." See Norris v. Baxter Healthcare Corp., 397 F.3d 878, 881 (10th Cir. 2005) (citing Raynor v. Merrell Pharms., Inc., 104 F.3d 1371, 1376 (D.C. Cir. 1997) (discussing causation in toxic tort cases in terms of general causation and specific causation)). "General causation is whether a substance is capable of causing a particular injury or condition in the general population and specific causation is whether a substance caused a particular individual's injury." Id. at 881; see also Federal Judicial Center, Reference Manual on Scientific Evidence, Reference Guide on Medical Testimony, 481, 483 (stating that "[g]eneral causation is established by demonstrating (usually by reference to a scientific publication) that exposure to the substance in question causes (or is capable of causing) disease" and that "[s]pecific, or individual, causation is established by demonstrating that a given exposure is the cause of an individual's disease"). A differential diagnosis to establish causation in a toxic tort case therefore necessarily assumes that the "final, suspected cause remaining after the process of elimination must actually be capable of causing the injury" or disease. See Norris, 397 F.3d at 885 (emphasis omitted) (quoting Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387, 1413 (D. Or. 1966)) (quoting Cavallo v. Star Enter., 892 F. Supp. 756, 771 (E.D. Va. 1995)), aff'd on this ground, rev'd on other grounds, 100 F.3d 1150 (4th Cir. 1996). Thus, where the evidence fails to establish that the suspected cause is actually capable of causing the injury or disease (general causation), a differential diagnosis cannot reliably point to the suspected cause as the actual cause (specific causation). In the language of Rule 11-702, this results in an unreliable opinion that does not assist the trier of fact, and it is not admissible. See Downey, 2008-NMSC-061, ¶¶ 30, 32 (reiterating that expert testimony is inadmissible under Rule 11-702 unless it will assist the trier of fact, and that expert testimony which is "mere conjecture" is inadmissible (internal quotation marks and citation omitted)).
{71} I now turn to the specific facts of this case. The district court made specific findings that Dr. Koury did not perform adequate research to reliably determine that monensin generally is, to a reasonable medical probability, capable of causing the varied symptoms observed in the Parkhills in the human population as a whole. "No such research has been presented to the Court." Instead, the district court found that Dr. Koury presumed general causation, and "Dr. Koury has no reliable scientific basis for that presumption." These findings have support in the evidence presented to the district court and are not specifically challenged.
{72} Dr. Dahlgren testified he was aware from the reports and testimony of other experts that monensin has been routinely used for many years as an additive in cattle and chicken feed in concentrations up to fifty times greater than the concentrations contained in the horse feed in the present case; however, Dr. Dahlgren stated that he had not researched what protective equipment, if any, was used within the industry when dealing with these feeds or whether there had been a single incident of health problems with workers in the industry. Dr. Dahlgren was also unaware that other people who had fed the monensin-contaminated feed (those feeding at the Dexter locations) had not experienced any adverse health symptoms. In addition, the district court was presented with evidence that the Parkhills' own veterinary toxicologist stated that in his nearly fifty years of experience as a veterinary toxicologist, and despite monensin's wide-spread use for more than thirty years in livestock feeding operations throughout the world, "I've never known a human that's been affected."
{73} In light of the foregoing evidence, I conclude it was well within the discretion of the district court to conclude that the differential diagnoses of Drs. Koury and Dahlgren were not sufficiently reliable because they were lacking in the necessary foundation of general causation. See Hollander, 289 F.3d at 1210-11 (concluding that differential diagnosis expert testimony of a causal connection between a prescription drug (Parlodel) and the plaintiff's stroke was inadmissible because the trial court did not abuse its discretion in concluding the experts failed to demonstrate by reliable evidence that the drug can cause strokes); Norris, 397 F.3d at 885-86 (holding that experts' differential diagnoses that were contrary to all available epidemiological evidence that silicone breast implants did not cause diseases at issue were not admissible); Raynor, 104 F.3d at 1375-76 (holding that differential diagnosis which concluded that Bendectine caused the child's birth defects was inadmissible because a link between Bendectine and birth defects (general causation) was missing).
{74} In contrast to the case before us, in Ambrosini v. Labarraque, 101 F.3d 129, 135-36 (D.C. Cir. 1996), the court held that a differential diagnosis opinion was admissible to defeat summary judgment in a case where the plaintiffs alleged that the prescription drug Depo-Provera caused a child's birth defects. The plaintiffs presented expert testimony from an epidemiologist that the drug could cause birth defects like the child's (general causation) and testimony from an expert on birth defects that the drug caused the child's birth defects (specific causation). The court concluded that in light of this evidence, the experts' testimony would assist the trier of fact to understand the evidence or determine a fact in issue. Id. In the case before us, however, the differential diagnoses of Drs. Koury and Dahlgren lack reliability and, therefore, would not assist the trier of fact. The consequence is that their opinions are inadmissible. {75} The Parkhills argue this case presents "unique circumstances" and therefore general causation is not required. I agree that the evidence may demonstrate to the trial court that there are unique circumstances that make a presentation of evidence of general causation unnecessary or impossible. See Hollander, 289 F.3d at 1211-12 (stating that a medical expert must not always cite published studies on general causation in order to reliably conclude that a particular object caused a particular illness where the first several victims of a new toxic tort are involved "simply because the medical literature, which will eventually show the connection between the victims' condition and the toxic substance, has not yet been completed") (quoting Turner v. Iowa Fire Equip. Co., 229 F.3d 1202, 1209 (8th Cir. 2000)); Heller v. Shaw Indus., Inc., 167 F.3d 146, 155 (3d Cir. 1999) (stating that a medical expert is not always required to cite published studies on general causation because this "would doom from the outset all cases in which the state of research on the specific ailment or on the alleged causal agent was in its early stages"; but emphasizing that the diagnosis must otherwise be trustworthy); Ambrosini, 101 F.3d at 138 (stating "the fact that a case may be the first of its type, or that the plaintiff's doctors may have been the first alert enough to recognize a causal connection," does not render an expert's opinion inadmissible and that when an expert is "concededly well qualified" in the field and "when the underlying basis or methods of an expert's opinions are of a type reasonably relied upon by the experts in the field, the court must allow the opinion to be assessed by the factfinder" (alteration omitted) (internal quotation marks and citations omitted). In addition, I note Rubanick v. Witco Chem. Corp., 593 A.2d 733, 747-48 (N.J. 1991), in which the New Jersey Supreme Court undertook a general analysis of cases addressing causation in toxic tort cases and concluded:
[W]e hold that in toxic-tort litigation, a scientific theory of causation that has not yet reached general acceptance may be found to be sufficiently reliable if it is based on a sound, adequately-founded scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field. The evidence of such scientific knowledge must be proffered by an expert who is sufficiently qualified by education, knowledge, training, and experience in the specific field of science. The expert must possess a demonstrated professional capability to assess the scientific significance of the underlying data and information, to apply the scientific methodology, and to explain the bases for the opinion reached.
However, I agree with Defendant that the Parkhills failed to demonstrate to the district court that such unique circumstances exist in this case to conclude that the district court abused its discretion in excluding the opinions of Drs. Koury and Dahlgren.
CONCLUSION
{76} For the foregoing reasons, I agree with the majority that the district court did not abuse its discretion by excluding Plaintiff's proffered expert testimony in this case. I also agree with the majority that Banks does not apply in considering the admissibility of the Parkhills' expert testimony. Majority Op. ¶ 23. However, because the majority undertakes a fundamentally different analysis in considering the admissibility of the proposed expert testimony, and the majority analysis goes too far by excluding differential diagnosis testimony to establish cause in all toxic tort cases, I specially concur.
________________________ MICHAEL E. VIGIL, Judge Topic Index for Parkhill v. Alderman-Cave Milling , Docket No. 29,120 AE APPEAL AND ERROR AE-SR Standard of Review
CP CIVIL PROCEDURE CP-EH Evidentiary Hearing CP-EX Expert Witnesses
EV EVIDENCE EV-EW Expert Witness EV-SC Scientific Evidence Daubert Standard
TR TORTS TR-TX Toxic Tort