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IN THE DISTRICT
COURT OF LANCASTER COUNTY, NEBRASKA
NORA J. EPP,
CASE NO. CIO1-4292
Plaintiff,
v.
ORDER
MARK E. LAUBY and BRAD A. WEBB,
Defendants.
This matter came before
the court on September 12, 2003, for hearing on the defendants',
Mark E. Lauby and Brad A. Webb, motion in limine to exclude expert
and opinion testimony pursuant to Neb. Evid. R. 702. The plaintiff
was represented by attorney, John M. Lefler and attorneys, Michael
D. McClellan and William E. Gast represented the defendants.
Evidence was adduced, the motion was argued and briefs were
submitted. The court, being fully informed, now finds and orders
as follows:
FACTS
On June 24, 1999, the
plaintiff, Nora Epp ("Epp"), was involved in a three vehicle chain
collision accident on South 56th Street near Calvert in Lincoln,
Nebraska. Epp was driving a 1991 Dodge Stealth which was headed
south on South 56th Street. As Epp was slowing down for a traffic
light, a vehicle driven by the defendant, Mark Lauby ("Lauby"),
struck the rear of the vehicle driven by the second defendant,
Brad Webb ("Webb"). Webb in turn, struck the rear of the vehicle
that Epp was driving. The police report indicated that both Epp
and Webb complained of neck and shoulder pain immediately after
the accident, but refused medical treatment at scene.
The next day, June 25,
1999, Epp visited her chiropractor, Dr. Lori Elliott ("Dr.
Elliott"). Epp returned to Dr. Elliott for 11 visits over the next
two months. After six weeks of visits with Dr. Elliott and no
notable improvement, Dr. Elliott referred Epp to Lane Handke, M.D.
("Dr. Handke"). On July 27, 1999, Epp had her first visit with Dr.
Handke who continues to treat her presently. The purpose of her
first visit to Dr. Handke regarded soft tissue spasms in her neck
and a tingling sensation in her left arm and leg that she had been
experiencing following the accident. Dr. Handke's initial
assessment was that Epp had a cervical strain, thoracic strain,
lumbar strain and a history of asthma.
After Epp's February 17, 2000
visit with Dr. Handke, his report indicates that Epp was
experiencing constant, severe headaches and found myofasical
trigger points at the base of the skull, base of the neck and the
intrascapular area. Dr. Handke further reported that Epp had
shooting pains down the left arm. These symptoms led Dr. Handke to
diagnosis her condition as chronic neck pain syndrome and left arm
radicular symptoms. Dr. Handke also made note that some of her
problems could be from the role of personal stressors and their
influence on her condition. It was at this time that Dr. Handke
prescribed medications for depression as he believed that the
depression was one of the factors of Epp's pain. According to Dr.
Handke this was also the first time that he thought that Epp may
have fibromyalgia.
On March 10, 2000, Dr.
Handke again met with Epp and noted that she was still
experiencing chronic pain in her back and neck. It was at this
visit that Dr. Handke first made a written provisional diagnosis
of Epp's condition as fibromyalgia. Fibromyalgia syndrome is
described as a group of symptoms that center on pain complaints of
patients. In the medical literature, the most characteristic
symptoms are defined as fatigue, sleep disturbance, and morning
stiffness. In addition, "pain all over" has been described as a
characteristic symptom. (E 12, ¶
3). Its referred to as a syndrome because it's a set of
signs and symptoms that occur together. (E38).
On November 28, 2000,
after Epp's first visit with Dr. Handke in eight months, Epp told
him that she had suffered a flare up and in Dr. Handke's report he
noted diffuse trigger points in the neck, upper back and
shoulders. Epp told Dr. Handke that her skin was so tender that it
hurt even on a gentle touch. After this visit, Dr. Handke
diagnosed Epp's condition as fibromyalgia, disability, major
depression and severe asthma.
Dr. Handke testified that
while the single exact cause of fibromyalgia was unknown, it was
his opinion that Epp's fibromyalgia was caused by the sudden
impact she suffered as a result of the June 24, 1999 automobile
accident. This opinion was based on the fact that Epp did not have
any of the symptoms of fibromyalgia prior to the accident. By
means of a motion to continue on July 16, 2003, Epp also
identified Robert M. Bennett, M.D. (Dr. Bennett) of Oregon Health
Sciences University as an expert witness for purposes of the
Daubert hearing and to testify as to the relationship between
physical trauma and fibromyalgia.
The subject of the motion
in limine before this court is to exclude Dr. Handke's testimony
that the onset of Epp's fibromyalgia was caused by the sudden
impact of the automobile accident. This motion also seeks to
exclude the expert testimony of Dr. Bennett which was submitted to
bolster Dr. Handke's opinion concerning posttraumatic fibromyalgia
for the Daubert hearing. No motion in limine was filed
against the testimony of Dr. Bennett, however, because the
deadline for filing motions in limine with regard to expert
opinions had expired on June 1, 2003. Lauby contends that Dr.
Bennett's testimony should be subject to a Motion in Limine even
though one was not filed because Lauby was left without a
mechanism to exclude opinion evidence since the expiration date
had passed.
DISCUSSION
In determining whether to
grant the defendants' motion in limine to exclude the expert
testimony of Dr. Handke and Dr. Bennett, this court must find that
the offered expert opinion adheres to the standard for admitting
expert opinions embodied in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993),
as adopted by Nebraska in Schafersman v. Agland Coop., 262
Neb. 215, 631 N.W.2d 862 (2001). The standards enumerated in
Daubert and Schafersman "require proof of the
scientific validity of principles and methodology utilized by an
expert in arriving at an opinion in order to establish the
evidentiary relevance and reliability of that opinion."
Schafersman, 262 Neb. at 225, 631 N.W.2d at 872.
The first step in
determining the reliability of an opinion is for the district
court' to determine pursuant to Neb. Evid. R. 702, "whether the
expert is proposing to testify to (1) scientific, technical, or
other specialized knowledge that (2) will assist the trier of fact
to understand or determine a fact in issue." Id. at 232,
631 N.W.2d at 876-877. This process entails a "preliminary
assessment whether the reasoning or methodology underlying the
testimony is valid and whether the reasoning or methodology
properly can be applied to the facts in issue." Id. If the
validity of the expert's testimony can be established, the
remaining questions in which the methodology was applied to a
particular case will go to the weight of the evidence. Id.
To avoid exclusion of
expert testimony, however, "experts must offer the courts more
than unsupported assertions; they must offer evidence about the
basis of their asserted expertise sufficient to enable a judge to
conclude that their expert testimony will provide dependable
information to the factfinder." Id. at 229, 631 N.W.2d at
875.
Daubert has been
interpreted to equate the district court's role in regards to
expert testimony to that of a "gatekeeper." Kumho Tire Co.,
Ltd. v. Carmichael, 526 U.S. 137, 147, 119 S. Ct. 1167, 1174
(1999). Pursuant to this gatekeeping function, Schafersman
delineates factors that a trial court may consider in its
determination, such as:
(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)
whether, in respect to a particular technique, there is a high
known or potential
rate of error; (4) whether there are standards controlling the
technique's
operation; and (5) whether the theory or technique enjoys general
acceptance
within a relevant scientific community.
Schafersman, 262 Neb. at 233, 631 N.W.2d at 877.
Based on the background
provided by Daubert and Schafersman this court must
now determine whether the expert testimony offered by Dr. Handke
and Dr. Bennett concerning the onset of fibromyalgia from physical
trauma is reliable under these standards. To support her claim
that the causal relationship between physical trauma and
fibromyalgia is reliable Epp has introduced a significant amount
of medical literature into evidence.
Of the most important of
this literature is the Consensus Report on Fibromyalgia written by
a committee of fibromyalgia experts who submitted recommendations
on the diagnosis, testing, assessment and prognosis of
fibromyalgia in 1996. (E41). That report found that the. "evidence
that trauma can cause [fibromyalgia] ... comes from a few case
series or case reports and is insufficient to establish causal
relationships." Frederick Wolfe et al., The Fibromyalgia Syndrome:
A Consensus Report on Fibromyalgia and Disability, 23:3 The
Journal of Rheumatology 534, 534 (1996). (Consensus Report). The
Consensus Report continued that the question of whether trauma
might cause fibromyalgia could only be addressed by "epidemiologic
studies that measure the risk of potential exposures on the
development of [fibromyalgia]" and that these kinds of studies
that "address potential or predictive causality are currently not
available." Id.
In Black v. Food Lion,
Inc., 171 F.3d 308 (5th Cir. 1999) the court considered a
similar issue regarding the onset of fibromyalgia after physical
trauma (the plaintiff slipped and fell on mayonnaise film at a
grocery store) and analyzed the Consensus Report in its opinion.
The Fifth Cireuit found that expert testimony relating to the
onset of fibromyalgia brought on by physical trauma was not
reliable under the Daubert standards. The court noted the
expert's theory had not been subjected to peer review, the expert
herself acknowledged that fibromyalgia had no known etiology, and
that expert's testimony had not gained acceptance within the
medical profession. Black, 171 F.3d at 313.
The court then stated
that "[t]he underlying predicates of any cause-and-effect medical
testimony are that medical science understands the physiological
process by which a particular disease or syndrome develops and
knows what factors cause the process to occur" and that in this
case neither the expert nor the medical science knows the "exact
process that results in fibromyalgia or the factors that trigger
the process." Id. at 314. "Absent these critical scientific
predicates, for which there is no proof in the record, no
scientifically reliable conclusion on causation can be drawn."
Id.
Epp contends in her brief
that certain medical literature was excluded from the Black
opinion and if that literature would have been submitted it would
have led the court to a different result. Epp explicitly cites in
her brief two further studies that, in her opinion, give support
to her expert's opinion that there is a causal relationship
between trauma and fibromyalgia.
One these studies is the
Buskila Study. Dan Buskila, et al., Increased Rates of
Fibromyalgia Following Cervical Spine Injury: A Controlled Study
of 161 Cases of Traumatic Injury, 40:3 ARTHRITIS & RHEUMATISM
446 (1997) ("Buskila Study"). In the Buskila Study the authors
concluded that their analysis suggested that soft tissue trauma
can result in an increased incidence of fibromyalgia, however, the
authors cautioned that "[f]uture studies addressing the issue of
trauma (especially, neck trauma) and [fibromyalgia]" were needed
and that the "present data in the literature [was] insufficient to
indicate whether a causal relationship exists between trauma and
[fibromyalgia]." Id. at 451. Thus, the authors of the
Buskila Study admitted that despite their tests, the medical
literature was not capable of supporting a casual relationship
between physical trauma and fibromyalgia.
In. Vargas v. Lee,
317 F.3d 498 (5th Cir. 2003), the Fifth Circuit again considered
the issue of trauma and the onset of fibromyalgia. The court
concluded that even though the plaintiff's expert witness
testified that a high percentage of his fibromyalgia patients
stated that their symptoms appeared following traumatic injury,
this testimony was "not sufficient to demonstrate the reliability
of [the doctor's] theory that fibromyalgia is caused by trauma.
..." Id. at 502. In making this determination the Vargas
court considered the Buskila Study, the Consensus Report and a
1993 editorial written by Epp's expert witness, Dr. Bennett. The
court found that the studies "only bolster[ed] [the court's]
conclusion in [Black v. Food Lion, Inc., supra] that expert
testimony on the causation of fibromyalgia is not sufficiently
reliable to be admitted under [Fed. R. Evid.] 702." Id.
The other study that Epp
cites in her brief is the Al-Allaf Study. A.W. Al-Allaf, et al.,
A case-control study examining the role of physical trauma in
the onset of fibromyalgia syndrome, 41: 450-453 Rheumatology
(2002). (E68) ("Al-Allaf Study"). The Al-Allaf Study concluded
that physical trauma in the preceding six months is significantly
associated with the onset of fibromyalgia. Id. at 452.
Again, the authors of the study cautioned that "[f]urther
prospective studies are needed to confirm [the association of
physical trauma and fibromyalgia] and to determine whether trauma
has a causal role or if there are more important factors in the
development of [fibromyalgia]." Id. at 453. Therefore, the
major finding of this study was the fact that trauma and the onset
of fibromyalgia are associated with each other, not that trauma
causes fibromyalgia.
Applying the evidence
submitted by Epp to the present case, the standards described in
Schafersman and Daubert require more than just
evidence that trauma and fibromyalgia are associated with each
other as Epp's medical literature demonstrates. "Evidence of an
association may be sufficient for formulation of a hypothesis that
can later be tested and confirmed, but it is not proof of
causation in the courtroom or scientific community. Schafersman,
262 Neb. at 234, 631 N.W.2d at 878. Therefore, just because the
medical literature supports the view that trauma and fibromyalgia
are associated, it does not establish that the trauma Epp suffered
as a result of the vehicle accident caused Epp's fibromyalgia.
Furthermore, Epp's
differential diagnosis that association proves causation presents
improper post hoc propter hoc reasoning. Differential diagnosis
"is a standard scientific technique of identifying the cause of a
medical problem by eliminating the likely causes until the most
probable one is isolated." Id. at 233. If the differential
diagnosis is reliable it can provide a suitable foundation for an
expert opinion. Id. In this case, however, Dr. Handke and Dr.
Bennett have arrived at their theory on the basis that Epp was not
experiencing symptoms of fibromyalgia before the accident, but
then after the accident started to experience the symptoms,
therefore the trauma caused by the accident must have caused her
fibromyalgia. Schafersman has recognized that this type of
reasoning cannot be "said to be helpful to the trier of fact under
Neb. Evid. R. 702...." Id.
In sum, since there is a
lack of scientific support for the conclusion that trauma causes
the onset of fibromyalgia, Dr. Handke's and Dr. Bennett's opinion
lacks the requisite medical reliability to assist the trier of
fact to understand a factual issue under Neb. R. Evid. 702. Dr.
Handke's and Dr. Bennett's theory, as indicated by the medical
research, has not been verified by sufficient testing, therefore
not subject to peer review. Dr. Handke even admitted in his
deposition that fibromyalgia "does not have a known consistent
cause." (E10, 159:14-24). Dr. Handke also testified that the
medical science identifies many different factors as contributing
to the onset of fibromyalgia such as "illness, physical trauma,
emotional trauma or hormonal changes." (E10, 160:6-17). Finally,
experts in the field of fibromyalgia conclude that the ultimate
cause of the syndrome is unknown and as recognized by the Fifth
Circuit, "[m]ere conjecture does not satisfy the standard of
general acceptance." Black, 171 F.3d at 313.
Therefore, the
defendants' Motion in Limine to Dr. Handke's expert testimony is
granted as is the exclusion of Dr. Bennett's expert testimony as
it relates to a causal connection between physical trauma and the.
onset of fibromyalgia even though there was no formal motion in
limine to exclude it by the defendants. In reaching this decision,
this court does not hold that trauma does not cause fibromyalgia
or that admission of such evidence is forever barred, only that at
the current time the medical science linking such a causal
relationship does not exist. See Vargas,
3 17 F.3d at 503.
CONCLUSION
IT IS ORDERED that there is not sufficient medical
reliability surrounding a causal connection between physical
trauma and fibromyalgia syndrome. Accordingly, the Daubert
standards for admissibility of expert testimony has not been
satisfied and the defendants' motion in limine as to the expert
opinion of Dr. Handke and Dr. Bennett is granted. Dated this 10th
day of November, 2003.
BY THE COURT:
Earl Witthoff District Court Judge
cc: John M. Lefler, Attorney for the Plaintiff
Michael D. McClellan, Attorney for the
Defendant
William E. Gast, Attorney for the
Defendant
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