THE OKLAHOMA WORKERS COMPENSATION ACT AND

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					THE OKLAHOMA WORKERS’ COMPENSATION ACT AND
DAUBERT: APPLYING THE RELIABILITY REQUIREMENT OF
RULE 702 TO EXPOSURE CASES BEFORE THE WORKERS’
COMPENSATION COURT.

                                By Andrew D. Downing

        In 1993, the United States Supreme Court decided Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), clarifying the Trial Court’s role as the front
line against the allowance of junk science and expert testimony consisting of nothing
more than unsupported speculation. Since 1993, decisions too numerous to count have
illuminated the issue of how a Judge is to evaluate proffered expert testimony in order to
guarantee an indicia of reliability is present in the opinion of the expert and not mere
guesswork. In 2003, the Oklahoma Supreme Court in Christian v. Gray, 2003 OK 10, 65
P.3d 591, mandated that state district courts in Oklahoma follow the Daubert standard in
their canvassing evidentiary offerings for reliability.

       In the last Legislative session, the Workers’ Compensation Act was again
modified by the Legislature. In particular, a definition of what constitutes “objective
medical evidence” was added to the Act, as was the requirement that an injured workers’
claim for compensation be supported by expert medical testimony meeting the
admissibility criteria of Federal Rule of Evidence 702. This enactment radically changes
the burden of both sides in a workers’ compensation claim, but particularly the
Claimant’s and especially when the Claimant’s alleged injury stems from a claimed
exposure to a toxin or other injury-causing substance.

         The Tenth Circuit Court of Appeals has held that a court has no discretion to
avoid the gatekeeper function of determining the admissibility of expert testimony. See
Dodge v. Cotter Corp., 328 F.3d 1212, 1222-23 (10th Cir. 2003)1. The trial court does
have discretion, though, in how it conducts the gatekeeper function. Id. A natural
requirement of the gatekeeper function is the creation of a sufficiently developed record
in order to allow a determination of whether the court properly applied the relevant law.
Id. It seems highly unlikely that the Workers’ Compensation Court will start holding
Daubert hearings in every case that comes before it. However, incases of occupational
disease or single-event injuries where the injuries are claimed to be a result of a chemical
exposure, for example, the Court’s obligation to scrutinize the expert’s opinion for
reliability is now the same as other state and federal courts. This article addresses the
retroactive application of this new statutory addition, as well as explores the Rule 702
reliability requirements of an expert opinion in an exposure case.

I.     Title 85 O.S. §3(17) defining objective medical evidence and requiring the use
of the Daubert standard of reliability for expert testimony is a procedural rule that
applies retroactively.

        The general rule pursuant to established workers’ compensation jurisprudence is
that laws affecting the rights and claims of a party are deemed to be substantive, and


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fixed as of the date of the injury. King Mfg. v. Meadow, 2005 WL 2851423, 4 (Okla.
2005). Further, Title 85 O.S. §3.6(F) specifically states: “Benefits for an injury shall be
determined by the law in effect at the time of the injury; benefits for death shall be
determined by the law in effect at the time of death.”2 However, laws that are procedural
in nature, i.e. aimed at the trial court’s conduct of proceedings, are to be applied
retroactively, since such laws do not affect the claimant’s rights, only the procedure
followed. Cole v. Silverado Foods, Inc., 2003 OK 81, 78 P.3d 542 (“statutes which relate
solely to remedies and affect only modes of procedure are generally held to operate
retroactively and apply to pending proceedings.”) In short, the general rule of
prospective application of statutes does not apply to statutes affecting only procedure, or
the manner or mode of protecting or enforcing a substantive right.

      On July 1, 2005, the Oklahoma Legislature amended certain definitions in the
workers compensation scheme. Specifically, a definition was added defining objective
medical evidence as follows:

       17. ‘Objective medical evidence’ means evidence which meets the criteria
       of Federal Rule of Evidence 702 and all U.S. Supreme Court case law
       applicable thereto.”

Title 85 O.S. §3(17). The mandate that a Claimant’s claim for compensation benefits be
supported by reliable medical testimony is reiterated in 85 O.S. §17(A)(1). Further, Rule
20(C) of the Court Rules of the Workers’ Compensation Court, which were just approved
by the Oklahoma Supreme Court on January 30, 2006, states, “Objective medical
evidence includes medical testimony that rests on reliable scientific, technical or
specialized knowledge, and assists the Court to understand the evidence or to determine a
fact in issue.” This new language restates the long-standing requirement of reliability
associated with expert testimony and tracks Title 12 O.S. §2702. These statutory
amendments confirm the Court’s gate-keeping function as to expert testimony espoused
in Daubert.

        Daubert was specifically adopted in Oklahoma by Christian v. Gray, 2003 OK
10, 65 P.3d 591. As addressed previously in Oklahoma, Daubert should be applied
retroactively, even where the injury predated the acceptance of the rule, since the
standard was well-known and incorporated into Title 12 O.S. § 2702. In Christian, our
Supreme Court stated, “Whether Daubert applies in civil proceedings is a new
procedural question for Oklahoma courts statewide when applying our Evidence
Code…” Christian, 65 P.3d at 596, note 4. Later, the Christian Court stated:

       [A] trial judge’s decision to prevent improper testimony from an expert
       witness is not new to our jurisprudence. Our Evidence Code currently
       recognizes the gatekeeping capacity of a trial judge, and Daubert is but a
       refinement of this role.

Id., at 598. Further, in the case of Twyman v. GHK Corp., 2004 OK CIV APP 53, 93
P.3d 51, the appellate court held:



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       Twymans assert the Daubert standard should not be applied here because
       trial was concluded in 2002 before Christian adopted Daubert for use in
       Oklahoma civil actions.       We find Daubert should be applied
       retrospectively.

Twyman at 54. The Twyman Court went on to conclude, “The need for scientifically
reliable expert evidence in accordance with §2702 justifies retroactive application of
Daubert and Christian here.” Id., at 56.

        The Twyman Court was the first court in Oklahoma to discuss and decide the
issue of retroactive application of Daubert. The Twyman Court looked to courts in other
states that universally stated even if an injury pre-dated the state’s recognition of
Daubert, “Daubert must nonetheless be applied retroactively because Daubert and Foret
announce a procedural rule of law.” Id., at 55 (emphasis in original).

        The adoption of the Daubert standards in Christian was not “a bolt out of the
blue.” Id. Daubert was decided in 1993 and its possible adoption in the various states
has been discussed widely during that period. The Oklahoma Court of Criminal Appeals
mandated use of Daubert for scientific evidence in state court criminal matters in 1995.
See, Taylor v. State, 1995 OK CR 10, 889 P.2d 319. In Cities Service Co. v. Gulf Oil
Corp., 1999 OK 14, 980 P.2d 116, the Oklahoma Supreme Court, although not officially
adopting Daubert standards, cited Daubert positively by footnote for the responsibility of
trial courts as “the ‘gatekeeper’ of the evidentiary process to screen evidence, i.e., to
determine its relevance and reliability.”

        Based on the above language, it appears that Title 85 O.S. §§3(17) and 17(A)(1),
applying the Daubert standard, constitute a procedural rule and must be given retroactive
effect in Oklahoma’s Workers Compensation Court. The ramifications of such a rule are
wide-ranging. The thousands of pending workers’ compensation claims are all
implicated. As stated earlier, a Daubert challenge would not be warranted in every
workers’ compensation case. A medical doctor is probably still competent to render an
opinion as to impairment resulting from a back strain. However, any injury claim where
the reliability of an expert’s opinion is called into question, either because of a flawed
methodology or issues pertaining to the expert’s qualifications, necessitates the
application of the standards of Daubert and its progeny in testing the admissibility of the
expert’s opinions.

II.    The Application of Federal Rule of Evidence 702

        Various courts have engaged in a Daubert analysis under Rule 702 in relation to
the admissibility of a causation opinion concerning an alleged exposure to chemicals.
These decisions typically focus first on the expert's qualifications and then on the
methodology employed by the expert to reach the ultimate opinion. Thus, a court will
not accept opinion testimony merely because the witness purports to be an “expert”. The
witness must have some “specialized knowledge”, connoting more than a subjective
belief or unsupported speculation.



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        The Workers’ Compensation Court, as all trial courts applying the Daubert
standard, must assess the reliability and the relevance of the proffered expert testimony
by determining: (1) whether the expert has the requisite qualifications to render an
opinion, (2) whether the expert used appropriate methodology or testing in arriving at his
or her opinions, (3) whether the testimony is relevant, that is, whether it "fits" the facts of
the case, and (4) whether the expert relied on facts or data of a type reasonably relied
upon by experts in the particular field. Daubert, at 595.3 The purpose of the Daubert
inquiry is always “to make certain that an expert, whether basing testimony upon
professional studies or personal experience, employs in the courtroom the same level of
intellectual rigor that characterizes the practice of an expert in the relevant field.” Id.4

III.   Testing the Expert’s Qualifications

        As a threshold inquiry, the expert's background must show qualification sufficient
to permit expression of an opinion that is borne of the specialized knowledge or expertise
which allows the expert to give opinion evidence in the first instance. Anderson v.
National R.R. Passenger Corp, 866 F.Supp. 937 (E.D.Va. 1994). Notably, a causation
opinion in a chemical exposure case is properly rendered by someone with expertise in
the field of toxicology. See Everett v. Georgia-Pacific Corp., 949 F.Supp. 856 (S.D.Ga.
1996).

         In Everett, the plaintiff claimed that exposure to chemicals released from the
defendant's paper mill caused chronic bronchitis and pulmonary disease. The Court
granted the defendant's motion in limine excluding the plaintiff's treating physician's
causation opinions. Id. at 857. In doing so, the Court first analyzed the threshold prong in
determining admissibility, i.e., whether the witness is qualified as an expert in his or her
field. Id. The Court stated:

       Chiem [the expert] proposes to offer an opinion as to the causation of
       [plaintiff's] medical condition. The relevant inquiry, thus, is whether
       Chiem is an expert in the field of toxicology, which is the study of adverse
       effects of chemical agents on biological systems. To qualify as an expert,
       Chiem must possess some specialized knowledge about toxicology....He
       currently practices family medicine and surgery in Mendenhall,
       Mississippi. Chiem apparently possesses no specialized knowledge or
       training in the field of toxicology. Given the complete absence of any
       specialized knowledge with regard to toxicology, the Court concludes
       that Chiem is not qualified to give expert testimony as to the cause of
       [plaintiff's] medical condition.

Id. at 858 (emphasis added)(quotations omitted).5

       The District Court for the Northern District of Oklahoma addressed the question
of expert qualifications in Alexander v. Smith & Nephew, P.L.C., 98 F.Supp. 1310 (N.D.
Okla. 2000), where a plaintiff sought to introduce a family practitioner to testify to



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causation concerning injuries to a patient's spine from a spinal rod system inserted into
the patient's spine after surgery for herniated discs. Id. at 1313-14. The court refused to
qualify the family practitioner physician as an expert to testify on causation, stating:

       The simple possession of a medical degree is insufficient to qualify a
       physician to testify as to the...medical causation of spine-related
       ailments…A blanket qualification for all physicians to testify as to
       anything medically-related would contravene the Court's gate-keeping
       responsibilities. [The plaintiff's expert] lacks experience or training in
       orthopedics, spinal surgery...neurology, or other areas related to the
       specialized opinions he has offered in this case.... Plaintiff simply has not
       demonstrated that [her expert] is “qualified as an expert by knowledge,
       skill, experience, training or education” to testify as to [causation].

Id. at 1315-16. As demonstrated, a medical degree alone does not qualify a physician as
an expert in matters which require expertise in a particular field, such as toxicology. If a
witness is going to dabble in a specialty outside his or her regular area of practice, the
Court must be satisfied that the witness has acquired, whether through experience or
study, more than just a casual familiarity with the medicine and science involved.

        The Federal Judicial Center has published the Reference Manual on Scientific
Evidence which was issued to assist federal judges in recognizing the characteristics and
reasoning of reliable “science” as it is relevant in litigation and in furtherance of their
gatekeeping responsibilities. The Manual, at pages 415 to 418, provides clear guidance
under the section titled “Expert Qualifications” as to the inquiry a Court should make
regarding qualifications pursuant to Fed. R. Evid. 702 prior to allowing an expert to
testify about causation in an exposure case. These include: Does the proposed expert
have an advanced degree in toxicology, pharmacology, or a related field? If the expert is
a physician, is he or she board certified in a field such as occupational medicine? Has the
proposed expert been certified by the American Board of Toxicology, Inc., or does he or
she belong to a professional organization, such as the Academy of Toxicological
Sciences or the Society of Toxicology? Has the witness published any peer-reviewed
articles on toxicological issues? Has the witness received any research grants in the area
of toxicology? Has the expert received any local, national or international selection to
regulatory advisory panels on toxicology? Has the expert received any university
appointment in toxicology, risk assessment or related field?

        This inquiry allows the trial court to assess the level of qualifications present in
the witness. It is clear, however, that the possession of a medical degree alone will not
qualify an expert to testify on every feasible area of science and medicine. Pursuant to
Fed. R. Evid. 702, a witness must be qualified in the specific subject for which his
testimony is offered. Just as a lawyer is not by general education and experience
qualified to give an expert opinion on every subject of the law, so too a scientist or
medical doctor is not presumed to have expert knowledge about every conceivable
scientific principle or disease.6




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IV.       Does the expert have exposure information as to the alleged event?

          In Daubert, the United States Supreme Court interpreted Fed. R. Evid. 702, and
stated:

          The subject of an expert's testimony must be “scientific…knowledge.”
          The adjective “scientific” implies a grounding in the methods and
          procedures of science. Similarly, the word “knowledge” connotes more
          than subjective belief or unsupported speculation…But, in order to qualify
          as “scientific knowledge”, an inference or assertion must be derived by the
          scientific method. Proposed testimony must be supported by appropriate
          validation -- i.e., “good grounds” based on what is known, In short, the
          requirement that an expert's testimony pertain to “scientific knowledge”
          establishes a standard of evidentiary reliability.

Id. at 589-90.

        Courts have routinely held that when an expert seeking to testify is not a
toxicologist, he must still employ principles and methods of toxicology if he is to give an
opinion on an issue relating to that specialty. Mancuso, 967 F.Supp at 1445. It is
axiomatic that all chemicals can cause health problems at some concentration of
exposure. The task of a toxicological expert “is to identify a dose-response relationship
for a particular chemical (or chemical mixture) and illness, and then analyze the results to
determine whether the duration and concentration in a given instance could have caused
the alleged harms.” Cavallo v. Star Enterprise, 892 F. Supp. 756, 764 (E.D. Va. 1995),
affirmed in pertinent part by, 100 F.3d 1150 (4th Cir. 1996).7 Consequently, a
determination of the amount of exposure or dosage is an essential element of a valid
expert opinion involving injury due to a toxin. Cuevas, 956 F. Supp. at 1312.

        As is explained in an article published by the Federal Judicial Center “[t]o help
federal judges deal with Daubert issues,” dose is one of four “key scientific criteria used
to establish causation” in a chemical exposure case.8 This article explains:

          [I]t must be established that the individual’s dose over a defined period of
          time was sufficient to cause the alleged health effect. It is not adequate to
          establish that ‘some’ exposure occurred. . . . [T]here must be reasonable
          evidence that the exposure was of sufficient magnitude to exceed the
          threshold before a likelihood of ‘causation’ can be inferred.9

This point is well illustrated in both Oklahoma and the federal decisional law.           In
Christian, the Oklahoma Supreme Court stated:

          This action today is based upon the allegation that exposure of Plaintiffs to
          a particular substance caused injuries. This means that a plaintiff must
          show such exposure and that such exposure caused the injury…We hold
          that if expert testimony is necessary to show cause of an injury from



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       exposure to a toxin, 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 plaintiff…

       Christian, at 606-607. Admittedly, there can be certain cases where dose-
response information may not be as critical, such as clinically documented mesothelioma
coupled with allegations of an exposure to asbestos. However, in most cases, an expert
must have evidence that a given Claimant was exposed to a threshold level of the
chemical sufficient to cause harm prior to rendering an opinion on medical causation.

        In Moore v. Ashland Chem., Inc., 151 F.3d. 269, 278 (5th Cir. 1998), where the
plaintiff truck driver spent approximately forty-five minutes cleaning a chemical which
had leaked from its container, began to experience dizziness, watery eyes, and breathing
difficulty, and was later diagnosed with RADS (reactive airways dysfunction syndrome)
by a pulmonary specialist, the plaintiff's expert's causation opinion was excluded where
the expert did not have information on the level of the plaintiff’s exposure. The Court
noted:

       Dr. Jenkins offered no scientific support for his general causation theory
       that exposure to Tolulene solution at any level would cause RADS.
       Because he had no accurate information on the level of [plaintiff's]
       exposure to the fumes, Dr. Jenkins necessarily had no support for the
       theory that the level of chemicals to which [plaintiff] was exposed caused
       RADS.

Id. at 278 (emphasis added).

        The Reference Manual for Scientific Evidence states that an expert offering a
causation opinion in a chemical exposure case must know what the no observable effect
or threshold level is for the toxin at issue and be able to state whether the individual was
exposed above that level.10 The Tenth Circuit has held that speculating as to an injury-
causing level of exposure will not survive Daubert’s reliability prong.

       We believe a plaintiff must prove level of the exposure using techniques
       subject to objective, independent validation in the scientific community.
       At a minimum, the expert testimony should include a description of the
       method used to arrive at the level of exposure and scientific data
       supporting the determination. The expert's assurance that the methodology
       and supporting data is reliable will not suffice. Scientific knowledge of
       the harmful level of exposure to a chemical plus knowledge that plaintiff
       was exposed to such quantities are minimal facts necessary to sustain the
       plaintiff's burden in a toxic tort case. Absent supporting scientific data,
       Mitchell's [the plaintiff] estimates and Herron's [the expert] conclusions
       are little more than guesswork. Guesses, even if educated, are insufficient
       to prove the level of exposure in a toxic tort case.




                                             7
        Mitchell, 165 F.3d at 781 (citations omitted). An expert's methodology of
determining causation without a dose-response analysis is unreliable under Daubert
because it ignores “the most fundamental tenet of toxicology - toxins cause illnesses only
at sufficient dosages.” Mancuso, 967 F. Supp. at 1453. The science of toxicology is
based on the principle that there is a relationship between a toxic reaction (the response)
and the amount of poison received (the dose).11

        Generally speaking, dose is a function of the amount and the duration of the
exposure. For example, in a case involving the release of a toxic gas, the dose to which a
particular claimant was exposed would be measured by the airborne concentration of the
gas as it reached and passed by the claimant and the length of time that the claimant was
exposed to the gas. Although there is often no direct evidence of such information (i.e.,
there are rarely monitors at the claimant’s location that measured the actual concentration
and the length of exposure at the time of the event), there are well established,
scientifically valid means of estimating this information.

        Such an estimate is commonly referred to as a “dispersion analysis” or “dose
reconstruction.” A dispersion analysis would model the likely plume of the release and
the so-called “zone of danger” (i.e., the areas in which it is likely that the concentration
and duration of exposure exceeded harmful levels) by taking into account such factors as
the amount and duration of the release and the wind and weather conditions at the time.

      As is explained in the Federal Judicial Center’s Reference Manual on Scientific
Evidence:

       Evidence of exposure is essential in determining the effects of harmful
       substances. . . . [W]hen direct measures cannot be made, exposure can be
       measured by mathematical modeling, in which one uses a variety of
       physical factors to estimate the transport of the pollutant from the source
       to the receptor. For example, mathematical models take into account such
       factors as wind variations to allow calculation of the transport of
       radioactive iodine from a federal atomic research facility to nearby
       residential areas.

       While scientific evidence supporting an “exposure” is clearly necessary, dose
reconstruction evidence costing thousands of dollars to create for use in a workers’
compensation case can become cost prohibitive in all but the worst of injuries.

V.     Does the expert satisfy the other Daubert factors?

       In a chemical exposure case, the principle inquiry looks at the qualifications of the
expert and whether the expert has dose-response information prior to rendering an
opinion on causation. Failing on either prong renders the opinion unreliable. However,
the Daubert Court listed several additional factors that a trial judge should take into
account in determining the admissibility of expert scientific testimony:




                                             8
       A.      Whether the scientific theory or technique at issue can be and has
               been tested.

       Whether a theory “can be (and has been) tested” is a “key” part of the Daubert
analysis. Daubert, 509 U.S. at 593. Where an expert acknowledges that her thesis has not
been tested, her opinion does not meet the Daubert reliability standard. Hollander v.
Sandoz Pharms. Corp., 95 F. Supp. 2d 1230 (W.D. Okla. 2000), aff'd, 289 F.3d 1193,
1208 (10th Cir. 2002). Accord, Mitchell, 165 F.3d at 782 (“Without scientific data
supporting their conclusions...the analytical gap in the expert's testimony is simply too
wide for the opinions to establish causation”).

       B.      Whether the scientific theory or technique at issue has been subjected
               to peer review and publication.

        Applying Daubert, the Tenth Circuit has held that an expert opinion is unreliable
where the expert fails to subject their opinions to peer review and misses the opportunity
to have other scientists review their work and warn them of the possible flaws in their
methodology. Mitchell, 165 F.3d at 784. Accord, Koch v. Shell Oil Co., 49 F. Supp. 2d
1262, 1268 (D. Kan. 1999) (“[the peer review] factor weigh[ed] against the admissibility
of [the expert's] testimony” where “[the expert] testified that he had not ever submitted
[his] methodology for peer review to determine its validity, reliability, and
reproducibility”).

        If an expert has not published or presented his hypothesis to any professional
medical or scientific body, nor offered it for any type of peer review nor has he authored
any articles in any medical journals in which he put forth his theory espoused in this case,
he fails the peer review and publication requirement. It is the “blessing” given by the
expert’s peers in the scientific community that conveys a sense of reliability as to the
proffered opinion.

       C.      The known or potential rate of error for the scientific technique.

        The question must be ask as to whether there is a known error rate associated with
the expert’s theory. Untested, unpublished theories from an expert have an inherently
high potential rate of error and should cause the Court to scrutinize the opinions of the
expert that much more closely. See, e.g., Allison v. McGhan Med. Corp., 184 F.3d at
1321 (“because the untested theories of Allison's experts are not generally accepted ...
they obviously have a high potential rate of error.”); Brumley, 200 F.R.D. at 602 (because
expert's opinion that Viagra causes heart attacks failed the first two factors of the Daubert
analysis, “the Court cannot assess the ‘known rate of error’ for a theory that has no
empirical foundation”).

       D.      Whether the scientific theory or technique at issue has attracted
               widespread acceptance or only minimal support within the relevant
               scientific community.




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       As the Supreme Court held in Daubert, an opinion “which has been able to attract
only minimal support within the community ... may properly be viewed with skepticism.”
Daubert, 509 U.S. at 594 (citations omitted). Thus, “widespread acceptance” is still “an
important factor” in determining admissibility. Id.

        When an expert “fail[s] to point to any objective source demonstrating that their
conclusions were generally accepted by or espoused by other scientists,” the opinions
should be excluded. Mitchell v. Gencorp Inc., 968 F. Supp. 592, 601 (D. Kan. 1997),
aff'd, 165 F.3d 778 (10th Cir. 1999).

       E.      Was the expert’s opinion developed solely for litigation purposes?

       An additional factor that courts have found relevant to the reliability analysis is
whether 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.” FED. R. EVID. 702, 2000
Advisory Committee Notes (quoting Daubert v. Merrell Dow Pharms., Inc., 43 F.3d
1311, 1317 (9th Cir.), cert. denied, 516 U.S. 869 (1995).

        Courts have repeatedly excluded testimony where the expert has developed his
opinion “expressly for the purpose of testifying” and has not “done any research on his
theories outside the context of [this and other] lawsuits.” Mitchell, 968 F. Supp. at 600.
Accord, United Phosphorus, Ltd. v. Midland Fumigant, Inc., 173 F.R.D. 675, 686 (D.
Kan. 1997) (“That [the expert's] opinions were developed expressly for the purpose of
testifying weighs against a finding that his opinions are derived by the scientific
method”).

VI.    Conclusion

        Trial courts, including the Oklahoma Workers’ Compensation Court, have always
required that an expert’s opinion in a given case be reliable. Certainly, the July 1, 2005,
amendment to the Workers’ Compensation Act did not create some new prerequisite to
admissibility, implying that prior to the effective date the Court accepted unreliable
expert testimony to support a claim for benefits.

        What the legislative change has done is refine the Court’s inquiry into expert
opinion evidence that is brought before it. The statutory requirement that the Court
follow Federal Rule of Evidence 702 and the caselaw interpreting the Rule provides clear
guidance as to the level of scrutiny the Workers’ Compensation Court is now required to
give to an expert’s opinion to verify the opinion has a threshold level of reliability. Once
a party to a workers’ compensation claim has put the reliability of an expert’s opinion at
issue, the Court, acting in its gatekeeping capacity, must have an evidentiary hearing or
some process to test the opinion’s reliability. A record must be developed for an
appellate court to be able to verify the nature of the trial court’s inquiry and that the court
properly applied relevant law.
1
       See also Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 158-59 (1999).


                                                10
2
         Amos v. Spiro Public Schools, 2004 OK 4, 85 P.3d 813.
3
         See In re Breast Implant Litigation, 11 F.Supp.2d 1217, 1223 (D. Colo. 1998).
4
         See also, Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 152, (1999).
5
         See also, Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965 (10th Cir. 2001)(plaintiff’s
proposed expert, an orthopedic surgeon and professor at the University of Kansas Medical School, found
unqualified to testify because the issues lay outside of the physician’s realm of expertise).
6
         Whiting v. Boston Edison Co., 891 F.Supp. 12 (D.Mass 1995).
7
         See also Cuevas v. E.I. DuPont De Nemours and Co., 956 F. Supp. 1306, 1312 (S.D. Miss. 1997)
(“Toxicology requires a determination of what dose-response relationship exists between the element in
question and the harm that has possibly been caused.”)
8
         Eaton, Scientific Judgment and Toxic Torts – A Primer in Toxicology for Judges and Lawyers,
Journal of Law and Policy, (2004) at 39.
9
          Accord Reference Manual on Scientific Evidence (2002) at 419 (describing a three step analysis
for causation, including: “Third, the expert should offer an opinion as to whether the dose to which the
plaintiff was exposed is sufficient to cause the disease”); Mancuso¸967 F. Supp. at 1445.
10
         Reference Manual on Scientific Evidence at page 426.
11
          See Maddy v. Vulcan Materials Co., 737 F. Supp. 1528, 1533 (D.Kan.1990) (“In cases claiming
personal injury from exposure to toxic substances, it is essential that the plaintiff demonstrate that she was,
in fact, exposed to harmful levels of such substances.”)




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