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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 1 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: 2 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. 3 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 4 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 5 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 6 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. 9 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.”) 11
"THE OKLAHOMA WORKERS COMPENSATION ACT AND "