Page 223 - Veterinary Toxicology, Basic and Clinical Principles, 3rd Edition

190 SECTION | I General

VetBooks.ir A. Was the Plaintiff Exposed to the Substance, and if So, diagnosis refers to a technique “in which physician first
rules in all scientifically plausible causes of plaintiff’s
Did the Exposure Occur in a Manner That Can Result
injury, then rules out least plausible causes of injury until
in Absorption into the Body?
B. Were Other Factors Present That Can Affect the the most likely cause remains, thereby reaching conclusion
Distribution of the Compound Within the Body? as to whether defendant’s product caused injury....” 49
C. What Is Known About How Metabolism in the Human In the medical context, by contrast, differential diagnosis
Body Alters the Toxic Effects of the Compound?
D. What Excretory Route Does the Compound Take, and sufficiently reliable to satisfy [Daubert.]”); Westberry v. Gislaved
How Does This Affect Its Toxicity? Gummi AB, 178 F.3d 257, 262 (4th Cir. 1999) (recognizing differential
E. Does the Temporal Relationship Between Exposure and diagnosis as a reliable technique).
the Onset of Disease Support or Contradict Causation? 49. Reference guide citing Wilson v. Taser Int’l, Inc. 2008 WL 5215991,
F. If Exposure to the Substance Is Associated with the at *5 (11th Cir. Dec. 16, 2008) (“[N]onetheless, Dr. Meier did not perform
Disease, Is There a No Observable Effect, or a differential diagnosis or any tests on Wilson to rule out osteoporosis and
Threshold, Level, and if So, Was the Individual these corresponding alternative mechanisms of injury. Although a medical
expert need not rule out every possible alternative in order to form an
Exposed Above the No Observable Effect Level?
opinion on causation, expert opinion testimony is properly excluded as
When considering expert qualifications: 47 unreliable if the doctor ‘engaged in very few standard diagnostic techni-
ques by which doctors normally rule out alternative causes and the doctor
A. Does the Proposed Expert Have an Advanced Degree
offered no good explanation as to why his or her conclusion remained reli-
in Toxicology, Pharmacology, or a Related Field? If able’ or if ‘the defendants pointed to some likely cause of the plaintiff’s
the Expert Is a Physician, Is He or She Board illness other than the defendants’ action and [the doctor] offered no rea-
Certified in a Field Such as Occupational Medicine? sonable explanation as to why he or she still believed that the defendants’
B. Has the Proposed Expert Been Certified by the American actions were a substantial factor in bringing about that illness.’”);
Board of Toxicology, Inc., or Does He or She Belong to Williams v. Allen, 542 F.3d 1326, 1333 (11th Cir. 2008) (“Williams also
a Professional Organization, Such as the Academy of offered testimony from Dr. Eliot Gelwan, a psychiatrist specializing in
Toxicological Sciences or the Society of Toxicology? psychopathology and differential diagnosis. Dr. Gelwan conducted a thor-
ough investigation into Williams’ background, relying on a wide range of
C. What Other Criteria Does the Proposed Expert Meet?
data sources. He conducted extensive interviews with Williams and with
fourteen other individuals who knew Williams at various points in his
CONCLUSION life.”) (involving a capital murder defendant petitioning for habeus corpus
offering supporting expert witness); Bland v. Verizon Wireless, L.L.C.,
The distinction between medical and legal understanding 538 F.3d 893, 897 (8th Cir. 2008) (“Bland asserts Dr. Sprince conducted a
of particular terminology and statements by Justice differential diagnosis which supports Dr. Sprince’s causation opinion. We
Breyer are offered in conclusion. have held, ‘a medical opinion about causation, based upon a proper differ-
Clarification of the meaning of terms, in context, is ential diagnosis is sufficiently reliable to satisfy Daubert.’ A ‘differential
diagnosis [is] a technique that identifies the cause of a medical condition
important; three examples offered in the Reference Guide
by eliminating the likely causes until the most probable cause is iso-
are, differential diagnosis, etiology, and certainty.
lated.’”) (stating expert’s incomplete execution of differential diagnosis
Toxicologists in veterinary diagnostic laboratories and
procedure rendered expert testimony unsatisfactory for Daubert standard)
other specialists may conduct a differential diagnosis
(citations omitted); Lash v. Hollis 525 F.3d 636, 640 (8th Cir. 2008)
analysis more closely contemplated by the legal definition (“Further, even if the treating physician had specifically opined that the
than some practitioners in other settings. Taser discharges caused rhabdomyolysis in Lash Sr., the physician offered
no explanation of a differential diagnosis or other scientific methodology
Differential diagnosis, for example, is an accepted method
tending to show that the Taser shocks were a more likely cause than the
that a medical expert may employ to offer expert testimony
myriad other possible causes suggested by the evidence.”) (finding lack of
that satisfies Daubert. 48 In the legal context, differential
expert testimony with differential diagnosis enough to render evidence
insufficient for jury to find causation in personal injury suit); Feit v. Great
47. From Reference Guide on Toxicology--Bernard D. Goldstein and West Life & Annuity Ins. Co., 271 Fed. App’x. 246, 254 (3d Cir. 2008)
Mary Sue Henifin.National Research Council. 2011. Reference Manual (“However, although this Court generally recognizes differential diagnosis
on Scientific Evidence: Third Edition. Washington, DC: The National as a reliable methodology the differential diagnosis must be properly per-
Academies Press. doi: 10.17226/13163. formed in order to be reliable. To properly perform a differential diagno-
48. Reference guide citing Feliciano-Hill v. Principi, 439 F.3d 18, 25 sis, an expert must perform two steps: (1) ‘Rule in’ all possible causes of
(1st Cir. 2006) (“[W]hen an examining physician calls upon training and Dr. Feit’s death and (2) ‘Rule out’ causes through a process of elimination
experience to offer a differential diagnosis...most courts have found no whereby the last remaining potential cause is deemed the most likely
Daubert problem.”); Clausen v. M/V New Carissa, 339 F.3d 1049, cause of death.”) (ruling that district court not in error for excluding expert
1058 59 (9th Cir. 2003) (recognizing differential diagnosis as a valid medical testimony that relied on an improperly performed differential
methodology); Mattis v. Carlon Elec. Prods., 295 F.3d 856, 861 (8th Cir. diagnosis) (citations omitted); Glastetter v. Novartis Pharms. Corp., 252
2002) (“A medical opinion based upon a proper differential diagnosis is F.3d 986 (8th Cir. 2001).