("Daubert" has to do with what testimony is scientifically useful in a trial.) Note: If anyone out there has a better Daubert Explanation and Cases page I can link to, or even a more accurate definition or explanation I can put here (with attribution), I would welcome hearing from you.
( Note: SPECT Scan = "Single Photo Emission Computed Tomograph" Scan. SPECT and PET (Photo Emission Topography?) Scans are important diagnostic tools in CFS (CFIDS, M.E.) and possibly Fibromyalgia and Multiple Chemical Sensitivity cases.)
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DEDHAM, Mass.
A trial judge rejected defense arguments made in a five-day Daubert hearing and allowed the testimony of a plaintiff's expert in a toxic encephalopathy (TSE) case (Carol Rowe Rhilinger v. Leslie G. Jancics, et al., No. 93-2223, Mass. Super., Norfolk Co.).
Specifically, Norfolk County Superior Court Judge Julian T. Houston held a jury can consider the results of a Single Photo Emission Computed Tomography (SPECT) test. The court also approved of plaintiff's expert's use of a "differential diagnosis."
Carol Rowe Rhilinger allegedly contracted TSE from exposure to chemicals stored in the basement of the building where she lived. She asserted the illegal storage of the chemicals resulted in leakage and a migration of fumes to her apartment, eventually causing her brain damage.
The defendants argued that use of a SPECT brain scan to diagnose the plaintiff's TSE was not supported by valid scientific evidence, nor has it been empirically tested or studied or is it generally accepted as a diagnostic tool for TSE.
The court noted that SPECT technology has been used by the medical community for at least 15 years.
"There is no dispute that SPECT scans show abnormalities in brain function," said the court. "Neither is there a dispute that SPECT scans cannot conclusively establish the existence or non-existence of TSE in a patient. Plaintiff's experts do not opine that the SPECT scan does, in fact, establish the diagnosis. They merely assert that is one of a constellation of diagnostic tools which they used and considered consistent with their conclusion that Rhilinger suffers from TSE."
The judge also added that there was no dispute that SPECT technology is relevant to prove or disprove the other possible explanations for the plaintiff's condition.
The judge held that SPECT is "scientifically reliable" in such a toxic tort case.
Defense Expert
In a separate ruling, the court said information it had ordered produced by Environmental Sensitivities Research Inc. (ESRI) regarding the proposed testimony of defense witness Dr. Ronald Gots was relevant to the doctor's potential bias as a witness.
The court noted ESRI "refused to comply fully with the order because of its fear that information regarding membership and funding would be disclosed" to parties outside the present case.
During the Daubert hearing, the court said it would not consider Dr. Gots' affidavits unless compliance with the prior court order regarding information about the doctor's affiliation with ESRI was produced.
While he was not precluded from testifying under Daubert, Dr. Gots is presently barred from appearing at the trial until ESRI complies with the court order.
Rhilinger is represented by the Law Offices of Robert C. Autieri of North Andover, Mass. Defense counsel include Mark Granger of Morrison, Mahoney & Miller of Boston and Mark Furcolo and Joni Katz Mackler of Burns & Levinson of Boston.
Opinion available doc# 15-980130-105
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