Filed: November 17, 2000
IN THE SUPREME COURT OF THE STATE OF OREGON
NANCY R. JENNINGS,
Respondent on Review,
v.
BAXTER HEALTHCARE CORPORATION,
a Delaware corporation, and BAXTER
INTERNATIONAL INC., a Delaware corporation,
Petitioners on Review,
and
DOW CORNING CORPORATION, and
WILLAMETTE FALLS HOSPITAL,
Defendants.
(CC A 9405-03148; CA A92690; SC S45239)
En Banc
On review from the Court of Appeals.*
Argued and submitted January 12, 1999.
Jonathan M. Hoffman, of Martin, Bischoff, Templeton, Langslet & Hoffman LLP, Portland, argued the cause and filed the briefs for petitioners on review.
Linda K. Eyerman, of Gaylord & Eyerman, P.C., Portland, argued the cause and filed the briefs for respondent on review.
David B. Smith, Tigard, and Martin S. Kaufman, of Atlantic Legal Foundation, New York, filed briefs on behalf of amici curiae Robert K. Adair, Bruce N. Ames, Patricia A. Buffler, Michael Gough, Joshua Lederberg, Rodney Nicholas, Robert Nolan, Dimitrios Trichopoulos, M.D., Arthur Canfield Upton, James D. Watson, James D. Wilson, and Richard Wilson. Paul A. Cooney, of Cooney & Crew, P.C., Portland, filed a brief on behalf of amicus curiae Oregon Medical Association.
Roy Pulvers, of Lindsay, Hart, Neil & Weigler, LLP, Portland, filed a brief on behalf of amicus curiae Oregon Association of Defense Counsel. R. Daniel Lindahl, of Bullivant, Houser, Bailey, Portland, filed a brief on behalf of amici curiae Defense Research Institute and International Association of Defense Counsel.
William B. Crow, of Miller, Nash, Weiner, Hager & Carlsen LLP, Portland, filed a brief on behalf of amicus curiae Product Liability Advisory Council, Inc.
David F. Sugerman, of Paul & Sugerman, PC, Portland, and J.P. Toby Graff, of Graff & O'Neill, Portland, filed a brief on behalf of amicus curiae Oregon Trial Lawyers' Association. VAN HOOMISSEN, J.
The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
*Appeal from Multnomah County Circuit Court, Frank L. Bearden, Judge. 152 Or App 421, 954 P2d 829 (1998).
VAN HOOMISSEN, J. In this product liability action, plaintiff appeals from a defense verdict. She alleges that she was exposed to silicone from breast implants that leaked and ruptured, causing her personal injuries. The Court of Appeals reversed and remanded for a new trial, holding that the trial court committed reversible error in excluding certain opinion testimony of plaintiff's expert witness. Jennings v. Baxter Healthcare Corp., 152 Or App 421, 954 P2d 829 (1998). Defendants seek reversal of the Court of Appeals' decision and reinstatement of the trial court's judgment. For the reasons that follow, we affirm the decision of the Court of Appeals.
I. FACTS
In 1978, plaintiff received silicone gel breast implants following a bilateral mastectomy.
(1) Both implants partially deflated: the first in 1980 (which was replaced), the second in 1992. In 1993, plaintiff had the implants surgically removed, at which time it was discovered that one implant had ruptured. Plaintiff filed this action in 1994, alleging that silicone from the implants had migrated throughout her body and caused personal injuries. Defendants maintained that plaintiff's symptoms were caused by fibromyalgia and were not the result of the breast implants.
(2) At trial, plaintiff called Dr. Grimm to testify about medical causation. Grimm is a board-certified neurologist with an advanced degree in neurophysiology.
(3) Defendants did not question Grimm's qualifications to determine the causes of neurological deficits in patients in general, but did challenge Grimm's opinion testimony regarding causation in this case. In response to defendants' admissibility challenge, the trial court conducted an in limine hearing as directed by State v. O'Key, 321 Or 285, 307 n 29, 899 P2d 663 (1995).
(4) At the hearing, Grimm testified that he became interested in the neurological consequences of silicone in 1993, when he examined "two very sick women." As a result, he began to examine women who had silicone breast implants. At the time of plaintiff's trial, he had examined about 50 women, 45 of them in 1994. Grimm testified that, among the women he had examined, he found "a unique pattern that I had never seen in any other neurologic disease in this sample of women. Basically two features. One was that they were all relying on vision for their balance, because there was something wrong with their inner ear in the absence of the usual things of trauma, concussions, tumors, infections, genetic histories, et cetera. "And the second thing was that while all of them had -- I can't say all, but we'll say 95 percent -- had patterns and complaints of tingling in their fingers and so forth, most of them were unaware that there was a loss of sensation, actual physical loss of sensation to touch, in their fingers and toes."
Grimm found that 43 of the 45 women he had examined in 1994 had vestibular difficulties:
(5) "I had never seen in my career widespread neurologic disorders, or read about as a neurologist this -- what I thought was a unique pattern. When 45 women come in, they're sent to me from different places, and they have different implant stories, different health histories, different physical troubles, past histories, and so forth. And the unique thing was that there was an extraordinarily high correlation, 95 percent had the combination of unusual sensory patterns and the inner ear."
(Emphasis added.) Grimm further testified that the pattern he had observed in the women was distinguishable from a cross section of the population at large. He indicated that the combination of the two conditions is extremely rare, even among people with neurological disorders. Grimm acknowledged that his findings had not been published in any medical literature or subjected to peer review.
Grimm examined the women in his study as follows: First, he performed "a classic neurologic examination." That is, he mapped the areas where the patient had lost sensation using "pins and brushes, with [the patients'] eyes closed, going back and forth and making marks on their skin, in exactly what areas of hands or a foot * * * where the reception was down. And I would do this in various ways to test the veracity of the patients."
Second, he sent the patients to the vestibular laboratory at Good Samaritan Hospital in Portland. That laboratory measured each woman's inner ear function. With some of the women, Grimm had additional tests performed. In an attempt to determine the cause of the women's symptoms, Grimm then performed a differential diagnosis.
(6) In a differential diagnosis, a doctor develops a list of all diseases that might cause a patient's symptoms and then, by a process of elimination, narrows the list. Mary Sue Henifin, Howard M. Kipen, and Susan R. Poulter, Reference Guide on Medical Testimony, 463, in Federal Judicial Center, Reference Manual on Scientific Evidence (2d ed 2000) (hereinafter Reference Guide on Medical Testimony). Grimm also examined the women's histories and possible exposures for other causes of the same symptoms. Silicone was the only common exposure he found among the women. Grimm also considered the research of others on animals. Respecting Grimm's ultimate conclusions about medical causation, plaintiff's counsel asked:
"* * * [H]ave you limited your involvement and workup and conclusions that you would express today to your field of expertise -- that is, to say, neurology -- and drawing conclusions about the relationship between silicone exposure and the neurological ramifications of these women's health?
"A. Yes."
Plaintiff's counsel then introduced the subject that lies at the heart of this case, viz., Grimm's opinion as to the cause of plaintiff's condition:
"Q. And have you formed an opinion to a reasonable medical probability based on established and accepted medical and scientific methodologies that silicone has caused a condition in these women?
"A. Yes. I think there's unquestionably a very strong correlation. What I don't understand is the mechanism yet. That, I'm working on. I cannot say that I have got to that point in my work, that I understand the mechanism. It's unquestionable about the association in these patients with their unusual neurological picture.
"Q. Are you in a position, then, based on your work and the application of scientific methodology, to express opinions based to a reasonable scientific probability, one, that a silicone-related neurological condition exists?
"A. Yes.
"Q. And, two, based on your evaluation of [plaintiff], she has the signs and symptoms of such a condition?
"A. Oh, yes. Easily."
(Emphasis added.) It appears that plaintiff's counsel intended the foregoing exchange to be -- and that the trial judge and defendants accepted it as -- a statement that, in Grimm's opinion, plaintiff's condition was caused by the ruptured silicone gel breast implants. The trial judge then examined Grimm. The judge apparently had understood Grimm to have testified that the conditions he had observed in the women were not proved by any scientific study. Grimm clarified that point:
"Oh, we have elegant proof of the involvement of the eighth nerve, which is the inner ear, and I'm doing the science right now. I haven't published it yet, because I'm waiting to take a two-year look at this whole problem.
"You couldn't ask for better -- for better proof or better science at the present time with respect to inner ear function. "What I don't understand yet is the mechanism for the other half of the equation, is the sensation."
The judge asked Grimm whether his technique could be "tested." Specifically, the judge asked whether Grimm had used a questionnaire because, "if [you] have a questionnaire, they can look at that and see if you asked the right questions and what answers you got." Grimm responded that he had not used a questionnaire, but that he had used the "classic technique" of "taking a careful clinical history." The judge asked Grimm whether he had submitted his notes and documentation for peer review. Grimm responded that
"these are studies in progress. I have not submitted this for publication, at which time a very -- as you can understand, a critical review goes with a jury of my peers, on whether or not I have followed this very first rule of all clinical examinations."
The judge asked Grimm whether his technique had a known or potential rate of error. Grimm responded that the potential error rate appeared to be about five to seven and one-half percent. According to Grimm, the laboratory data on balance was "the best data in the world on measurement error in this business." The judge asked Grimm about "the degree of acceptance in the relevant scientific community, widespread acceptance of your particular theory or technique." Grimm responded:
"I have no theory at the present time, and I haven't published a thing yet. I'm still in my -- the studies are in progress. And I haven't -- I presented this at a science fair from my own institution, which is sort of an annual program for work in progress, but I have not yet presented this data yet, because it's not complete, to any scientific meeting."
The judge then asked Grimm about his sample group. Grimm noted that most of the 45 women he had examined had been referred to him by rheumatologists and immunologists who suspected neurological problems. About 25 percent were referred to him by attorneys. Grimm stated: "They were sent to me very specifically. It's a very biased sample of people." The judge asked Grimm how he knew that the women were distinct from a cross section of the general population. Grimm responded that, in his practice, he had examined "maybe 10,000 individuals for neurologic diseases." He added that he sees only patients "who complain if something is going wrong with their machinery, in terms of balance or vision or whatever, that has to do with the nervous system." Generally, his patients have severe problems; general practitioners see patients with lesser problems. Finally, the judge questioned Grimm about his use of the word "condition," rather than the word "disease." Grimm explained:
"I think it's probably best to err on the conservative side of things. In the first stages of any observations, the first stage of science, is just to write down what you see and what you hear and what the evidence is, make as careful observations as you can and leave off the words that sort of prejudge, like a 'disease.' If somebody has been intoxicated with somebody [sic] and has a set of neurologic symptoms and you take the thing that's intoxicating them and it gets better, you might not call it a disease but a disorder, dysfunction, or something like that. And I try to not use the emotional labels on it. A lot of those labels will prejudge a situation."
Plaintiff's counsel then examined Grimm:
