Summary
In Shilling v. Mobile Analytical Services, Inc. (1992), 65 Ohio St.3d 252, the Ohio Supreme Court held that a non-physician neurotoxicologist was qualified pursuant to Evid. R. 702 to render an opinion that the ingestion of gasoline caused injury to the brain and nervous system.
Summary of this case from State v. StatonOpinion
No. 91-2245
Submitted September 16, 1992 —
Decided December 16, 1992.
APPEAL from the Court of Appeals for Union County, No. 14-91-11.
Appellants John R. Shilling and his family allege various personal injuries caused by drinking water contaminated with gasoline during the period from October 1985 to December 1987. A physician, engaged by the defendant, diagnosed John Shilling's condition as multiple sclerosis. Plaintiffs sued appellee Mobile Analytical Services, Inc. ("MASI"), alleging negligence in testing the water, in failing to warn them that the test was not adequate for detection of gasoline, and in failing to refer them to a laboratory that could perform such a test, and breach of contract.
In the complaint the following facts were alleged. Shilling suspected that his well water might be contaminated with gasoline or diesel fuel. On October 24, 1985, MASI tested a sample of water that Shilling had submitted. The results did not indicate the presence of gasoline or diesel fuel in the water. Shilling and his family continued to drink the water. Appellant again had MASI test the water in October 1987, and again the results were negative. In December 1987 Shilling learned that tests by another laboratory indicated the presence of gasoline in the water.
MASI moved for summary judgment asserting, among other things, that appellants had not shown by way of expert testimony that the consumption of contaminated water was the direct and proximate cause of their alleged injuries. In opposing the motion for summary judgment, plaintiffs relied on the affidavit of Raymond Singer, Ph.D.
Dr. Singer is a neurotoxicologist/psychologist. He concluded, on the basis of his examination, a review of scientific literature and the available medical records, that the appellants were suffering effects as a result of drinking contaminated water. Singer averred that John Shilling suffered from brain damage, and that toxicity from the contaminated water was a significant contributing factor. Mrs. Shilling, in singer's opinion, suffered from brain dysfunction caused by the contaminated water. In addition, Singer testified that one of the children likely suffered some effect from the exposure to toxins.
The trial court held that because any opinion on the cause of physical problems is a medical diagnosis, an expert who renders such an opinion must be a medical doctor. As Dr. Singer is not a medical doctor, but a Ph.D., the trial court refused to consider his affidavit. The court of appeals affirmed the trial court.
Grieser, Schafer, Blumenstiel Slane Co., L.P.A., C. Richard Grieser and J.B. Blumenstiel, for appellants.
Bailey Slavin, Richard W. Bailey and Richard C. Slavin, for appellee.
Clark, Perdue Roberts Co., L.P.A., and Dale K. Perdue, urging reversal on behalf of amicus curiae Ohio Academy of Trial Lawyers.
Porter, Wright, Morris Arthur, William M. Todd and Randall W. Knutti, urging affirmance on behalf of amicus curiae Ohio State Medical Association.
The issue presented is whether an expert witness who is not a physician, but a Ph.D. who specializes in neurotoxicology, is qualified to render an opinion that the ingestion of gasoline caused injury to the brain and nervous system. For the reasons that follow, we hold that such an expert can be so qualified.
Expert testimony is governed by Evid.R. 702: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." We must therefore determine the extent to which Dr. Singer is qualified to render an opinion on the cause of the Shillings' disabilities based on his "knowledge, skill, experience, training, or education."
Dr. Singer has an extensive and impressive vita dealing with psychology, biological effects on the central nervous system, and neurotoxicology. He has been a fellow at the National Institute of Health and at the Mount Sinai School of Medicine, has won the NIH National Research Service Award, and has a long list of publications dealing with neurotoxicity and its effects. He is qualified by "knowledge, skill, experience, training, or education" to testify on the subject of toxicity of gasoline on the human nervous system.
Dr. Singer is not a physician but a Ph.D., and the courts below cited Darnell v. Eastman (1970), 23 Ohio St.2d 13, 52 O.O.2d 76, 261 N.E.2d 114, as precedent to indicate that only a medical doctor can testify as to the causal connection between an injury and a subsequent physical disability. The syllabus in Darnell states as follows:
"Except as to questions of cause and effect which are so apparent as to be matters of common knowledge, the issue of causal connection between an injury and a specific subsequent physical disability involves a scientific inquiry and must be established by the opinion of medical witnesses competent to express such opinion. In the absence of such medical opinion, it is error to refuse to withdraw that issue from the consideration of the jury." (Emphasis added.)
Darnell does not resolve the issue we are asked to decide. The somewhat ambiguous term "medical witnesses" does not require that such witnesses be medical doctors. Many issues of medical diagnosis involve areas of expertise. Doctors often rely on lab studies performed by experts who are not licensed physicians. For instance, a doctor may give a medical diagnosis where the diagnosis relies upon the test results of a chemist or technician to determine blood-alcohol content (provided the chemist is qualified and the test results have been properly admitted).
Dr. Singer is qualified to testify that the ingestion of gasoline caused injury to the brain and nervous system. He may also be qualified to testify as to the probable physical effects of such damage on the human system. If, however, the actual symptoms of the plaintiffs were caused by a medical condition which is beyond the expertise of Dr. Singer, then Dr. Singer would not be qualified to express a conclusion on the proximate cause of those symptoms. Such testimony would require the expertise of a witness qualified to evaluate both possible causes. Even so, the testimony of Dr. Singer that ingestion of gasoline caused damage to the brain would be admissible. It meets the test of Evid.R. 702. The fact that additional expert testimony may be required to establish a connection between such brain damage and all of the symptoms claimed by plaintiffs does not bar conclusions which do fall within Dr. Singer's expertise. The trial court erred in so holding.
The issue presented is not whether Dr. Singer's expertise allows him to testify that all of the symptoms exhibited by plaintiffs were caused by contaminated water. Those issues pertain to measurement of damage and are not before the court at this time.
The pivotal point is this: If the plaintiffs suffered brain injury caused by the toxic poisoning, that is sufficient to overcome a motion for summary judgment. It at least entitles plaintiffs to nominal damages. See Tootle v. Clifton (1871), 22 Ohio St. 247, 253. The trial court erred in granting summary judgment, as there remain material issues of fact for a jury to determine.
Judgment reversed and cause remanded.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT and RESNICK, JJ., concur.