Depending upon the theory of exposure, general causa- tion testimony may be provided by a toxicologist, microbiologist, chemist, or similar expert. One or more of the plaintiff’s physicians will usually provide testimony that the plaintiff’s illness was actually caused by a harmful expo- sure in the defendant’s building. To the extent that causation is disputed, the plaintiff’s ex-
pert should be prepared to support his opinion with medical and scientific literature, preferably research that has been sub- jected to peer review, as well as rely upon his or her own professional experience. The admissibility of causation testi- mony will often depend upon whether it is supported by sound scientific principles. In federal courts, those opinions will be admitted only if they satisfy the criteria enunciated by the Supreme Court in Daubert v. Merrill Dow Pharmaceuticals, 590 U.S. 579 (1993) and its progeny. 7
Maryland state courts apply the
Frye/Reed standard, which provides that parties seeking to introduce evidence based upon a novel scientific technique or methodology must first demonstrate that the technique or methodology is considered reliable by those qualified to make such an assessment. 8
New MTLA Women’s Caucus by Nicole Schultheis
The MTLA Women’s Caucus met for the first time on
September 11, 2000 at MTLA headquarters. We are a self-formed group, and as yet have no organized rules or by- laws. We merely met to discuss ways to increase the involvement of women in MTLA, plan events that could allow women to get more out of their MTLA membership, and organize other networking opportunities that MTLA women might enjoy and benefit from. Approximately 50 women to date have expressed an interest in forming the Caucus and in becoming more involved in it. Some of the activities that are in the works include:
• A series of Happy Hours and lunchtime get-togethers at locations spread around the state;
However, medical opinions are
usually held to be admissible to the extent the physician’s opinions are based upon his medical experience, as opposed to novel techniques or new scientific tests, provided the phy- sician holds those opinions to a reasonable degree of medical probability. 9
A temporal connection between an exposure and the on- set of illness, standing alone, may be insufficient to establish medical causation. However, to the extent a physician con- ducts a differential diagnosis, a technique by which alternative causes of an illness and diagnosis are considered and elimi- nated, his opinion that the plaintiff’s injuries were caused by conditions in the building is more likely to be admitted.10
Trial Counsel should try to simplify the case as much as pos-
sible. Since most jurors will not have heard of sick building syndrome, but will be able to identify with some forms of occupational illnesses, the plaintiffs’ illnesses should be pre- sented in such terms. When a number of plaintiffs have fallen ill, counsel should also focus on the common pattern of ill- ness. A theme should be established that conditions in the building must be to blame for the plaintiffs’ illnesses because the plaintiffs had nothing in common with one another in terms of age, gender, living arrangements, and previous ex- posures to toxins, other than the fact that they worked in the same building and became ill while doing so. The lack of a plausible alternative explanation for the plaintiffs’ illnesses may be the most effective way in which to overcome a jury’s skep- ticism towards environmental and medical concepts that are foreign to them.
7
Effective December 1, 2000, Rule 702 of the Federal Rules of Evidence requires, as a condition to the admission of expert testi- mony, that the testimony be based upon sufficient facts or data and be the product of reliable principles and methods that have been reliably applied to the facts of the case.
8 9
Reed v. State, 283 Md 374, 381, 391 A.2d 364 (Md. 1978) (citing Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923)).
Owens Corning v. Bauman, 125 Md. App. 454, 726 A.2d 745, 767 (1999).
10See, e.g. Berry v. CSX Transp. Inc., 704 So.2d 633 (Fla. 1997). Winter 2001 Trial Reporter 15
• One or more educational programs aimed at women trial lawyers;
• A possible retreat, perhaps combining spa-like relaxation with a substantive program; and
• Supporting MTLA as needed in its efforts to reach out to members of the Women’s Legislative Caucus in Annapolis.
The ATLA Women’s Caucus has proved to be a viable political force in Washington, D.C. We think we can do the same in Maryland. Among MTLA’s women members, many are new to the practice of law or have only recently opened their own offices. There are several issues we might want to discuss solely in the company of other female colleagues and not at a general women’s bar gathering. There are also a number of ways that the relationships women form with other women trial lawyers can benefit the organization as a whole. For example, it is helpful for women on the Board of Gover- nors to get to know the up and coming women who might be called upon to serve on various committees -- not just the Women’s Caucus -- or be considered for other roles useful to the organization in the future. Having a Women’s Caucus may also be a helpful recruit- ing tool to get more female members of MTLA. Many women feel they have little time for organizational activities and find they must choose between being active in a women’s bar group and MTLA. Many times, MTLA loses out. This is the reason so many of the women who attended the orga- nizational meeting, or expressed an interest in being involved, said they had not previously been very involved in MTLA. Clearly women are underrepresented in the trial bar, as
compared to the defense firms and business-oriented prac- tices. This may be changing. Still, womens’ bar groups are typically populated by transactional lawyers, or other women who don’t do torts, and if they do, they represent the defense side only. MTLA now provides a place where women trial lawyers can get the skills, tips, support, and let-it-all-hang-out-ness that they need and that is not pro- vided by any other bar organization in this state. Are you interested in learning more and being notified of our activities? Call Jennifer Soldati at MTLA headquarters or email her at
mtla@mdtriallawyers.com with a message headed “Women’s Caucus” and we’ll put you on the list.
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