Vol. 18, No. 7

In Summers v. Missouri Pacific Railroad System, 132 F.3d 599 (10th Cir. 1997), the United States Court of Appeals for the Tenth Circuit held that an expert witness's testimony regarding scientific evidence may be excluded where the court determines that the expert witness has applied a scientifically valid label to a scientifically invalid diagnosis.

In Summers, the Tenth Circuit was called upon to apply the recently enunciated Supreme Court test for the admissibility of scientific evidence announced in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), which rejected the long-accepted standards for admissibility of scientific evidence set out in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

In Summers, the plaintiff's medical expert had diagnosed the plaintiff as suffering from "chemical sensitivity," a recognized scientific diagnosis. However, upon examination of the tests conducted by the expert on the plaintiff, it appeared that the expert had not conducted the tests generally accepted to be valid determinants of "chemical sensitivity," but instead had conducted tests that had been used in diagnosing "multiple chemical sensitivity," and the tests used to diagnose the same had, unlike "chemical sensitivity" tests, been the subject of much criticism in the scientific community, and had been held by other courts to be unsupported by sound scientific reasoning.

The Tenth Circuit in Summers held that the plaintiff's expert was attempting to place scientifically unsound evidence before the jury under the guise of a scientifically sound label, and upheld the trial court's exclusion of the evidence under the standards enunciated by the Supreme Court in Daubert.