Tuesday, April 11, 2006

Fourth Circuit Affirms Exclusion of Differential Diagnosis Testimony in Toxic Mold Case

A Fourth Circuit panel has issued an unpublished opinion excluding differential diagnosis testimony from plaintiffs' expert, Dr. Richard Bernstein, in a case alleging that plaintiffs' respiratory ailments were caused by toxic mold. See Roche v. Lincoln Prop. Co., No. 03-2064 (4th Cir. Apr. 7, 2006) (Widener, Gregory, & Beam, JJ.). The opinion recognizes that differential diagnosis is a reliable medical technique but holds that Dr. Bernstein did not implement it in reliable fashion.

Dr. Bernstein is no relation, presumably, to Prof. David Bernstein, who worries that differential diagnoses are sailing into court unimpeded.

posted by pn at 5:27 PM  

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Fed. R. Evid. 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, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.