You have probably heard of the "sick building syndrome" by now. This refers to various sicknesses that people claim to suffer from as a result of poor indoor air quality. While more and more people are claiming to be sick building victims, it is still very hard to prove, in court, that the building is the culprit.

The problem is referred to by lawyers as one of "causation." It is not enough to allege that some chemical or biological agent made you sick, you actually have to prove that the suspected substance caused the ill effects of which you have complained. It is a very fundamental notion that to prove most every lawsuit, you must establish causation. Without causation, you leave the courthouse empty.

Who proves causation? Not you, not your neighbor, not your best friend. Usually, an expert must be retained to prove causation. In the case of a sick building claim, it is often a medical doctor who is retained as an expert for the victim.

In the case of a broken leg, or harm caused by an instrument left in a person’s belly, causation is usually not hard to prove. But, causation can be very difficult to prove when the scientific field is generally new, such as this fairly new phenomenon known as sick building syndrome. In this area, there still exists much speculation, and experts must frequently rely on the more tentative studies, perhaps less relevant studies, than they otherwise might wish.

When a doctor relies on backup data that is too speculative or too remotely linked to the subject at hand, courts tend to reject the testimony, calling it "unreliable." A less kind term that has developed in the past 10 years is "junk science." Trial courts are considered to be a gatekeeper, charged with keeping junk science out of the courtroom.

Recently, in the federal appeals court decision of Heller v. Shaw Industries, the Court provided some guidance in determining when an expert has testimony that is sufficiently reliable that it will not fall as junk science.

Heller involved a Pennsylvania husband and wife who claimed that new carpet fumes made them ill. The case was dismissed by the trial court, which had ruled that reliable scientific evidence had not been produced establishing that carpet fumes were the cause of the respiratory ailments allegedly suffered. While the appeals court found that the lower court had taken too narrow of an approach on the admissibility of the scientific conclusions, it nonetheless found that dismissal of the lawsuit was appropriate because the Plaintiffs could not establish this vital causation link.

Plaintiffs had purchased a home, which contained newly installed carpeting. Not long after the carpet installation, the Plaintiffs became sick with asthma and other respiratory ailments. Their poor health lingered even after the allegedly offensive carpeting had been removed and ultimately, Plaintiffs sold the house for less than they had paid.

Mrs. Heller’s personal physician suspected that the carpeting, manufactured by Shaw Industries, was the cause of the health problems. Apparently at his suggestion, Plaintiffs hired several experts to prove their case against the carpet manufacturer, including an environmental scientist, who tested the carpet fibers, and a medical expert, who opined that volatile organic gases that were released from the carpeting caused the various health problems.

After conducting a special hearing, the trial court ruled that neither expert offered sufficiently reliable testimony and dismissed the lawsuit. The court excluded the medical testimony largely because that expert cited no published studies which indicated that the levels of gases in the Heller home caused the kinds of symptoms suffered by the Plaintiffs; the doctor failed to rule out all possible alternative causes of the illnesses; and the court found that expert ignored key evidence.

The environmental expert used various methods to conclude that there were very high dangerous gas levels in the home after the carpet was installed, that these gases came from the carpeting, and that this caused the illnesses. For a variety of reasons, all of this testimony was also excluded as being unreliable.

While the appeals court agreed that the lawsuit should have been thrown out, it opined that the trial court applied too rigid of a standard in deciding whether the experts had testimony that could be view as reliable. One important issue was wether the trial court properly excluded the doctor’s testimony on the basis that he did not rely on published materials. The trial court was critical of the doctor’s failure to refer to a published study indicating that gases at the allegedly present levels could cause the medical conditions suffered by the Plaintiffs. The appeals court ruled that it was unreasonable to always require reference to a published study, because medical opinions, in real life, are not always based on published studies.

According to the appeals court, "physicians do not wait for conclusive, or even published and peer reviewed, studies to make diagnoses to a reasonable degree of medical certainty." While such studies are important to physicians, they also make life and death evaluations regarding illness causes based on a wide variety of information from numerous sources.

In this case, the homeowner’s experts were not reliable enough to warrant consideration. Without experts, they could not prove that the allegedly offensive carpeting actually caused their illnesses. And if the Plaintiffs could not prove causation, their lawsuit had to be dismissed.

What is the lesson? If you are going to sue someone and rely on an emerging or complex scientific theory, you need a very good scientific expert that the trial court will find to be reliable. Otherwise, you will be left with junk science, hefty legal fees, and a very empty feeling inside.

Published: February 17, 1999

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Editor's Note: This article reflects the opinions of Stuart Lieberman only and not necessarily the views of this or any other publication, organization or Website owner.