HIGH COURT TO RULE ON EXPERT TESTIMONY

WASHINGTON-The U.S. Supreme Court has agreed to review a Georgia case involving how much discretion a district judge can exercise in determining whether expert testimony is admissible.

The case, General Electric Co. vs. Robert K. Joiner, arose when Mr. Joiner claimed his exposure to polychlorinated biphenyls-better known as PCBs-had caused him to develop lung cancer. Mr. Joiner, a chief electrician for the city of Thomasville, Ga., sued General Electric and other manufacturers of electrical equipment, claiming they should be held liable for his condition.

The case went before the U.S. District Court for the Northern District of Georgia, where a judge in 1994 cited the 1993 U.S. Supreme Court ruling in Daubert vs. Merrell Dow Pharmaceuticals Inc. to disallow Mr. Joiner's use of certain expert witnesses. The Daubert ruling, which involved birth defects allegedly caused by a woman's ingestion of the antinausea drug Bendectin during pregnancy, sets criteria for federal court judges charged with deciding whether an expert's testimony is sufficiently grounded in science to be admissible.

The district court judge said the testimony of two experts in the Joiner case did not meet the criteria.

"Evidence of causation in human beings was lacking and. . .although in certain instances scientists may use some kinds of animal studies as an indication of causation of a particular human disease, in this case such support was absent because there were only two studies, they used massive doses and their findings were only preliminary," wrote the court.

Mr. Joiner appealed to the 11th U.S. Circuit Court of Appeals in Atlanta. In a 1996 ruling, two of the three judges hearing the case said the district court had gone too far in its interpretation of the Daubert decision; a third sided with the district court. General Electric appealed to the Supreme Court.

In its petition for review, GE said "one more circuit here has taken a position on the unavoidable question left unanswered by this court's decision in Daubert vs. Merrell Dow Pharmaceuticals Inc. That question is what is the standard of review to be applied by the courts of appeal when reviewing a district court's exclusion of proffered expert testimony?"

The petition noted that 10 courts have accorded trial courts wide discretion, while two-including the 11th Circuit-have held the opposite.

Mr. Joiner's attorney responded that it is not the province of the district court to decide whether it agrees with the expert's conclusion. Instead, the district court should confine itself to determining whether the methodology used to reach the conclusion is scientifically sound.

No date has been set for oral arguments.

In another case involving expert witnesses, the court agreed late last month to review a Missouri case in which a jury heard testimony from a former General Motors Corp. employee who had agreed not to testify against his former employer without written permission. Ronald Elwell had agreed to the restriction as part of his settlement of an employment suit with GM approved by a Michigan court.

But the U.S. District Court for the Western District of Missouri allowed Mr. Elwell to testify about GM fuel systems in Kenneth Baker and Steven Baker vs. GMC.

The Bakers' mother had died in a fiery crash while she was riding in a GM Blazer, and a jury awarded the Bakers $11.3 million in damages. The 8th U.S. Circuit Court of Appeals ordered a new trial, holding that Mr. Elwell was bound by the Michigan court settlement, though Mr. Elwell claimed that GM itself had broken the agreement before he testified in district court.

The Supreme Court will review whether the testimony should have been allowed.