Benjamin

CHARLESTON – Justice Brent Benjamin of the West Virginia Supreme Court of Appeals doesn't believe a Wendy's hamburger made Clinton San Francisco sick.

Benjamin dissented Dec. 18 from a majority opinion reviving a lawsuit San Francisco filed against Wendy's International restaurants in Kanawha Circuit Court.

The majority on Nov. 21 reversed Circuit Judge Paul Zakaib, who had thrown out San Francisco's suit after excluding testimony of doctors Peter Gregor and Ewen Todd.

Gregor treated San Francisco at Logan General Hospital. Todd directs the National Food Safety and Toxicology Center at Michigan State University.

The majority held that Gregor properly applied "differential diagnosis," eliminating all possible causes of illness except the hamburger.

Benjamin declared the method unreliable and wrote that Gregor didn't even know what San Francisco had eaten in the week before the onset of his symptoms.

"How is it possible for a physician to rule out other possible foods as the cause of Mr. San Francisco's symptoms if he was unaware of what other foods had been eaten by Mr. San Francisco?" Benjamin asked.

He wrote that Gregor should have ruled in or ruled out a ham, home cooked chicken strips, homemade beef stew, pork chops, potato salads and other items San Francisco ate.

"Moreover, how could Dr. Gregor reliably conclude that the Wendy's hamburger was the cause of his diagnosis of Mr. San Francisco's symptoms if he did not consider that no other patrons of that same Wendy's restaurant had reported any illness from eating a Wendy's hamburger on the day that Mr. San Francisco developed his symptoms, including Mr. San Francisco's wife who ate a portion of her own allegedly underdone hamburger?" he wrote.

Benjamin rejected Gregor's testimony connecting the hamburger to the symptoms due to the temporal relationship between eating and sickness as a classic logical fallacy.

"It is illogical to infer that event A caused condition B simply because A preceded B," Benjamin wrote.

As for the other doctor, Benjamin wrote, "It is rather obvious that Dr. Todd developed his theory to meet the exigencies of this litigation ..."

Todd testified that verotoxin bacteria developed in the meat for days. He testified that abusive manufacturing might cause verotoxin.

"Dr. Todd conceded, however, that verotoxin is not preformed in the absence of 'abusive' manufacturing, and that he had no evidence that the Wendy's hamburger had been subjected to such conditions," Benjamin wrote. "... his opinion was based on an assumption of fact without any evidentiary support, making it unreliable."

Zakaib granted a motion to exclude Gregor and Todd in 2006. He found that Gregor lacked qualification as an expert and he found Todd's opinion unreliable.

On appeal, four of five Justices approved testimony of both doctors.

"We have rejected any notion of imposing overly rigorous requirements of expertise," Justice Larry Starcher wrote.

Starcher wrote that vigorous cross examination, presentation of contrary evidence, and careful instruction on the burden of proof are the appropriate means of attacking shaky but admissible evidence.

He wrote that Todd explained how he reached his conclusions and pointed to an objective source to show that his conclusions were based on a scientific method.

Chief Justice Robin Davis followed with opinions in this case and another, warning trial judges to stop excluding experts without excellent reasons.

Benjamin challenged her approach in his dissent.

"It is crucial that the factor of reliability continue to be determined by the circuit court, in its gatekeeper capacity; not the jury, under the rubric of weight," Benjamin wrote. "Because reliability is properly an issue of admissibility, not weight, this is not an issue within the province of the jury to conclude."

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