Steven Babitsky, Esq.

The court of appeals of Oregon dealt with Plaintiff, Miller, who was in a minor accident and later alleged fibromyalgia as a result of the accident. The court excluded the plaintiff’s medical experts who were to testify as to causation.

The court found that although there was no general medical acceptance of the relationship between trauma and fibromyalgia, this was not required.

The court stated:

We disagree with the trial court. As the court said in Marcum, the general acceptance of a theory of causation in the medical community is certainly relevant to the determination of the scientific validity of a theory, but its absence is not disqualifying. Id. at 250-53 (absence of corroboration of the theory of medical causation through studies and comparisons is not a basis for exclusion of a theory of causation that is biologically plausible); see Jennings, 331 Or at 308-09 (although the degree of acceptance in the relevant community is a factor under O’Key, the admissibility of scientific evidence does not depend on peer acceptance or publication); Kennedy v. Eden Advanced Pest Technologies, 222 Or App 431, 446, 193 P3d 1030 (2008) (a difference of opinion in the scientific community alone is not a basis to exclude scientific evidence).

Here, plaintiffs’ experts supported their theory that physical trauma can cause fibromyalgia with evidence from their own clinical experience that there is a high correlation between physical trauma and fibromyalgia, peer-reviewed medical literature, and studies describing a possible neurological mechanism of causation. Freeman, an epidemiologist, described the process by which he determines whether a factor belongs in the causal framework, including an analysis of “plausibility,” temporal relationship, and alternative explanations. In addressing plausibility, Freeman described a condition known as central sensitization, thought to be a mechanism of fibromyalgia. The condition, recognized in the medical literature and thought to be brought on by trauma, exists when the brain and spinal cord interpret a normally nonpainful stimulus as painful. Freeman also addressed the temporal relationship of Sherri’s fibromyalgia to the car accident, and explained that Sherri’s development of the condition was well within the typical time frame for the development of fibromyalgia after a traumatic event. Freeman also explained that, although Sherri’s medical history showed that she had several preexisting conditions that were potentially related to central sensitization and “was somewhat fragile,” until the accident, there was no record of escalating and increasingly frequent complaints of spreading pain, as characteristic of fibromyalgia.

Plaintiffs’ evidence is of the type that the court in Jennings and Marcum said is scientifically valid under the Brown/O’Key factors. It is true that defendant’s witness, Dr. Wolfe, contradicted Freeman, based on his own conclusion that there is no consensus in the medical community as to a connection between physical trauma and fibromyalgia, and his own conclusion that evidence to date showing a relationship between the two is unreliable because it has depended on patient self-reporting. Those issues are relevant but are for the trier of fact to consider in weighing the evidence; they are not dispositive in the court’s function as a gatekeeper to admit or exclude expert evidence. O’Key, 321 Or at 301 n 18 (“A trial court, acting as a gatekeeper, does not sit as a trier of fact to determine which side has presented the more credible (or more persuasive) expert or scientific evidence.”). Rather, the trial court’s function was to determine whether the offered evidence was based on scientifically valid principles. Id. at 303. We conclude here that it was. The trial court therefore erred in excluding the testimony of Brown and Freeman, and we reverse the judgment.


Here is a link to the case:,A164445&hl=en&as_sdt=6,30