Court of Appeals Division III
                               State of Washington
 
                            Opinion Information Sheet
 
Docket Number:       24320-6-III
Title of Case:       Adam Grant, et ux v. Gertrude Boccia, et vir
File Date:           03/28/2006
 
 
                                SOURCE OF APPEAL
                                ----------------
Appeal from Superior Court of Yakima County
Docket No:      00-2-02574-1
Judgment or order under review
Date filed:     09/22/2004
Judge signing:  Hon. Susan L Hahn
 
 
                                     JUDGES
                                     ------
Authored by Kenneth H. Kato
Concurring: Dennis J. Sweeney
            Stephen M Brown
 
 
                                COUNSEL OF RECORD
                                -----------------
Counsel for Appellant(s)
            Steven P. Krafchick
            Krafchick Law Firm
            2701 1st Ave Ste 340
            Seattle, WA  98121-1126
 
Counsel for Respondent(s)
            William A. Olson
            Aiken St Louis & Siljeg PS
            801 2nd Ave Ste 1200
            Seattle, WA  98104-1571
 
            Charles Edward Siljeg
            Aiken St Louis & Siljeg PS
            801 2nd Ave Ste 1200
            Seattle, WA  98104-1571
 
            Robert C. Tenney
            Attorney at Law
            PO Box 22680
            Yakima, WA  98907-2680
 
Counsel for Respondent Intervenor(s)
            M. Colleen Barrett
            Barrett & Worden PS
            2101 4th Ave Ste 700
            Seattle, WA  98121-2393
 
            Andrew Bennett Williams
            James P Richmond/ Managing Attorney
            3315 S 23rd St Ste 310
            Tacoma, WA  98405-1617
 
COURT OF APPEALS, DIVISION THREE, STATE OF WASHINGTON
 
ADAM GRANT and TAMI GRANT,                       ) No. 24320-6-III
individually and as husband and wife,            )
                                                 )
               Appellants,                       )
                                                 ) ORDER GRANTING
          v.                                     ) MOTION TO PUBLISH
                                                 )
GERTRUDE BOCCIA and JOHN DOE                     )
BOCCIA, individually and as wife and             )
husband,                                         )
                                                 )
               Respondents.                      )
 
     THE COURT has considered Respondents Boccia, Intervener American
States Preferred Insurance and others' motions to publish the court's
opinion of March 28, 2006, and the record and file herein, and is of the
opinion the motion to publish should be granted.  Therefore,
     IT IS HEREBY ORDERED that the opinion filed herein on March 28, 2006,
be and it is hereby amended by changing the designation in the caption to
read 'PUBLISHED OPINION'.
     IT IS FURTHER ORDERED that the opinion is amended by deletion on page
14 of the following paragraph in its entirety:
     A majority of the panel has determined that this opinion will not be
printed in the Washington Appellate Reports but will be filed for public
record pursuant to RCW 2.06.040.
 
     DATED:
     FOR THE COURT:
                                        DENNIS J. SWEENEY
                                        CHIEF JUDGE
 
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
 
ADAM GRANT and TAMI GRANT,                       ) No. 24320-6-III
individually and as husband and wife,            )
                                                 )
                    Appellants,                  )
                                                 )
          v.                                     )
                                                 ) Division Three
                                                 )
GERTRUDE BOCCIA and JONN DOE                     )
BOCCIA, individually and as wife and             )
husband,                                         )
                                                 )
                    Respondents.                 ) PUBLISHED OPINION
 
KATO C.J. -- Adam and Tami Grant appeal the trial court's summary dismissal
of their negligence suit.  They contend the court erred by excluding expert
testimony that Mr. Grant's fibromyalgia1 was caused by an automobile
accident and by dismissing their suit for lack of causation.  We affirm.
     On October 23, 1997, Gertrude Boccia collided with Mr. Grant's vehicle
while she was changing lanes.  The collision forced Mr. Grant's vehicle
onto the curb.  On October 9, 2000, the Grants sued Ms. Boccia, claiming
the accident caused Mr. Grant's fibromyalgia.
On December 15, 2003, Ms. Boccia moved to exclude any expert medical
testimony the trauma from the accident caused Mr. Grant's fibromyalgia.
Ms. Boccia argued under Frye v. United States, 293 F. 1013 (D.C. Cir.
1923), the proposition that trauma causes fibromyalgia is not generally
accepted in the relevant scientific community and such testimony should be
excluded.  The court granted the motion and dismissed the lawsuit because
the Grants could not otherwise prove causation.  This appeal follows.
     The Grants contend the court erred by excluding the expert opinion
testimony that trauma causes fibromyalgia.  Id. at 1014.  A witness
qualified as an expert may testify on the basis of 'scientific, technical,
or other specialized knowledge' if the testimony 'will assist the trier of
fact to understand the evidence or to determine a fact in issue.'  ER 702.
But the admission of novel scientific evidence involves two related
inquiries:  (1) whether the scientific principle or theory from which the
testimony is derived has garnered general acceptance in the relevant
scientific community under the Frye standard; and (2) whether the expert
testimony is properly admissible under ER 702.  See State v. Riker, 123
Wn.2d 351, 359, 869 P.2d 43 (1994); State v. Copeland, 130 Wn.2d 244, 261,
922 P.2d 1304 (1996) (affirming Washington's adherence to Frye despite U.S.
Supreme Court's adoption of a different test in Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993));
see State v. Dunn, 125 Wn. App. 582, 590, 105 P.3d 1022 (2005).
     In examining a Frye question, the court must determine:  '(1) whether
the underlying theory is generally accepted in the scientific community and
(2) whether there are techniques, experiments, or studies utilizing that
theory which are capable of producing reliable results and are generally
accepted in the scientific community.'  Riker, 123 Wn.2d at 359.  Under the
Frye test, we do not determine if the scientific theory underlying the
proposed testimony is correct.  Rather, we must look to see whether the
theory has achieved general acceptance in the appropriate scientific
community.  Id. at 359-60.  If there is significant dispute in the relevant
scientific community about the validity of the scientific theory, it may
not be admitted.  State v. Cauthron, 120 Wn.2d 879, 887, 846 P.2d 502
(1993), overruled in part by State v. Buckner, 133 Wn.2d 63, 941 P.2d 667
(1997).
The review of a trial court's decision to admit or exclude novel scientific
evidence is de novo.  Id.  A reviewing court will undertake a searching
review that is not confined to the record and may involve consideration of
scientific literature.  Copeland, 130 Wn.2d at 255-56.  'Decisions from
other jurisdictions may be examined as well, but the relevant inquiry is
the general acceptance by scientists, not by the courts.'  Cauthron, 120
Wn.2d at 888.
     The Grants first contend the court erred in applying Frye because the
doctrine is inapplicable here.  They argue that because the experts'
opinions were derived from accepted clinical methodologies consisting of
common and well-accepted evidence to support a conclusion on causation,
Frye has no application.  Although the core concern of Frye is only whether
the evidence being offered is based on established scientific methodology,
the analysis requires both an accepted theory and a valid technique to
implement that theory.  Cauthron, 120 Wn.2d at 889.  ''{T}he thing from
which the deduction is made must be sufficiently established to have gained
general acceptance in the particular field in which it belongs.''  Id. at
887 (quoting Frye, 293 F. at 1014).
Here, the Grants provided no evidence their experts' methodologies to
conclude trauma causes fibromyalgia were sufficiently established to have
gained general acceptance.  Indeed, the record reflects medical science is
still unclear as to the processes that trigger fibromyalgia.  The simple
assertion that their experts' methodologies are common and well-accepted to
prove causation does not take their opinions outside the ambit of Frye.
The 'use of a general methodology cannot vindicate a conclusion for which
there is no underlying medical support.'  Black v. Food Lion, Inc., 171
F.3d 308, 314 (5th Cir. 1999).
     The Grants next assert Frye is inapplicable because the theory that
physical trauma causes fibromyalgia is not new or novel.  '{E}vidence that
does not involve new methods of proof or new scientific principles is not
subject to the Frye test.'  State v. Baity, 140 Wn.2d 1, 10, 991 P.2d 1151
(2000).  This is because full acceptance of a process in the relevant
scientific community obviates the need for a Frye hearing.  State v.
Russell, 125 Wn.2d 24, 41, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129
(1995).  But here, the record reflects there is no definitive acceptance as
to the cause of fibromyalgia.  The theory that fibromyalgia is caused by
trauma is a new scientific principle subject to the Frye analysis.
     Citing Reese v. Stroh, 128 Wn.2d 300, 907 P.2d 282 (1995), a medical
malpractice case, the Grants also assert that expert opinion on the cause
of a medical condition is not subject to the Frye test.  Because their
expert was offering testimony on causation, they argue Frye is inapplicable
here.
In Reese, a doctor sought to exclude under Frye the patient's expert
testimony that the doctor's failure to treat the patient with a specific
drug therapy caused decreased lung capacity.  Id. at 303-04.  Our Supreme
Court held Frye was inapplicable because the doctor did not argue that the
theory or methodology involved in the therapy lacked acceptance in the
scientific community.  Id. at 307.  But in Ruff v. Department of Labor &
Industries, 107 Wn. App. 289, 301, 28 P.3d 1 (2001), Division One was
confronted with the issue whether an expert could testify that odor-level
chemicals present during a remodeling job caused the plaintiff's porphyria-
-a rare, mostly hereditary disorder of blood enzymes.  The plaintiff cited
Reese and claimed the expert's causation testimony was not subject to Frye.
Id.  The Ruff court distinguished Reese and held that because the
defendants argued the plaintiff's theory lacked general acceptance in the
medical community, the causation opinion squarely implicated Frye.  Id.
     Like Ruff, the central question here is whether the Grants' theory on
causation was an accepted theory.  It is therefore distinguishable from
Reese.  Ms. Boccia claimed that the theory that trauma caused Mr. Grant's
fibromyalgia lacked general acceptance in the medical community.  She also
provided supporting evidence that opinions purporting to link physical
trauma with fibromyalgia were not based on accepted scientific methodology
or theory.  Because the Grants' expert opinions were subject to Frye, we
must now determine whether evidence that trauma causes fibromyalgia is
generally accepted in the relevant scientific community.
The Grants contend physical trauma as the cause of fibromyalgia is
generally accepted.  Based on the record, they claim an overwhelming
majority of fibromyalgia experts accept physical trauma as one of the
causes of fibromyalgia.
     But the studies and articles cited by both parties and contained in
the record suggest there is still significant dispute over whether physical
trauma causes fibromyalgia.  See Dan Buskila, M.D. & Lily Neumann, PhD,
Musculoskeletal Injury as a Trigger for Fibromyalgia/ Posttraumatic
Fibromyalgia (2000) (stating '{f}ibromyalgia (FM) syndrome is a chronic,
painful musculoskeletal disorder of unknown cause.  Despite extensive
research, the etiology and pathophysiology of FM are still unclear. . . .
A traumatic incident has been suggested as a possible etiological factor
relating to the onset of FM.  Overall data from the literature are
insufficient to indicate whether causal relationships exist between trauma
and FM.'  Clerk's Papers (CP) at 140, 141.); Kevin P. White et al.,
Perspectives on Posttraumatic Fibromyalgia:  A Random Survey of Canadian
General Practitioners, Orthopedists, Physiatrists, and Rheumatologists
(1999) (stating '{t}here may be no issue more contentious in {fibromyalgia}
than the causative role of trauma,' and further studies are required to
verify the conclusion that trauma may cause fibromyalgia.  CP at 180.); Dan
Buskila, M.D. et al., Increased Rates of Fibromyalgia Following Cervical
Spine Injury (1996) (stating '{f}ibromyalgia syndrome {FMS} is a chronic,
painful musculoskeletal disorder of unknown etiology' and '{d}espite
extensive research, the etiology and pathophysiology of FMS are still
unclear. . . .  Evidence that trauma can cause FMS comes from a few case
series or case reports and is insufficient to establish causal
relationships.'  CP at 583.); Muhammad B. Yunus et al., Fibromyalgia
Consensus Report: Additional Comments, 3 Journal of Clinical Rheumatology
324 (1997) (stating 'it seems more than 51% likely that trauma does play a
causative role in some FMS patients,' but that author's opinions should not
be viewed as 'cast in stone,' because '{t}he concepts of fibromyalgia are
rapidly evolving and one must keep an open mind to new ideas and options as
they emanate from ongoing research.'  CP at 592, 593.); Frederick Wolfe,
Post-traumatic Fibromyalgia: A Case Report Narrated by the Patient (1994)
(stating 'there is no clearly agreed upon mechanism by which an injury
could cause fibromyalgia.'  CP at 615.); J.P. Robinson, et al.,
Fibromyalgia (FM) Syndrome Following Whiplash (WL) Injury? (stating '{t}he
role of trauma as a cause of fibromyalgia (FM) is uncertain.'  CP at 733.);
Graciela S. Alarcon, Fibromyalgia (stating 'why patients with fibromyalgia
experience chronic pain remains unknown.'  CP at 744); Frederick Wolfe,
M.D., The Fibromyalgia Syndrome:  A Consensus Report on Fibromyalgia and
Disability (1996) (stating '{e}vidence that trauma can cause FM, a
potential (or It Can) causal proposition, comes from a few case series or
case reports.'  CP at 846.); Kevin P. White, et al., Trauma and
Fibromyalgia: Is There an Association and What Does It Mean?, 29 Seminars
in Arthritis and Rheumatism 200 (2000) (stating '{w}hether an association
exists between trauma and FM remains a question, despite a number of
scientifically supported hypothetical constructs that could explain such an
association and a recent study documenting an apparent dramatic increase in
FM in the year after neck injuries.'  CP at 868); American College of
Rheumatology Fact Sheet, Fibromyalgia (2003) (stating '{t}he cause of
fibromyalgia is unknown.'  CP at 877).
     None of the authorities presented by either party has the effect of
persuasively establishing acceptance in the relevant community as to the
cause of fibromyalgia or the causal role of trauma in the development of
fibromyalgia.  Under Frye, the existence of such a consensus is necessary
for admissibility of expert opinion testimony that trauma following a car
accident caused Mr. Grant's fibromyalgia.  This conclusion is also
consistent with decisions reached by many courts in other jurisdictions
that have excluded evidence of fibromyalgia both under Frye and the less
stringent test enunciated in Daubert.2
     In Marsh v. Valyou, 917 So. 2d 313, 2005 Fla. App. LEXIS 20156, at *2,
the plaintiff filed an automobile negligence action alleging her
fibromyalgia was caused by four separate and unrelated automobile accidents
occurring between August 1995 and January 1998.  Prior to trial, one of the
defendants moved to prevent the plaintiff from presenting expert testimony
that one or more of the accidents caused her fibromyalgia, asserting such
evidence failed to meet the standards set forth in Frye.  Id. at *3.  The
trial court granted the defendant's motion, finding the underlying theory
of causation was new or novel within the meaning of Frye and was subject to
the Frye test.  Id. at *10-11.  The court further determined the expert
evidence had to be excluded under Frye because the overwhelming consensus
of the experts was that the evidence and data were insufficient to
establish a causal relationship between trauma and fibromyalgia.  Id. at
*11.  On appeal, the Florida Court of Appeals affirmed the trial court
ultimately finding the testimony was properly excluded under Frye, because
'no scientifically recognized connection between trauma and fibromyalgia
exists.'  Id. at *46.
     In Riccio v. S&T Contractors, 56 Pa. D. & C.4th 86, 87 (2001), the
defendants sought to exclude evidence of a causal link between a deck
collapse and the plaintiff's fibromyalgia.  The court found that because
none of the authorities presented by the plaintiff established a consensus
in the relevant scientific community as to the cause of fibromyalgia or of
the particular causal role between trauma and the onset of fibromyalgia,
such evidence was inadmissible under both Frye and Daubert.  Id. at 111,
119.
In Black v. Food Lion, Inc., 171 F.3d 308 (5th Cir. 1999), the plaintiff
slipped on the floor of the defendant's supermarket and was injured.  Her
treating physician thereafter diagnosed her as suffering from fibromyalgia.
The trial court permitted the plaintiff's expert to testify regarding
causation of the fibromyalgia.  The defendant appealed, contending the
evidence was inadmissible under Daubert.  The Fifth Circuit reversed,
noting '{t}he underlying predicates of any cause-and-effect medical
testimony are that medical science understands the physiological process by
which a particular disease or syndrome develops and knows what factors
cause the process to occur.  Based on such predicate knowledge, it may then
be possible to fasten legal liability for a person's disease or injury.'
Id. at 314.  The court then concluded no one knew the exact cause of
fibromyalgia and expert testimony linking the fall to this condition was
unreliable.  Id.
     In Vargas v. Lee, 317 F.3d 498 (5th Cir. 2003), the Fifth Circuit
revisited the admissibility of expert testimony on the cause of
fibromyalgia.  The testimony of the plaintiff's expert that the
fibromyalgia was caused by a motor vehicle accident was admitted by the
trial court.  Id. at 500.  On appeal, the Fifth Circuit determined that
scientific understanding of fibromyalgia had not progressed sufficiently
since Black, 171 F.3d 308, to permit the admission of the expert's
testimony.  The court thus concluded medical science had not determined
with any degree of reliability that trauma causes fibromyalgia.  Vargas,
317 F.3d at 501.
In Wynacht v. Beckman Instruments, Inc., 113 F. Supp. 2d 1205 (E.D. Tenn.
2000), the court held that expert testimony of a causal relationship
between a chemical spill at the defendant's laboratory and the plaintiff's
fibromyalgia was unreliable and inadmissible under Daubert.  In so holding,
the court stated there was a fundamental distinction between the treating
physician's ability to render a medical diagnosis based on clinical
experience and the physician's ability to render an opinion on causation of
the plaintiff's injuries.  Id. at 1209.  The court thus determined '{t}he
ability to diagnose medical conditions is not remotely the same, however,
as the ability to deduce, delineate, and describe, in a scientifically
reliable manner, the causes of those medical conditions.'  Id.
     Finally, in Maras v. Avis Rent A Car System, Inc., 393 F. Supp. 2d 801
(D. Minn. 2005), the married parents sued a rental car company, claiming a
minor accident between the wife and an employee while the wife was
returning her rental car caused her fibromyalgia.  Under Daubert, the court
held the plaintiffs' expert testimony regarding the causation of
fibromyalgia was not sufficiently reliable to be admissible.    Id. at 810.
     Here, given the clear disagreement in the relevant scientific
community as to the cause of fibromyalgia, which conflict has also been
recognized in other jurisdictions across the country, the trial court
properly concluded the Grants' proffered expert testimony was subject to
the Frye test and was inadmissible.  Until medical science determines with
sufficient reliability and acceptance that a causal relationship exists
between trauma and fibromyalgia, such evidence is inadmissible under the
Frye test as adhered to by this state.
Affirmed.
 
                                        Kato, C.J.
 
WE CONCUR:
 
     Sweeney, J.
 
     Brown, J.
 
     1  Fibromyalgia is defined as '{c}hronic pain in muscles and soft
tissues surrounding joints.'  Taber's Cyclopedic Medical Dictionary 728
(17th ed. 1993).
     2  In Daubert, 509 U.S. at 589-94, the U.S. Supreme Court rejected the
Frye general acceptance standard for determining the admissibility of
scientific evidence and announced a new standard for admitting both novel
and well-accepted scientific evidence:  the evidence must pertain to
'scientific knowledge' defined as falsifiable scientific theory, capable of
empirical testing.  Under Daubert, it is the trial judge's task to
determine 'whether the reasoning or methodology underlying the testimony is
scientifically valid.'  Id. at 592.