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FIBROMYALGIA CLAIM GETS “FRYE” ED

Grant v. Boccia, 133 Wn.App. 176, 137 P.3d 20 (2006)
 

In Grant v. Boccia, Division III of the Washington Court of Appeals adopted the argument put forth by Colleen Barrett and other defense counsel that because the causal relationship between trauma and fibromyalgia is not generally accepted in the relevant scientific community, expert testimony linking the plaintiff’s fibromyalgia to a car accident was properly excluded. 

That decision should provide useful guidance to litigants, courts, attorneys, insurers handling and evaluating fibromyalgia claims.  Fibromyalgia syndrome is a chronic painful disorder of unknown cause.  Even though the cause of fibromyalgia is unknown, plaintiffs’ attorneys have regularly made claims and brought suits based on the proposition that auto accidents caused their clients to have fibromyalgia.

Until now, Washington trial courts have rendered inconsistent decisions regarding the validity of such claims.  The decision in Grant clarifies those inconsistencies and throws out expert testimony claiming that trauma causes fibromyalgia.

In this case, plaintiff Adam Grant claimed he contracted fibromyalgia from a car accident with defendant Gertrude Boccia.  Boccia’s defense attorneys, William Olson, Robert Tenney, and Charles Siljeg, successfully brought a motion to exclude evidence that the auto accident caused Grant’s fibromyalgia, and that decision led the trial court to dismiss Grant’s claims. 

Plaintiff Grant appealed that decision.  Grant’s UIM carrier American States intervened and retained Barrett & Worden to handle the appeal.  Working with American States counsel Drew Williams, Colleen Barrett and Greg Worden briefed the case on behalf of the insurer and Colleen successfully argued it before the Court of Appeals.

The key issue on appeal was whether the Frye standard applied to exclude testimony from Grant’s doctors that his fibromyalgia was caused by the auto accident trauma. Under the Frye standard, the court, in determining whether to admit novel scientific evidence, looks to see whether the theory advanced has achieved general acceptance in the appropriate scientific community, and if there is significant dispute about the validity of the scientific theory, the evidence may not be admitted.

The Court of Appeals applied the Frye standard to affirm that exclusion of testimony, holding that, “given the clear disagreement in the relevant scientific community as to the cause of fibromyalgia, which has been recognized in other jurisdictions across the country, the trial court properly concluded that the Grants’ proffered expert testimony was subject to the Frye test and was inadmissible.”   

Plaintiff Grant has petitioned for Washington Supreme Court Review, and the Washington Supreme Court has not yet decided if it will accept that petition.