Clearly annoyed, the 7th Circuit Court attacked an ALJ’s ruling on expert evidence as “circular,” “unscientific” and “anti-intellectual.” At issue was a conflict between the prevailing medical view on the cause of elbow injuries (repetitive motion plus force) and the idiosyncratic opinion of an OSHA-endorsed expert that repetitive motion alone must cause elbow injuries. Asked about seemingly contrary evidence that no one else performing the same work had an elbow injury, the expert stated that, while evidence of other workers’ injuries might confirm his view, evidence of the absence of other injuries could not disprove it. The 7th Circuit took exception: “Such a heads-I-win-tails-you-lose declaration does more to make a witness look like a quack than it does to support reliance on the witness’s approach.”

The 7th Circuit had already remanded this issue to the ALJ once for an explanation of how, in this case, the minority view should prevail over the majority view. The ALJ’s explanation on remand merely parroted the expert’s opinion on the (lack of ) effect of contrary evidence and noted that even if the complainant were peculiarly susceptible to elbow injury based only on repetitive motion, the employer “takes [the] workers as they are.” The Court rejected the ALJ’s arguably unreasoned reliance on the expert and vacated the OSHA citation. The 7th Circuit says, “[j]udges and other lawyers must learn how to deal with scientific evidence and inference.” Caterpillar Logistics, Inc. v. Perez, No. 13-1106 (7th Cir. December 12, 2013).

So much for going to law school because you are not good at math.