The opinion of the court was delivered by
PETRELLA, P.J.A.D.
In these toxic tort cases, consolidated for purposes of this appeal, plaintiffs appeal from orders for summary judgment which dismissed their respective wrongful death actions against defendant Monsanto Company. Plaintiffs’ respective decedents, Ronald G. Rubanick and Anthony DeMaio, had been employed at the Witco Chemical plant in Perth Amboy during a period when the Witco plant had polychlorinated biphenyl (PCB) contamination. The PCBs had been sold to Witco by Monsanto starting in 1969. Plaintiffs alleged in their complaints that their decedents’ exposure to the PCBs caused decedents’ colon cancers and ultimate untimely deaths.
Immediately before the start of the Rubanick trial, peremptorily scheduled for September 8, 1987, Monsanto moved for an Evidence Rule 8 hearing to challenge the qualifications and competence of plaintiffs’ expert in that case, Dr. Earl Balis, a Ph.D. biochemist with primary research responsibilities. Dr. Balis was also listed as the plaintiffs’ proposed expert in the DeMaio matter. After a three day in limine hearing conducted on September 9,10 and 14,1987, Judge Hamlin, in an opinion reported as Rubanick v. Witco Chemical Corp., 225 N.J.Super. 485, 542 A.2d 975 (Law Div.1988), concluded that while Dr. Balis may offer an opinion as to human carcinogenesis generally, he was not qualified to testify as to specific causation in individual humans because he lacked the requisite education, training and experience in treating cancer patients. Id. at 493-495, 542 A.2d 975.
Judge Hamlin also excluded the testimony because Dr. Balis had offered a “novel scientific opinion” as to causation which had not been accepted by at least a “substantial minority of the applicable scientific community.” Id. at 495-503, 542 A.2d 975. Upon exclusion of Dr. Balis’ testimony, Monsanto subsequently moved for summary judgment to dismiss both the Rubanick and DeMaio complaints, reasoning that in neither action could the plaintiffs establish a prima facie case without Dr. Balis’ testimony. Judge Hamlin agreed and dismissed both complaints. Plaintiffs then appealed.
We agree with that part of the trial judge’s opinion which concludes that the expert witness proffered by the plaintiffs in these consolidated cases may express his opinion as to human carcinogenesis. We reverse the judge’s conclusion that Dr. Balis may not testify as to specific causation in individual humans and remand for trial.
Although we do not necessarily agree with the motion judge’s opinion about the need for a “substantial minority” view for the opinion expressed by the expert, we conclude that in the field of causation of cancers novel opinions may be expressed by nonmedical expert testimony, if based on adequate education, training, or experience of the witness, unless the opinion proffered would be either illogical, outlandish or totally speculative such that no reasonable jury could accept the opinion. Dr. Balis’ proffered opinion in this case would thus be admissible. We hasten to add that Dr. Balis had testified that the general concept that PCBs are carcinogenic and that they could either cause cancer directly or by promoting cancer was neither created by him nor a unique theory.
The facts developed at the hearing were that Monsanto had sold Witco PCB fluids, under the trade name Therminal, beginning in 1969, but discontinued shipments some time prior to 1976. Rubanick, supra, 225 N.J.Super. at 497, 542 A.2d 975. Therminal is a product name for the PCB compound Arochlor, and during the applicable period Monsanto shipped Arochlor 1242 and 1248, which was said to contain 42% and 48% chlorination respectively. Ibid.
Ronald Rubanick worked at Witco from 1974 through 1979, when he was diagnosed as suffering from colon cancer. He was a non-smoker with no family history of cancer. Rubanick died of the cancer on July 23, 1980, at the age of 29. About two and one-half years after Rubanick’s death, Anthony De-Maio, a thirty year Witco employee, was also diagnosed as suffering from colon cancer. He died of the cancer on June 29, 1984, at the age of 52.
For purposes of the in limine hearing, Judge Hamlin accepted the fact that Rubanick, while working for Witco, had walked through an area in the work place which had a high degree of PCB contamination “primarily in the earth.” Ibid. In his testimony Balis summarized the information given to him about the quantity of PCBs to which Rubanick had been exposed in the following terms:
... there was some thirty-five thousand parts per million PCBs in the soil around there, that he would come home covered with this stuff and the material was oozing out of his clothes, according to I guess it was his wife’s testimony, it was something, and I think that report that he lifted these heavy drums and slopping around in this muddy PCB mix, and you also showed some document about the State of New Jersey, some agency complaining about contamination from that stuff.
At the in limine hearing Monsanto presented its three experts first. It produced Dr. Thomas Fahey, a board certified internist, with experience in the diagnosis and treatment of colon cancer; Dr. Raymond Harbison, a Ph.D. toxicologist who had knowledge and experience with human exposures to PCBs; and Dr. Philip Cole, an epidemiologist, with a M.D. and a Ph.D. who indicated he was conversant with the medical and epidemiological literature as to cancer causation and PCB exposure. Id. at 490-491, 542 A.2d 975. Each of these experts testified that they were aware of no “statistically significant” study which had concluded that PCBs cause cancer, and particularly colon cancer, in human beings. Dr. Harbison declined to recognize the International Agency for Research of Cancer (I.A.R.C.) as a valid scientific authority. Id. at 491, 542 A.2d 975. Dr. Cole does not recognize I.A.R.C. as completely authoritative in human cancer causation. Ibid. Their qualifications were challenged not by cross-examination, but by the testimony of Dr. Balis, which was largely elicited as rebuttal testimony.
Dr. Balis has a Ph.D. and worked as a biochemist for the Sloan-Kettering Institute for Cancer Research for over 37 years, specializing in cancer research. He was head of a research group which was primarily concerned with investigating the cause, treatment and diagnosis of colon cancer, and has published extensively on the topic of carcinogenesis. Some of his extensive qualifications are referred to in the published opinion of the trial judge. Id. at 492, 542 A.2d 975.
Balis’ opinion that PCB contamination at Witco caused Rubanick’s cancer was essentially based on four factors: (1) the extreme rarity of colon cancer in males under the age of 30, particularly when the male is a non-smoker and not from a “cancer family”; (2) the fact that 5 out of 105 employees at Witco suffered some type of cancer during the pertinent period; (3) “a very large body of evidence” showing that PCBs produced cancer in experimental animals, and (4) the fact that there is not only a variance of the types of cancers in a PCB exposed population, but as he described them—“unusual cancers.” The witness cited various publications, including 13 studies of the effect of PCBs on animals and humans in support of his opinion, with particular emphasis on an epidemiological study by Bertazzi, Riboldi, Pesatori, Radice & Zocchetti, “Cancer Mortality of Capacitor Manufacturing Workers,” 11 Amer.J.Indus.Med. 165 (1987).
Balis testified, referring to the Bertazzi study and what happened at the Witco site:
... one can extrapolate based upon the federal government rules that if a compound is found to cause cancer in experimental animals its presumed to be carcinogenic to man and it is banned, and secondly, the statistical data indicating in two cases groups of people who were exposed to P.C.B. came down with amounts of cancer where, which were so huge statistically that they cannot be attributed to chance.
In rejecting Dr. Balis’ theory of causation, Judge Hamlin considered it “novel” and relied on Windmere, Inc. v. International Ins. Co., 105 N.J. 878, 522 A.2d 405 (1987). He considered “general acceptance” to be acceptance by a substantial minority of the applicable scientific community. Rubanick, supra, 225 N.J.Super. at 500, 542 A.2d 975. Although Judge Hamlin did not spell out what the “applicable” scientific community was he reasoned:
Logic and policy dictate such a construction. If admissibility (as opposed to jury fact finding) were limited only to majority scientific opinions then admissibility would be a simple issue of arithmetic. By opening jury consideration to expert opinions embraced by a substantial minority scientific acceptance, there will be a testing in the advocacy arena of new ideas without prejudicing a party opposing the disfavored or novel principle. [Rud]
The question here is not the acceptance of the “general acceptance” standard but whether there are sufficient factual and scientific underpinnings to the expert’s causation theory, recognizing that in experimentation and study of known or suspected cancer causing agents as a rule they are not intentionally administered to humans because of the risks involved. In other words, experiments in the field are not, as far as we know, performed directly on humans in order to see if cancer will result.
Windmere, Inc. v. International Ins. Co., supra, 105 N.J. 373, 522 A.2d 405, does not preclude the type of proffered testimony involved here. The Supreme Court in Windmere observed that in the trial there the testimony of the experts concerned the reliability of a scientific device for voice print analysis and that the proffered experts had very limited experience on the subject. Moreover, although the court recognized that no general acceptance within the professional community of voice print analysis had been established, the admission of the voice prints into evidence had not constituted prejudicial error. The Court affirmed the verdict in favor of the defendant insurer. The use of voice prints was acknowledged to be highly debated and that this type of evidence was not yet found to be of sufficient stature to validate the equipment used and the results obtained as had been the case with the breathalyzer, Romano v. Kimmelman, 96 N.J. 66, 78, 474 A.2d 1 (1984); and radar equipment, State v. Dantonio, 18 N.J. 570, 115 A.2d 35 (1955).
When Windmere discussed the “required reliability in terms of its general acceptance within the professional community” it was talking about the required reliability of a device or machine, i.e., the voice print machine. 105 N.J. at 379, 522 A.2d 405. Windmere does not necessarily preclude novel opinions or testimony by the first proponent of any particular theory. It recites various ways in which reliability may be established.
There must also be a factual and scientific basis for an expert’s opinion. Buckelew v. Grossbard, 87 N.J. 512, 524, 435 A.2d 1150 (1981). The Supreme Court in Windmere was not concerned “with the qualifications of the experts but with the limited breadth of their experience and their potential bias.” In any event, there is a difference between considering the reliability of a device and medical opinion as to the cause of cancer when the human body is exposed to known or suspected toxic or carcinogenic substances. It has been widely considered that PCBs are a carcinogenic substance. See Winter, “Cancer-Causing Agents—A Preventive Guide,” 156 (1979) (discussion of PCBs “Polyclorinated Biphenyls”). Bertazzi, supra “Cancer Mortality of Capacitor Mfg. Workers,” 11 Am.J.Indus.Med. 165-176 (1987) (possibility of PCBs posing ¡a carcinogenic risk to humans); Gustavson, Hogstedt & Rappe, "Short-Term Mortality and Cancer Incidence in Capacitor Mfg. Workers Exposed to Polychlorinated Biphenyls (PCBs),” 10 Am.J.Indus.Med. 341-344 (1986) (cannot rule out possibility of a carcinogenic risk from PCB exposure).
It appears that it is an improper focus to say that a known carcinogen attacks only a particular target or targets in the body. For instance, although cigarette smoking has been widely discussed as a cause for lung cancer, the lung and pulmonary tract are not the only areas in the body that may be subjected to harm by cigarette smoking. See Sweeting, “A Values Approach to Health Behavior,” 124 (1990); Winter, “Cancer-Causing Agents,” 187-188 (1979). Nor should the fact that other cases have involved instances where other types of cancer, for instance cancer of the liver, biliary tract and gall bladder, as potentially causally associated with exposure to PCBs, mean that testimony of the cancer causing propensity of exposures to PCBs should be limited to cases involving only such organ specific cancers.
Part of the problem arises in this case because of the fact that an in limine hearing was held at which testimony was taken. We have previously expressed our reservations about the increased frequency of in limine hearings on evidence matters. See Bellardini v. Krikorian, 222 N.J.Super. 457, 464, 537 A.2d 700 (App.Div.1988). There is no doubt that if objections to the expert’s qualifications occurred at trial a Rule 8 hearing could have been held. See Windmere, Inc. v. International Ins. Co., supra, 105 N.J. at 381, 522 A.2d 405. However, the difficulty presented here is that this in limine hearing was extensive and was more than an Evidence Rule 8 hearing on an expert’s qualifications. It forced the trial judge to become not only the determiner of the expert qualifications of the witness and the existence of a scientific basis for his opinion (which appears to us sufficiently established to result in a jury question), but to become a fact-finder. The judge had to choose between conflicting testimony of experts and substituted himself for the jury’s function on the ultimate issue. This is clear from the three days of testimony in an adversary-type proceeding in which Monsanto actually presented the testimony of its three witnesses first and sought to carry the burden of defending against plaintiffs’ expert’s testimony before he- even got in the witness stand. The judge had stated:
The burden of proof to proceed and to demonstrate by the preponderance of the evidence that Dr. Balis’ testimony or proffered testimony would not be proper is upon Monsanto. Therefore, they have the duty of going forward, and the duty of persuading me by the evidence that indeed his testimony should not be admitted as expert testimony for the jury.
Monsanto’s attorney disagreed that they had the burden of proof at this hearing, and the judge rephrased his statement so that Monsanto had “the duty of going forward to convince me [that plaintiff’s expert’s testimony] has not reached that level” of admissibility.
The potential confusion between an Evidence Rule 8 hearing and a trial is emphasized when the trial judge pointed out in his opinion that Balis “has previously served on a research team with Dr. Nancy Kemeny, Rubanick’s treating physician at Sloan-Kettering. Dr. Kemeny was not offered as a witness in this case.” 225 N.J.Super. at 492, 542 A.2d 975.
Indeed, the trial judge here recognized that he was deviating from the usual and preferred practice, in part because both sides urged him to do so. He said:
It is generally my custom where challenges of such nature are made, to consider them only when the expert is offered in the context of a trial after a jury has been selected generally because this is [a] fuller and more complete factual record upon which to judge the expert’s opinion, rather than a vacuum.
Dr. Balis qualifies by definition as an expert. He is a person who by knowledge, training or experience is deemed qualified to testify and express his opinion on cancer development and related scientific matters even if that opinion includes medical subjects. See Sanzari v. Rosenfeld, 34 N.J. 128, 135, 167 A.2d 625 (1961). See also Hake v. Manchester Tp., 98 N.J. 302, 306, 486 A.2d 836 (1985); Rosenberg by Rosenberg v. Cahill, 99 N.J. 318, 327-334, 492 A.2d 371 (1985); Ayers v. Jackson Tp., 202 N.J.Super. 106, 124, 493 A.2d 1314 (App.Div.1985), mod. on other grounds 106 N.J. 557, 525 A.2d 287 (1987). Deficiencies in the qualification of an expert is a matter to be weighed by the jury. Sanzari v. Rosenfeld, supra, 34 N.J. at 138, 167 A.2d 625; Carbone v. Warburton, 11 N.J. 418, 426, 94 A.2d 680 (1953).
It is for the jury to determine the credibility, weight and probative value of the expert’s testimony, Savoia v. F.W. Woolworth Co., 88 N.J.Super. 153, 162, 211 A.2d 214 (App.Div.1965); Angel v. Rand Express Lines, Inc., 66 N.J.Super. 77, 85-86, 168 A.2d 423 (App.Div.1961), and the opinion of an expert can rise no higher than the facts and reasoning upon which it is based. Johnson v. Salem Corp., 97 N.J. 78, 91, 477 A.2d 1246 (1984). The jury should, as is usually done, be instructed that it is not bound by any expert’s opinion, but it is to consider it and give it the weight to which it deems it is entitled, whether that be great or slight, by weighing the reasons, if any, given for it. The jury is also usually informed that it may reject an expert’s opinion, if in its judgment the reasons given for it are unsound, the facts do not exist, or it is not based on knowledge and experience. Polyard v. Terry, 160 N.J.Super. 497, 511, 390 A.2d 653 (App.Div.1978), aff’d o.b. 79 N.J. 547, 401 A.2d 532 (1979); Mohr v. B.F. Goodrich Rubber Co., 147 N.J.Super. 279, 284, 371 A.2d 288 (App.Div.1977), certif. den. 74 N.J. 281, 377 A.2d 685 (1977). It is elementary that it is always within the personal function of the jury to decide whether the facts on which the answer of an expert is based actually exist, and the value or weight of an expert’s opinion is dependent upon and no stronger than the facts on which it is predicated. Johnson v. Salem Corp., supra, 97 N.J. at 91, 477 A.2d 1246; Polyard v. Terry, supra, 160 N.J.Super. at 511, 390 A.2d 653.
A “net opinion,” which is an expert’s opinion unsupported by factual evidence, is inadmissible. Matter of Yaccarino, 117 N.J. 175, 196, 564 A.2d 1184 (1989); Buckelew v. Grossbard, supra, 87 N.J. at 524, 435 A.2d 1150; Jakubowski v. Minnesota Mining & Mfg., 42 N.J. 177, 187, 199 A.2d 826 (1964); Johnson v. Salem Corp., supra; cf. Pearson v. St. Paul, 220 N.J.Super. 110, 116, 531 A.2d 744 (App.Div.1987). This need for supporting data and a factual basis for the expert’s opinion is especially important when the opinion is seeking to establish a cause and effect relationship. Tabatchnick v. G.D. Searle & Co., 67 F.R.D. 49, 55 (D.N.J.1975). However, the rule frequently focuses, as in Parker v. Goldstein, 78 N.J.Super. 472, 483-484, 189 A.2d 441 (App.Div.1963), certif. den. 40 N.J. 225, 191 A.2d 63 (1963), on the failure of the expert to explain a causal connection between the act or incident complained of and the injury or damage allegedly resulting therefrom. See Rempfer v. Deerfield Packing Corp., 4 N.J. 135, 144-145, 72 A.2d 204 (1950); Castroll v. Franklin Tp., 161 N.J.Super. 190, 193, 391 A.2d 544 (App.Div.1978). See also Sabloff v. Yamaha Motor Co., Inc., Ltd., 113 N.J.Super. 279, 280, 273 A.2d 606 (App.Div.1971), aff’d 59 N.J. 365, 283 A.2d 321 (1971).
Indeed, even if the testimony of an expert is uncontradicted, it is still for the jury to exercise its independent judgment in considering the matter. Chattin v. Cape May Greene, Inc., 216 N.J.Super. 618, 640, 524 A.2d 841 (App.Div.1987), certif. den. 107 N.J. 148, 526 A.2d 209 (1987); Middlesex County v. Clearwater Village, Inc., 163 N.J.Super. 166, 174, 394 A.2d 390 (App.Div.1978), certif. den. 79 N.J. 483, 401 A.2d 239 (1979). See also Evid.R. 56; Evid.R. 57 and Holm v. U.S., 325 F.2d 44, 46 (9 Cir.1963).
Evid.R. 56(2) provides that the expert testimony may be based on an opinion or inference from facts or data which he either perceived or were made known to him at or before the hearing. Those facts need not be admissible in evidence if they are “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." State v. McBride, 213 N.J.Super. 255, 269, 517 A.2d 152 (App.Div.1986). The source of this language is Fed.Evid.R. 703. The purpose of the rule as presently formulated is to “allow more latitude in the admission of expert opinion testimony” without rendering inconsistent the “spirit” of the old rule regarding whether the underlying facts need to be admissible. Evid.R. 56 (Anno.1990).
Since Evid.R. 56(2) is similar to the federal evidence rules, the various treatises which analyze the federal rules are instructive.
... [T]here is a question whether opinion evidence is admissible if the court believes that the state of the pertinent art or scientific knowledge does not permit a reasonable opinion to be asserted even by an expert. [Footnote omitted] Also, expert opinion need not be admitted if the court believes that an opinion based upon particular facts cannot be grounded upon those facts.
[Citations omitted]. [McCormick on Evidence, § 13, (3d ed. 1984) ]. [Footnote as in quoted text].
It has been observed that to establish the value of real estate the courts should evaluate the validity of the expert’s opinion and the facts on which it is based in order to determine what weight, if any, should be given to that opinion. Bowen v. Bowen, 96 N.J. 36, 50, 473 A.2d 73 (1984), citing Glenn Wall Assoc. v. Wall Tp., 6 N.J. Tax 24, 31-33 (1983). Where the basis for the opinion is questionable, it is proper for the trial judge to “determine their factual underpinnings outside of the jury’s presence” rather than impose the sanction of excluding the testimony. Gaido v. Weiser, 227 N.J.Super. 175, 193, 545 A.2d 1350 (App.Div.1988), aff’d on other grounds 115 N.J. 310, 558 A.2d 845 (1989). If the court determines that the expert’s testimony is unreliable, that opinion may be excluded. Bowen v. Bowen, supra, 96 N.J. at 50, 473 A.2d 73.
Regardless of the standard for admissibility, arguments to the jury concerning the weight to be given an expert opinion or evidence may have significant impact. McCormick on Evidence, § 203 (3d ed.1984). This treatise also notes that in environmental or drug litigation a party may seek to prove that the implicated chemical is carcinogenic through the use of statistical studies. Id. at § 209.
The weight that may be given such testimony will depend, of course, on the skill of counsel and the ability and preparation of the witness. In addition, the methods that the expert uses to analyze and interpret that data, so as to assist the court or jury in understanding it, may be of great importance in determining the outcome. Ibid.
Studies establishing a statistically sound causal relationship between a chemical and human cancer may be supportive of a causation theory, notwithstanding the fact that a majority of the relevant disciplines may not have yet expressed agreement with a particular study. A broad approach is desirable when investigating questions of causation, and as the dissent notes: “factors pertaining to the injured party in question, such as his medical history, significant diagnostic and pathological findings, [as well as] the duration, quantum and manner of exposure to the offending chemical, may well add to the reliability of the expert’s opinion.” Although the record lacks any reference to the employees’ employment history and other necessary factors, the lack of a complete record is in part a problem with the type of in limine ruling made here. See Bellardini v. Krikorian, supra, 222 N.J.Super. at 464, 537 A.2d 700. We note that in the transcripts of the three day in limine hearings Balis testified that he relied in part on affidavits (marked for identification) of Kenneth D. Rosenman, the Director of Occupational and Environmental Health Services in the New Jersey Department of Health and of Robert H. Tucker who is employed as a research scientist by the New Jersey Department of Environmental Protection, Office of Cancer and Toxic Substances Research. Neither of these individuals testified at this hearing, although plaintiff may have intended to have them testify as witnesses at the trial. Rosenman stated in his affidavit that:
5. Studies have shown that PCBs have the potential for causing acute health problems; such as skin disease (e.g. chloracne), liver disease (e.g.. toxic hepatitis), and restrictive lung disease. Congenital birth defects have also been traced to PCB exposure as well as cancer in animals. (Emphasis added).
6. PCBs are a stable compound that are poorly metabolized by the body and, therefore, are stored in the body after exposure. PCB levels in humanfs] increase over time of exposure. Studies of U.S. workers exposed to PCBs have revealed liver, lung, and skin problems. The International Agency for Research on Cancer lists PCBs as a probable carcinogen.
7. The routes of exposure for PCBs are inhalation, skin absorption, and ingestion.
Tucker stated in his affidavit:
5. PCBs have caused profound toxic effects in humans. A most notable poisoning incident was the Yosho outbreak in Japan in 1968. The skin and liver are major sites of pathology with the gastrointestinal tract and nervous systems also being targets. Animal studies have shown that PCBs are carcinogenic and that they ean also enhance the carcinogenicity of other chemicals. Scientists are now in general agreement that there is no lower safe limit for chemicals that cause cancer, that is, although the risk decreases as the chemical concentration goes down there is no ‘threshold’ value below which no risk occurs. The Federal Environmental Protection Agency calculates that an exposure level as low as 0.26 nanograms of PCBs per liter of water could lead to an increased risk exposure of 1 cancer per 100,000 people.
* * ******
7. PCBs can enter the atmosphere by vaporization and may be found in either gaseous form or absorbed to airborne particulates. Persons in the area of PCB contamination, such as found on the Witco site, are subject to substantial PCB exposure through inhalation of vapors or particulates containing the contaminant.
8. Skin contact with PCBs presents a health risk since these compounds may be absorbed through the skin.
9. With airborne, skin absorption, and foodchain routes of exposure to the human population possible from the PCBs contaminating the Witco site, this situation represents a serious threat to human health. The concentrations of PCBs involved clearly present an unreasonable risk.
All of those factors should be explored at a trial to the extent that they are relevant.
The fact that an expert’s opinion may not generally be accepted in the scientific community, is not a reason to preclude a qualified expert from testifying as to his opinion on causation, where there is a well-reasoned basis for the opinion based upon the expert’s training, education and experience. See Ferebee v. Chevron Chemical Co., 736 F.2d 1529, 1535-1536 (D.C.Cir.1984), cert. den. 469 US. 1062, 105 S.Ct. 545, 83 L.Ed.2d 432 (1984) (pulmonary specialist permitted to testify that paraquat caused plaintiff’s pulmonary fibrosis, notwithstanding the fact that expert’s opinions were not generally accepted in scientific community).
Thus, a cause-effect relationship need not be clearly established by animal or epidemiological studies before a doctor can testify that, in his opinion, such a relationship exists. As long as the basic methodology employed to reach such a conclusion is sound, such as use of tissue samples, standard tests, and patient examination, products liability law does not preclude recovery until a ‘statistically significant’ number of people have been injured or until science has had the time and resources to complete sophisticated laboratory studies of the chemical. In a courtroom, the test for allowing a plaintiff to recover in a tort suit of this type is not scientific certainty but legal sufficiency; if reasonable jurors could conclude from the expert testimony that paraquat more likely than not caused Ferebee’s injury, the fact that another jury might reach the opposite conclusion or that science would require more evidence before conclusively considering the causation question resolved is irrelevant. [736 F.2d at 1535].
See also Wells v. Ortho Pharmaceutical Corp., 788 F.2d 741, 745 (11 Cir.1986), cert. den. 479 U.S. 950, 107 S.Ct. 437, 93 L.Ed.2d 386 (1986).
Weinstein’s Evidence, § 702[03] (1988), suggests that an appropriate approach to determine whether or not to admit expert opinion testimony based on novel scientific evidence would be by reviewing it under a Fed.R.Evid. 403 analysis. (Fed.R.Evid. 403 is essentially identical to Evid.R. 4). Thus, the court would first assess the probative value of the proffered testimony and then assess the dangers posed by admitting this testimony.
After assessing probative value, the court must also assess the dangers posed by this particular kind of expert scientific evidence. The court will have to evaluate the degree to which the jurors might be over impressed by the aura of reliability surrounding the evidence, thereby leading them to abdicate their role of critical assessment. In making this determination the nature of the evidence may be significant. Some scientific evidence merely guides the jury in making its own assessment of the evidence; in other instances, the jury may be incapable of estimating the accuracy of the expert’s conclusions by reference to the data on which the expert relies. Confusion of the jury, and the inordinate consumption of trial time are other dangers for the court to consider. See Rule 403. [Footnotes omitted]. Weinstein’s Evidence, § 702[03] (1988).
Under such an approach the court should also consider:
... such factors as the significance of the issue to which the evidence is directed, the availability of other proof, and the utility of limiting instructions. * * * The court may also be influenced by the extent to which the issues posed by this novel evidence were explored prior to trial, and whether the party opposing admissibility is adequately prepared. * * * The availability of competent experts to explore the limitations of the novel technique may also enter into the court’s calculus. [Footnotes omitted.] Ibid.
A relevancy analysis favors admissibility whenever the general conditions for admissibility are met. Ibid. It is not clear in this case that no reasonable expert could base an opinion on the studies and research relied on by Dr. Balis. In our view, Dr. Balis need not have treated or have been able to medically treat plaintiffs in order to render a scientific opinion as to the cause or causes of the decedents’ colon cancer. It was for the jury to determine the facts and to either accept or reject the methodology used by Dr. Balis and his opinion based on the reasons given therefor. The motion judge in this case usurped the jury’s fact-finding function. Moreover, in concluding that Dr. Balis had “glossed over” significant factors the motion judge again intruded on the jury’s function. Such matters are properly the subject of exploration and cross-examination at a trial. Obviously, the proceeding here was not intended to be a substitute for a trial. It did, however, prevent a trial and had the effect of precluding plaintiffs from having their proper day in court. In our view Dr. Balis qualified as an appropriate expert and should have been allowed to express his opinion with respect to whether PCB contamination at Witeo was a proximate cause of Rubanick’s cancer.
The dissent relies in part on cases involving the effect of and adverse reactions by some individuals to certain medications. We find these types of cases inapposite with respect to a discussion of the carcinogenic effect of PCBs. The dissent also notes that Dr. Balis’ ultimate opinion is couched in terms of “highly probable” and “probable” but when pressed his testimony was couched in terms of “possibilities” and “high possibilities.” Of course, the medical and scientific professions do not necessarily think or speak in terms of legal jargon. Hence, it must be ascertained what is meant by the witness when terms such as “highly probable,” “probable,” “possibility” and “high possibility” are used in relation to the “reasonable probability” standard. Parenthetically, Dr. Balis conceded he had never testified as an expert witness before (and hoped it would be his last). Thus, he would not necessarily express his opinion in carefully phrased legal jargon. Judge Hamlin asked Balis if in general the majority of the scientific community accepts the thesis that PCBs are carcinogens. The witness responded:
Well, let me put it this way. I don’t think the majority of the scientific community pays any attention to PCBs whatsoever.
If you’re talking about those who have worked on PCBs and who have published on PCBs, I would say that of the thirty-nine papers that I’ve looked at, thirteen say yes, three or four are sort of equivocal, and the others I don’t remember in detail, but I have, somewheres around here I had thirteen papers that supported it.
In addition, the testimony which discusses possibilities versus probabilities was in response to the court’s question:
Within the scientific community, based upon all the information and literature you have seen, is there general or majority agreement by the scientists involved in the discipline that exposure to PCBs would probably cause colon cancer in humans?
Balis’ answer was “Probably, that’s very difficult.” He said that the scientists with whom he had discussed the proposition said “they think it’s a damn good candidate but they’re not saying probableft] ... they said it’s a high possibility.” The issue is whether Balis’ opinion is that the PCB exposure probably caused Rubanick’s cancer, not the phraseology used by other scientists.
With regard to “Probability and possibility; capacity and tendency; cause and effect” 7 Wigmore, Evidence, (Chad-bourne rev.1978) § 1976 states:
There is no sufficient reason for excluding such statements from qualified witnesses, because it must almost always be impossible for a witness to reproduce in words absolutely all the detailed data which enter into his estimate, and there can be no danger in receiving such an estimate from him____
It should be added that courts sometimes misapply the opinion rule to enforce the doctrine of torts that a recovery for future personal injuries must include only the certain or fairly probable, but not the merely possible, consequences; so that the judge, instead of covering the subject by an instruction to the jury as to the measure of recovery, excludes from evidence a physician’s opinion expressed in terms of possibility only. This attempt to control the course of expert testimony is of course unreasonable in itself. Its unsoundness becomes the more notable when the same court is found ruling, in another line of precedence, that the physician may express an opinion as to what might have caused an injury, but not as to what did cause it. In other words, possibility, as affecting consequences, is tabooed, and only actuality is to be accepted; a possibility, as affecting causes, is sanctioned, while actuality is tabooed.
This is only one of the many instances in which the subtle mental twistings produced by the opinion rule have reduced this part of the law to a congeries of nonsense which is comparable to the incantations of medieval sorcerers and sullies the name of reason in our law. [Citations and footnotes omitted.]
We therefore reverse the order which precluded Dr. Balis from giving his scientific expert testimony and remand for trial in accordance herewith.
Witco, the employer of the decedents, was named a nominal defendant for discovery purposes only.
Balis had testified that a substantial number of the scientists who had considered the interaction on PCBs in humans and published on the subject had concluded that PCBs caused cancer in humans.
Dr. Fahey testified and expressed opinions about Dr. Balis and his proposed testimony without having been furnished all of the deposition testimony of Dr. Balis. In challenging the scientific approach of Dr. Balis he stated: "... there is no evidence that I have seen to this date that would demonstratively suggest that the individual [Rubanick] actually did have extensive exposures to PCBs----” Apparently, he was not given the information made available to and referred to by Dr. Balis.
According to Dr. Balis testimony, Dr. Cole "was on the I.A.R.C. committee that listed PCBs as carcinogens____’’ Dr. Cole testified that he spent a one year sabbatical at the I.A.R.C. during the years he was a professor at Harvard School of Public Health as well as serving as a consultant to that organization for many years. Dr. Cole asserted that he did not concur in the I.A.R.C.’s determination to list PCBs as a potential carcinogen.
A cancer family is one whose members are at an extremely high risk of developing cancer due to genetic predisposition to the disease.
Carcinogen is defined as [a]ny substance or agent which causes the development of a cancer, Schmidts, Attorneys Dictionary of Medicine and Wordfinder (1982); and "a substance or agent producing or inciting cancer.” Websters Ninth New Collegiate Dictionary (1988).
Balis also testified along these lines and cited various publications, including one of his own. Balis, Antagonists and Nucleic Acids, Frontiers of Biology,” 248-249 (1968); Setic & Lipchin, Inhibition of Tumor Introduction and Development.” He also referred to an I.A.R.C. report on the subject.
It may be argued that by virtue of his specialization and research background in cancer he was more qualified than a medical doctor who is involved with the care and treatment after the fact of cancer development in patients, and including certain of the experts produced by Monsanto.
Although the language of Evid.R. 56(2) no longer specifically refers to the expert testifying within the parameters of such skill, knowledge, or training, the comment to that rule suggests that the requirements that an expert be qualified under EvitLR, 19 and that the witness testimony assist the trier of fact to understand the evidence of determine a fact in issue were intended to replace the previous language of the rule. In addition, Evid.R. 7 favors the admissibility of evidence.
. Under Fed.R.Evid. 702, 703 and 705, the expert may testify only in terms of opinion subject to cross-examination and may base an opinion upon matters not of record—provisions which seem to indicate an overall intent that the questioning of the basis for an opinion should usually go the weight and not the admissibility of the opinion.
Multiple factors may also give rise to Synergy” which is defined as: Action of two or more agents or organs working with each other; cooperation. Combined action; coordinated action." Taber’s Cyclopedic Medical Dictionary, S-146 (12th ed. 1973).
Monsanto’s attorney did object, at the close of the proceedings, to consideration of these two documents.