City of Frederick v. Shankle

SALMON, Judge. Under Maryland Workers Compensation law, state and municipal police officers (and others) who have heart disease that results in partial or total disability are entitled to a presumption that they have a compensable occupational disease that was suffered in the line of duty. See Md.Code Ann., Lab. & Empl. (“LE”) § 9-503 (1999 Repl.Vol. & Supp.2000). 1 ³⁴⁴ The presumption is rebuttable, but neither the statute nor Maryland precedent spells out what type of testimony can be presented by the employer to rebut the presumption.

More specifically, Maryland case law leaves it unclear whether an expert’s testimony should be excluded if one of the grounds for the expert’s opinion is that there is no scientific basis to support the view (impliedly embraced by the General Assembly) that there is sometimes a link between the high level :of stress associated with certain occupations (fire fighter, police officer, etc.) and the development of heart disease. In the case sub judice, the trial judge ruled that the videotaped deposition of the employer’s expert, a cardiologist, was inadmissible because one of the grounds for his opinion that the claimant’s heart disease was not related to his occupation was the expert’s belief that there is no link between stress and heart disease. That ruling left the employer with no evidence to rebut the presumption set forth in section 9-503(b) and left the trial court with no choice but to grant summary judgment in favor of the police officer. On appeal, appellants (the City of Frederick/insurer) raise several questions, which we have rephrased and condensed: 1.

Did the circuit court err when it. struck the expert testimony of Alan G. Wasserman, M.D., on the grounds that one of the reasons for Dr. Wasserman’s opinion that Officer Shankle did not suffer from an occupational disease was his belief that there was no link between occupational stress and heart disease? ³⁴⁵ 2. Is an expert cardiologist required to accept that occupational stress causes coronary artery disease in order to testify, even when he testified that “it is not accepted in the medical community that stress causes coronary artery disease or [is] a risk factor for it?” 3. Is it possible for any employer to ever rebut the presumption in LE § 9—503(b)(1), if experts are not allowed to express their opinions that a claimant’s coronary artery disease is unrelated to his occupation, in part because they believe occupational stress does not cause coronary artery disease? I. FACTS AND PROCEDURAL BACKGROUND A. General Background Donald Shankle joined the Frederick City (“the City”) police force in 1975.

Approximately twenty years later, when he was forty-five years of age, he was admitted to Washington Hospital Center where he was diagnosed with coronary artery disease. He returned to his job in late December of 1995 and worked for seven weeks, but then stopped working because his heart disease prevented him from performing his police duties. In May of 1996, Officer Shankle underwent bypass surgery. 2 Officer Shankle filed a claim with the Maryland Workers’ Compensation Commission (“the Commission”) in 1996. He alleged, inter alia, that his coronary artery disease constituted an “occupational disease” that arose out of his employment as a City police officer.

The City and its insurer opposed the claim and maintained that Officer Shankle’s heart problem was not work-related. On October 31, 1997, the Commission ruled that the claimant’s coronary artery disease was work-related. It awarded ³⁴⁶ Officer Shankle legal fees, medical benefits, and compensation for temporary total disability for a period of approximately eleven months. The City and its insurer filed a timely petition for judicial review in the Circuit Court for Frederick County and prayed for a jury trial.

In preparation for trial, counsel for Officer Shankle took a discovery deposition of the employer/insurer’s expert-Dr. Alan Wasserman. Later, a video deposition of Dr. Wasserman was taken for use at trial. B. Video Deposition Testimony of Alan Wasserman, M.D. Dr. Alan Wasserman, at all times here pertinent, was: (1) Chief of Medicine at George Washington University in Washington, D.C., (2) board certified in both medicine and cardiology, 3 and (3) a professor of cardiology at George Washington University Medical School. Additionally, he has served as Chief of Cardiology at George Washington University.

Over the years, Dr. Wasserman has had extensive experience in conducting medical research and has received “multiple” research grants. As a researcher, one of his major interests has been the detection, treatment, and prevention of heart disease. He has published approximately one hundred articles in various medical journals. Dr. Wasserman reviewed Officer Shankle’s medical records with the goal of discovering the cause of his coronary artery disease. 4 According to Dr. Wasserman, the six major risk factors 5 for coronary artery disease are male gender, family ³⁴⁷ history of a parent or sibling with diagnosed coronary artery disease by age sixty or below, diabetes, high cholesterol, hypertension, and smoking. 1.

Claimant’s Medical Records A review of claimant’s medical records revealed that at age sixty Officer Shankle’s father died suddenly. Although no autopsy was performed, Officer Shankle was told that his father died of a heart attack (myocardial infarction). Prior to Officer Shankle’s leaving the police force he had smoked at least a pack of cigarettes a day for “many years.” He started smoking at age 15, but his consumption greatly increased after he became a police officer. Before the onset of Officer Shankle’s disability, he had a “very high [blood] cholesterol level.” His low-density lipoprotein (LDL) or “bad” cholesterol was “very elevated,” and his high-density lipoprotein (HDL) or “good” cholesterol was “very low.” 6 2.

Dr. Wasserman’s Opinion as Expressed on Direct Examination In Dr. Wasserman’s opinion, Officer Shankle developed coronary artery disease because he had four of the six major risk factors, i.e., he was male, “he had a horrendously abnormal cholesterol level, he smokes, and had a family history” of ³⁴⁸ heart disease. The claimant’s “occupation was a nonfactor for when he developed [coronary artery disease] or if he developed it.” Dr. Wasserman also expressed the view that, given the presence of four of the major risk factors, the claimant would have developed coronary artery disease if he had been a “lawyer, doctor, teacher, or [was engaged in] any other occupation.” The witness admitted that sudden stress (such as stress that might be encountered as a policeman) could precipitate a heart attack-but, in his opinion, would not cause the underlying coronary disease process. 7 Dr. Wasserman was asked whether he agreed with the medical opinion expressed by claimant’s expert, i.e., that occupational stress was one of the causes of Officer Shankle’s coronary artery disease. He said that he did not and explained why: There is no body of literature that is accepted in the cardiac field that says that stress is a risk factor for coronary artery disease. If one wants to search hard enough, one can find evidence in the literature for anything anybody wants. .

You can find evidence that snake oil can prevent diabetes. You can find evidence that chelation therapy can prevent coronary artery disease. There are tons of garbage jour ³⁴⁹ nals that publish garbage that are not peer reviewed, as we discussed before. So there are opinions in the literature.

It does not mean that it’s correct or gospel. I can tell you from 20 years of experience and from teaching preventive medicine and preventive cardiology that it is not accepted in the medical community that stress causes coronary artery disease or is a risk factor for it. 3. Cross-Examination of Dr. Wasserman A significant portion of the cross-examination of Dr. Wasserman by claimant’s counsel was devoted to questions concerning the presumptions set forth in LE section 9-503. In this regard, Dr. Wasserman stressed that he had never read the statute and did not believe he was competent to interpret it.

Nevertheless, he was shown a copy of section 9-503 as well as excerpts from two Maryland appellate decisions that discussed that statute. Over objection, Dr. Wasserman was questioned as to whether he agreed or disagreed with the scientific premise underlying section 9-503, i.e., that the stress brought about by employment as a police officer (or a firefighter) sometimes caused coronary artery disease. Dr. Wasserman answered: I still today believe and I believe the medical literature and the entire medical community supports this, that there is no reason to believe that being a policeman or fireman contributes anything to developing coronary artery disease. 8 He was next asked: If I would ask you to assume that the purpose and the premise behind this statute that we have discussed is that the unusual stress or occupation of a police officer or fire fighter contributes to the development of coronary artery ³⁵⁰ disease, not asking about the statute, but is it my understanding that you disagree with that premise? Dr. Wasserman answered, “I disagree with the premise.... ” C. Claimant’s Motion to Exclude Dr. Wasserman’s Testimony On the morning that Officer Shankle’s compensation case was to be heard by a jury, claimant’s counsel filed a written motion in limine to prohibit the jury from considering any part of Dr. Wasserman’s videotaped deposition.

Claimant argued: Dr. Wasserman expressly rejects the legislature of the State of Maryland’s statutory presumption of compensability for firefighters and police officers who develop hypertension [sic]. Dr. Wasserman has, in fact, stated that in his opinion, medicine does not recognize stress as a factor in the development of heart disease. Therefore, according to Dr. Wasserman, Mr. Shankle’s job did not, and could not, contribute to his heart disease. In other words, Dr. Wasserman seeks to repeal the legislation which has been in force in Maryland for decades.

Officer Shankle’s counsel went on to argue: [A]n expert’s opinion, where legally mistaken or based on an erroneous concept of law, is devoid of competency.... Clearly, Dr. Wasserman’s opinion in this case, which is clearly contrary to the express provisions of the Maryland worker’s compensation statute, is based on the erroneous concept of the law and is legally mistaken. Thus, his opinion must be excluded. (Citations omitted.) D. Hearing on the Motion to Strike Dr. Wasserman’s Testimony In his oral opposition to the motion to strike, counsel for the employer/insurer stressed that he had objected when claim ³⁵¹ ant’s counsel asked Dr. Wasserman whether he agreed with the premise underlying section 9-503.

Defense counsel maintained that answers to such questions should be stricken as irrelevant. He did not, however, contend that Dr. Wasserman’s explanation as to why he disagreed with plaintiffs expert should be stricken. Instead, defense counsel contended that Dr. Wasserman was competent to give his opinion as to the cause of Officer Shankle’s coronary artery disease— even though one of the bases for his opinion was his belief that there was no link between the stress of being a police officer and the development of coronary artery disease. E. The Trial Judge’s Ruling The trial court, relying on Franch v. Ankney, 341 Md. 350 , 670 A.2d 951 (1996), and other cases cited by claimant in his motion, struck Dr. Wasserman’s video-taped deposition testimony in its entirety.

The court further explained: I do note, and I know [counsel for the employer/insurer] didn’t indicate otherwise, that the authority from the other states that specifically decided this issue, do not allow an expert to testify, basically that they disagree with one of the presumptions of the statute, so the authority is in accord with Franch , that says, no, that is not admissible. I think based on [Montgomery County v. Pirrone, 109 Md.App. 201 , 674 A.2d 98 (1996) ], based on Franch , I do find that the claimant’s motion is proper, and I am going to grant the motion in limine.

II

ANALYSIS The Nature of the Section 9-503 Presumption Section 9-503 has its origin in Chapter 695 of the Acts of 1971, which became Code 1957, article 101, section 64A. In Colgan v. Board of County Commissioners, 21 Md.App. 331 , 320 A.2d 82 (1974), Judge Menchine for this Court explained some of the legislative history surrounding the passage of Chapter 695: ³⁵² In the course of its passage through the legislature, both the title and the body of the Bill (H.B.433) were amended. As introduced, the title of the bill had provided, inter alia, that its purpose was to “establish certain medical conditions where the death or disability of a fire fighter is presumed to be accidental and as a result of his employment.” An amendment to the title of the bill struck out the above quoted language and declared that its purpose was to “provide that there is a presumption of compensable occupational disease in cases of certain fire fighters sustaining temporary or total disability or death under certain conditions.” The body of the bill at introduction had contained the words: “presumed to have been accidental and to have been suffered in the course of his employment.” (Emphasis added.) By amendment in the course of passage the above quoted language was stricken and the following words substituted: “presumed to be compensable under this AHicle and to have been suffered in the line of duty and as a result of his employment.” Id. at 335 , 320 A.2d 82 (emphasis in original) (footnote omitted). In 1972, the General Assembly added “paid state, municipal, county, or airport authority police officers” to those entitled to the presumption.

See Chapter 382, Laws of Maryland 1972, page 840. Later, some deputy sheriffs received the benefit of the presumption: See supra note 1. No legislative history currently is available showing what medical evidence, if any, was considered by the General Assembly when it enacted the predecessor to section 9-503. But it is obvious that the legislature believed that there was a link between occupational stress and heart disease.

See Montgomery County v. Pirrone, 109 Md.App. 201, 216 , 674 A.2d 98 (1996). The statute sets forth rebuttable factual presumptions, Board of County Commissioners v. Colgan, 274 Md. 193, 210 , 334 A.2d 89 (1975), one of which is that a paid police officer who has heart disease is “presumed to be suffering from an ³⁵³ occupational disease that was suffered in the line of duty” if that disease results in “partial or total disability or death.” LE § 9-503(b). The presumption is not one of law. Id.

Moreover, the presumption is not based on probabilities; 9 instead, it is “based largely on a legislatively mandated social policy.” Montgomery County Fire Bd. v. Fisher, 298 Md. 245, 259 , 468 A.2d 625 (1983). The purpose of LE § 9-503 “is to provide a presumption of compensable occupational disease to certain classes of public employees including police officers who, in the course of their daily activities, are subject to unusual hazards, stresses, and strains.” Soper v. Montgomery County, 294 Md. 331, 336 , 449 A.2d 1158 (1982). To rebut the presumption, the employer/insurer must prove a negative, i.e., that the non-existence of the presumed fact is more probable than its existence. Pirrone, 109 Md.App. at 214 , 674 A.2d 98 ; see also Sunderland v. North Dakota Workmen’s Compensation Bureau, 370 N.W.2d 549, 552 (N.D.1985), and authorities therein cited.

In Fisher, supra, the claimant (a firefighter) had the benefit of a presumption, which was in all material respects exactly ³⁵⁴ like the one here at issue (see section 9-503(a) quoted supra note 1). The claimant argued that the statute set forth a “Morgan-type” presumption—a presumption that never drops out of the case, and imposed both the burden of proof and the burden of persuasion upon the party against whom the presumption operates. Fisher, 298 Md. at 257 , 468 A.2d 625 . The Fisher Court agreed, saying: We think the legislature intended that the Morgan type presumption be applied in adjudicating cases arising under § 64A(a) [now LE § 9—503(a)].

Undoubtedly, as we first recognized in Bd. of Co. Comm’rs v. Colgan, 274 Md. 193 , 334 A.2d 89 (1975), and again in Lovellette[ v. Mayor & City Council of Baltimore], supra,[ 297 Md. 271 , 465 A.2d 1141 (1983) ] § 64A(a) is reflective of a social policy affording preferential treatment to fire fighters disabled by heart disease. Although the presumption of compensability is a rebuttable one of fact, the legislature manifestly intended that the statute impose a formidable burden on the party against whom it operates. Accordingly, both the burden of production and the burden of persuasion remain fixed on the employer; neither ever shifts to the claimant and the presumption constitutes affirmative evidence on the fire fighter’s behalf throughout the case, notwithstanding the production of ccmtrary evidence by the other side. The Thayer-Wigmore theory of presumptions is simply inappropriate in occupational disease cases brought under § 64A(a) because the presumption of compensability is too easily rebutted.

It is extremely unlikely in any case that the presumption’s adversary would fail to produce some evidence that heart disease was not due to the fire fighter’s employment; thus, if the Thayer-Wigmore approach to presumptions were applied, practically every case would be decided without the benefit of the statutory presumption, thereby emasculating the presumption and subverting the clear legislative policy which undergirds § 64A(a). Id. at 258-59, 468 A.2d 625 (emphasis added) (footnote omitted). ³⁵⁵ As made clear in Fisher , the “Morgan-type” presumption shifts both the burden of production and the burden of persuasion to the employer. Unlike the presumptions covered by Maryland Rule 5-301(a), 10 the jury need not be notified of a Morgan-type presumption-but the jury must be notified of the allocation of the burden of persuasion. 11 See Carrion v. Linzey, 342 Md. 266, 279, 287 , 675 A.2d 527 (1996). ³⁵⁶ III. ISSUE 1 Did the circuit court err when it struck the expert testimony of Alan G. Wasserman, M.D., on the grounds that one of the reasons for Dr. Wasserman’s opinion that Officer Shankle did not suffer from an occupational disease was the belief that there was no link between occupational stress and heart disease?

A. The Franch Case In granting appellee’s motion in limine to strike Dr. Wasserman’s testimony, the trial court placed great reliance on Franch v. Ankney, supra. Appellee likewise relies on Franch , citing it for the proposition that “[a]n expert’s opinion predicated upon a faulty interpretation of Maryland law must be stricken.” Franch concerned a legal malpractice case that had its origin in a claim filed with the Workers’ Compensation Commission. Franch, 341 Md. at 354 , 670 A.2d 951 . The claimant, Ankney, suffered a back injury on the premises of a third party while in the course of her employment.

Id. Ankney, without the permission of either her employer or her employer’s insurer, Aetna Casualty & Surety Company (Aetna), settled her claim against the owner of the premises where she was injured. Id. at 354-55 , 670 A.2d 951 . Subsequently, Ankney brought a workers’ compensation claim against her employer/insurer to recover certain medical expenses suffered as a result of her work-related injury.

Id. at 355 , 670 A.2d 951 . Aetna opposed the claim and contended that it was no longer liable for the medical expenses because Ankney had settled her claim against the third-party tortfeasor without its ³⁵⁷ authorization. Id. The Commission agreed with Aetna and dismissed the claim.

Id. Ankney then hired William Franch, an attorney, to advise her as to the likelihood of a successful appeal. Id. Franch told Ankney that her appeal probably would not succeed, “apparently based on the view that the unauthorized settlement probably foreclosed Ankney’s right to future benefits.” Id.

Ankney took Franch’s advice and did not appeal the Commission’s decision. Later, however, Ankney sued Franch and his law firm for legal malpractice. At the malpractice trial, two lawyers testified on behalf of Ankney that the unauthorized settlement by her did not absolve Aetna from liability but would only entitle Aetna to a credit for the amount of the settlement. Id. at 362-63 , 670 A.2d 951 .

The foundation of the experts’ opinion was their belief that any prejudice Aetna may have suffered because of the settlement was irrelevant to Aetna’s liability to pay benefits. Id. at 364 , 670 A.2d 951 . At the conclusion of Ankney’s presentation of her malpractice case, the trial judge struck the testimony of both of Ankney’s experts on the ground that their testimony “was predicated on a faulty interpretation of Maryland law.” Id. at 363 , 670 A.2d 951 . In Franch , the Court of Appeals held that the amount of prejudice suffered by Aetna was relevant.

Id. at 364 , 670 A.2d 951 . It affirmed the trial court’s decision to strike the testimony of both experts, id. at 364 , 670 A.2d 951 , and said: [I]f an expert’s opinion testimony is based upon a premise which is shown to be unsound or faulty, the judge should strike the testimony. See Evans v. State, 322 Md. 24, 34-35 , 585 A.2d 204, 209 (1991) (“The expert’s opinion is of no greater value than the soundness of the reasons given for it will warrant. If no adequate basis for the opinion is shown, the opinion should not be admitted or, if already admitted, should be stricken.”) (quoting Maryland Evidence § 705.1, at 256-57).

See also State, Use of Stickley v. Critzer, 230 Md. 286, 290 , 186 A.2d 586, 588 (1962) (“[N]o matter how highly qualified the expert may be in his field, his opinion ³⁵⁸ has no probative force unless a sufficient basis to support a rational conclusion is shown.”) (footnote omitted). There is a difference between the type of opinion prohibited by the Court in Fmnch and the testimony struck in the subject case. The plaintiffs’ experts in Franch were giving legal opinions as to the status of Maryland law. Legal opinions are admissible in a legal malpractice case if there is an adequate basis for the opinion because the plaintiff must “[establish] the standard of care for a reasonable, prudent lawyer in a particular situation.” Id. at 361 , 670 A.2d 951 .

But here, Dr. Wasserman did not venture an opinion as to what Maryland law provided. Instead, he testified, in effect, that one of the reasons that he did not believe that there was a link between Officer Shankle’s occupation and his heart disease was because he did not subscribe to the premise that undergirds the presumption found in LE section 9-503. B. The Premise Underlying Section 9-503 There is a cleavage in medical opinion as to whether occupational stress, or stress of any kind, causes heart disease. Many prominent cardiologists share Dr. Wasserman’s view that there is no link between stress and heart disease.

That view finds expression in research articles published in prestigious medical journals. For instance, according to a recent article in the New England Journal of Medicine, 12 data compiled by researchers suggested, inter alia, that depression, anxiety, hostility, and stress are not related to coronary-artery calcification.... Patrick G. O’Malley, M.D., M.P.H., et al., Lack of Correlation between Psychological Factors and Subclinical Coronary Artery Disease, 343 New Eng. J. Med. 1298 (Nov. 2, 2000) (emphasis added). 13 On the other hand, as pointed out by the ³⁵⁹ claimant’s expert, there is medical research that supports the contrary thesis, which holds that job stress is closely linked to the development of heart disease. 14 C. Out-of-State Legal Authority One of the cases relied upon by Officer Shankle and by the trial court when it granted the motion in limine was Stephens v. Workmen’s Compensation Appeals Board, Department of Corrections, 20 Cal.App.3d 461 , 97 Cal.Rptr. 713 (1971). 15 The Stephens case involved a Worker’s Compensation claim by a guard at Folsom State Prison.

After a long period of stressful service, the guard developed heart disease. He filed for compensation under section 3712.2 of the California Labor Code, which provided, in pertinent part: In the case of officers and employees in the Department of Corrections having custodial duties, ... the term “injury” includes heart trouble which develops or manifests itself during a period while such officer or employee is in the service of such department or hospital. “Such heart trouble so developing or manifesting itself in such cases shall be presumed to arise out of and in the course of the employment. This presumption is disputable and may be controverted by other evidence, but unless so controverted, the appeals board is bound to find in accordance with it.” ³⁶⁰ Id. at 464-65 , 97 Cal.Rptr. 713 (emphasis added). In Stephens , the employer took the position that the claimant’s heart disease was not related to his occupation and called a cardiologist, Dr. Paul DeSilva, as an expert witness.

Id. at 466 , 97 Cal.Rptr. 713 . According to the Stephens Court, Dr. DeSilva testified that in his opinion stress and stressful occupations do not cause or relate to acceleration of any arteriosclerosis. He argued that the majority of medical opinion was to that effect. He even characterized the theory (and thus the opinion of [Stephens’s expert]) as being a “ridiculous assumption.” Id. at 466-67 , 97 Cal.Rptr. 713 .

Based on this testimony, the Workmen’s Compensation Appeals Board (WCAB) denied Stephens’s claim. Id. at 462 , 97 Cal.Rptr. 713 . The California Court of Appeals reversed, saying: Statistically we cannot assert at the appellate level on the basis of this record that the majority of doctors do accept the proposition that stress and tension relate to