Giant Food, Inc. v. Booker

SHARER, J. In this workers’ compensation case appellants, Giant Food, Inc., and Lumbermen’s Mutual Casualty Company, ask us to find that the Circuit Court for Prince George’s County erred by denying their motion for judgment, and their motion for judgment notwithstanding the verdict. It is undisputed that on December 15, 1998, appellee/claim-ant, Tivey L. Booker, was exposed to Freon gas while working as an employee at Giant Food. It is also undisputed that approximately fourteen months after his exposure, Booker was diagnosed with adult on-set asthma. What is disputed, however, is whether the accidental exposure to Freon caused his asthma.

Booker filed a claim with the Maryland Workers’ Compensation Commission (“the Commission”) for permanent partial ¹⁷⁰ disability, alleging that his exposure to the Freon gas caused his asthma. The Commission denied the claim on the basis that (1) the claimant sustained no permanent partial disability and (2) no causal connection existed between the accidental exposure of Freon and appellee’s alleged disability. Booker sought de novo judicial review in the circuit court of the decision of the Commission. The case was submitted to the jury on issues and the jury found favorably to Booker on each issue; that is, the jury found both causation and permanent partial disability.

At the close of Booker’s case, and again at the close of all the evidence, appellants moved for judgment on the basis that there was no expert testimony to sufficiently establish the cause of Booker’s asthma. Appellants also argued that the testimony of Booker’s expert witness lacked a factual basis supporting his causation theory. The court reserved on appellants’ motion. Subsequent to trial, appellants filed a timely motion for judgment notwithstanding the verdict.

The court denied the motion for JNOV, thus effectively denying the earlier motion for judgment upon which it had reserved a ruling. Appellants have raised two questions for our review, which we have rephrased for clarity: 1 Was there sufficient evidence for the trial court to submit this case to the jury on the issue of medical causation? ¹⁷¹ We answer “no,” and shall therefore reverse. We shall hold that, although Booker’s medical expert was qualified to render an opinion, as we shall discuss, infra, the expert’s testimony lacked a sufficient factual basis, and the opinion was not the product of reliable principles and methods. FACTUAL and PROCEDURAL HISTORY During the course of his employment at Giant Food, Booker was exposed to Freon 2 gas on December 15, 1998.

At the time of the accidental exposure, Booker was thirty-eight years old and worked as a janitor at Giant Food’s produce warehouse in Landover, Prince George’s County. As part of his job, he also served as a member of Giant Food’s emergency response team/fíre brigade at the warehouse. 3 On the date of the accident, a refrigerant leak occurred on site at Giant Food’s ice plant. A call went over the P.A. system for assistance by the fire brigade. Booker responded to the call.

Upon entering the ice plant, Booker saw “two guys that [were] face down, motionless. And one guy was whirling around like off balance and what not.” Booker noticed that it was “very foggy” inside the ice plant. Because he became dizzy and off-balance, he left the room to go outside and get some oxygen. Once outside, he continued to feel dizzy and felt like he might pass out.

Nevertheless, Booker went back into the ice plant and, with the help of a co-worker, dragged the two men out of the building because he felt as though their lives were at risk. The quantity of Freon that Booker inhaled is not known, although apparently he spent ¹⁷² about thirty seconds in the ice plant on both of his rescue attempts. . Following the incident, an ambulance took Booker to Prince George’s Hospital. His presenting symptoms included a headache, dizziness, and uneasy breathing.

Booker was placed on oxygen and remained at the hospital overnight. After his discharge on the following day, he continued to feel weak and had a headache. Several days later, Booker returned to the emergency room with the same symptoms. Over the ensuing few weeks, Booker made a total of three or four visits to the emergency room of Prince George’s Hospital, presenting with the same symptoms—headaches, dizziness, and shortness of breath at times.

Meanwhile, on December 16, 1998, the day , after the accident, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) sent inspectors to visit the Landover warehouse. The inspectors went to the warehouse because “[a] refrigerant leak had occurred on site at the company’s ice plant exposing six Giant employees as well as employees of the Prince George’s County Fire Department to freon.” 4 The OSHA inspectors indicated that the injuries were á result of the elevated Freon, and a deficiency of oxygen (as a result of the Freon displacing the oxygen). The inspectors were unable to detect any other chemical agents, but specifically noted in an “Inspection Narrative,” filed after their visit, that “Formation of phosgene gas was ruled out by Giant personnel and this inspector due to the distance from the ice makers and more importantly by the fact that the water heater is electric and does not have a pilot light.” On January 18,1999, Booker presented for evaluation at the Johns Hopkins Center for Occupational and Environmental Health, having been referred by Kemper Insurance. 5 Dr. ¹⁷³ Brian Schwartz, MD., MS., evaluated Booker and wrote the following about the examination: HISTORY: Mr. Booker presents for evaluation today. His chief complaint is weakness.

This 38 year old male was in his usual state of health until December 15, 1998, when a rescue at Giant Foods was attempted, and during the rescue attempt he was exposed to Freon refrigerant on 2 separate occasions for approximately 30 seconds each. His complaints include a headache 2 times per week, that he describes as being a tension type headache that lasts somewhere between 30 minutes and 1 hour. He also complains of a dry throat, especially with the heater on. Mr. Booker is in good health and taking no medications, he has no allergies and no past medical history of significance.

He underwent an elective hemmorhoidectomy on December 31, 1998. The patient currently denies any chest pains, shortness of breath, abdominal pain or neurologic symptoms, other than those mentioned above. PHYSICAL EXAMINATION: His blood pressure and vital signs are normal. The patient’s neurologic exam is non-focal and within normal limits.

Lungs are clear with good air movement. The rest of the physical exam is within normal limits. No records were provided for evaluation at this time. In answer to the questions posed, Mr. Booker is capable of working in his regular job now without restrictions.

His current chronic symptoms of headache and weakness cannot be explained by the acute exposure that occurred over one month ago. The exposure in question is not likely to have resulted in any chronic problems. No further medical care is needed at this time. All the patient’s questions were answered.

He was urged to seek follow up care if any further problems arose. Booker returned to work in a full-time, unrestricted capacity. In February 1999, Booker was once again called out with the fire brigade to report to a chemical spill caused by a hydraulic leak in a fork lift. Employees placed a powder-based absorbing material on the floor which began accumulat ¹⁷⁴ ing dust, and Booker started coughing.

He received medical treatment at the Giant Food clinic for employees injured on the job and missed one day of work, but reported no other symptoms. Booker visited Dr. Barry Redjaee in early March 2000, upon referral of his primary care physician, Dr. Rointan Farahi-Far. Dr. Redjaee is the medical director at Southern Maryland Hospital and the director of the pulmonary department and the asthma clinic. 6 Dr. Redjaee became Booker’s treating physician with respect to the asthma related symptoms. Booker had been seen by Dr. Farahi-Far in 1999 and early 2000, and had been diagnosed with asthma, and placed on two different inhalers and a Singular tablet.

Dr. Redjaee conceded that he had not reviewed any medical records created between January 1999 and March 2000 from Dr. Farahi-Far’s office, and did not know when Booker first began complaining of asthma symptoms. When Booker visited Redjaee in March 2000, he “gave no previous history of any pulmonary prob-' lems.” 7 Dr. Redjaee diagnosed Booker as having adult on-set asthma. A pulmonary function test to measure Booker’s lung capacity showed that he had “mild to moderate airflow obstruction with a reversible component.” According to Dr. Redjaee, “[bjasically that means that he had evidence of asthma which got better after [he took] the broncho dilator medicine, which is a medicine that opens the lungs up.” Between March 2000 and April 2002, Dr. Redjaee saw Booker on a total of eleven occasions. Booker’s condition improved with the inhalers and steroid tablets, and a subse ¹⁷⁵ quent pulmonary function test revealed that he had “mild airflow obstruction, which is just mild asthma which was improved when [compared 1 to the prior pulmonary function test.” As a result of the accidental exposure to the Freon, Booker filed a claim for benefits with the Maryland Workers’ Compensation Commission pursuant to Title 9 of the Labor and Employment Article of the Maryland Code.

Effective February 17,1999, the Commission awarded temporary total disability benefits and medical expenses. Booker sought additional benefits in the form of permanent partial disability benefits. The Commission held a hearing on October 3, 2001, and denied the permanent partial benefits on October 10, 2001, by writing: Hearing was held in the above claim at Hyattsville, Maryland on October 3, 2001, on the following issue: Nature and extent of disability The Commission finds that as the result of the accidental injury of December 15, 1998, the claimant was paid compensation for temporary total disability from December 16,1998 to January 12, 1999. The Commission finds on the issue presented that the claimant sustained no permanent partial disability to the lungs or chest, no causal connection regarding accidental inju/nj and permanent partial disability—any permanent partial disability is due to pre-existing conditions.

(Emphasis added). Booker sought de novo judicial review in the circuit court pursuant to §§ 9-737 and 9-745 of the Labor and Employment Article. See Md.Code Ann., Lab. & Empl. §§ 9-737, 9-745 (Repl.Vol.1999 & Supp.2002). Trial was held before a jury on August 8, 2002, and the jury returned a verdict in favor of Booker, finding both causation and permanent partial disability.

At the close of Booker’s evidence, and at the close of all the evidence, appellants moved for judgment pursuant to Md. Rule 2-519. Appellants conceded that Booker had asthma, ¹⁷⁶ but moved for judgment on the basis that Booker’s medical expert, Dr. Redjaee, did not provide a sufficient factual basis for concluding, to a reasonable degree of medical probability, that the accidental exposure to Freon caused the asthma. The appellants argued several positions, but placed their greatest emphasis on the fact that Dr. Redjaee conceded that he had never read about, nor knew of, asthma being caused by exposure to Freon. The court reserved a ruling on both motions.

Following the jury verdict in favor of Booker, appellants filed a timely motion for judgment notwithstanding the verdict (or in the alternative a motion for new trial). On September 23, 2002, the court denied appellants’ motions. STANDARD of REVIEW We review the denial of a motion for judgment and a motion for judgment notwithstanding the verdict (“JNOV”) under the same appellate lens. Suburban Hosp., Inc. v. Kirson, 128 Md.App. 533, 542 , 739 A.2d 875 (1999) (citations omitted), rev’d on other grounds, 362 Md. 140 , 763 A.2d 185 (2000).

In order to survive a motion for judgment (and JNOV), a plaintiff has the burden of producing sufficient evidence to send the case to a jury for a resolution of fact. See American Airlines Corp. v. Stokes, 120 Md.App. 350, 353 , 707 A.2d 412 (1998). As this Court explained in General Motors Corp. v. Bark, 79 Md.App. 68 , 555 A.2d 542 (1989): If the claimant loses before the Commission and then appeals to the circuit court, the ... claimant has the burden of producing a prima facie case before the trial court, lest he suffer a directed verdict against him, just as he, as the original proponent, had that same burden before the Commission____The claimant has, moreover, the same burden to persuade the trial court by a preponderance of the evidence that his claim is just as he had to persuade the Commission in the first instance. Id. at 79-80 , 555 A.2d 542 (quoted with approval in Stokes, supra, 120 Md.App. at 353 , 707 A.2d 412 ); see also Md.Code ¹⁷⁷ Ann., Lab. & Empl. § 9-745(b) (Repl.Vol.1999) (“In each court proceeding under this title: (1) the decision of the Commission is presumed to be prima facie correct; and (2) the party challenging the decision has the burden of proof.”).

Given a plaintiffs burden of production, he or she may fend off a motion for judgment by producing legally sufficient evidence to send the case to the jury. In Jacobs v. Flynn, 131 Md.App. 342, 353-54 , 749 A.2d 174 (2000), cert. denied, 359 Md. 669 , 755 A.2d 1140 (2000), this Court wrote the following about the standard of review for such motions. A party is entitled to a judgment not withstanding the verdict (JNOV) [and judgment] when the evidence at the close of the case, taken in the light most favorable to the nonmoving party, does not legally support the nonmoving party’s claim or defense. See Bartholomee v. Casey, 103 Md.App. 34, 51 , 651 A.2d 908 (1994), cert. denied, 338 Md. 557 , 659 A.2d 1293 (1995).

In reviewing the denial of a JNOV, we “ ‘must resolve all conflicts in the evidence in favor of the plaintiff and must assume the truth of all evidence and inferences as may naturally and legitimately be deduced therefrom which tend to support the plaintiffs right to recover....’” Houston v. Safeway Stores, Inc., 346 Md. 503, 521 , 697 A.2d 851 (1997)(quoting Smith v. Bernfeld, 226 Md. 400, 405 , 174 A.2d 53 (1961)). If the record discloses any legally relevant and competent evidence, however slight, from which the jury could rationally find as it did, we must affirm the denial of the motion. See Franklin v. Gupta, 81 Md.App. 345, 354 , 567 A.2d 524 , cert. denied, 319 Md. 303 , 572 A.2d 182 (1990). If the evidence, however, does not rise above speculation, hypothesis, and conjecture, and does not lead to the jury’s conclusion with reasonable certainty, then the denial of the JNOV was error.

See Bartholomee, 103 Md.App. at 51 , 651 A.2d 908 . Nevertheless, “[o]nly where reasonable minds cannot differ in the conclusions to be drawn from the evidence, after it has been viewed in the light most favorable to the plaintiff, does the issue in question become one of law for the court and not of fact for the jury.” Pickett v. Haislip, 73 Md.App. ¹⁷⁸ 89, 98, 533 A.2d 287 (1987), cert. denied, 311 Md. 719 , 537 A.2d 273 (1988). Id. at 353-54, 749 A.2d 174 (parallel citations omitted). DISCUSSION As we have noted, appellants concede that Booker has adult on-set asthma.

The current dispute is whether Booker’s exposure to Freon on December 15, 1998, “caused” his asthma. At trial, Dr. Redjaee testified (via a videotaped deposition) that the exposure caused the asthma. His opinion was offered in response to Booker’s counsel, who asked Dr. Red-jaee if he had “an opinion based on a reasonable degree of medical probability as to whether his current pulmonary symptoms are related to the event at Giant Food, which occurred on December 15, 1998?” 8 To that question, Dr. Redjaee responded, “Yes, based on my evaluation of him and the history and physical, I have a good degree of probability that this was related to that incident that happened to him.” The crux of appellants argument is that Dr. Redjaee did not provide an adequate factual basis, nor did he rely on reliable principles and methods, to support his opinion. In other words, appellants posit that simply because an expert says “because I think so,” or “because I say so,” does not necessarily mean that a court must accept the opinion.

The Need for Expert Testimony When a complicated issue of medical causation arises, expert testimony is almost always required. S.B. Thomas, Inc. v. Thompson, 114 Md.App. 357, 382 , 689 A.2d 1301 (1997); Stokes, supra, 120 Md.App. at 359 , 707 A.2d 412 . The parties agree that the issue here is a “complicated medical question.” ¹⁷⁹ Booker, however, relying on S.B. Thomas, argues that expert testimony was not needed in this case. In S.B. Thomas, this Court went to great lengths to synthesize prior appellate case law regarding whether an issue of causation required expert medical opinions.

Judge Moylan, who authored the opinion, wrote: To the extent to which we can distill any general wisdom out of the case law, it seems to be this. A genuine jury issue as to the causal relationship between an earlier injury and a subsequent trauma may sometimes be generated, even in the absence of expert legal testimony, when some combination of the following circumstances is present: 1) a very close temporal relationship between the initial injury and the onset of the trauma; 2) the manifestation of the trauma in precisely the same part of the body that received the impact of the initial injury; 3) as in Schweitzer v. Showell, [ 19 Md.App. 537 , 313 A.2d 97 (1974) ] some medical testimony, albeit falling short of a certain diagnosis; and 4) an obvious cause-and-effect relationship that is within the common knowledge of laymen. Conversely, the causal relationship will almost always be deemed a complicated medical question and expert medical testimony will almost always be required when one or more of the following circumstances is present: 1) some significant passage of time between the initial injury and the onset of the trauma; 2) the impact of the initial injury on one part of the body and the manifestation of the trauma in some remote part; 3) the absence of any medical testimony; and 4) a more arcane cause-and-effect relationship that is not part of common lay experience (the ileitis, the pancreatitis, etc.) When all is said and done, we are perhaps reduced to a truism: the stronger the case for the causal connection even absent expert medical testimony, the lesser the need for such testimony; the weaker the non-medical case for the causal connection, the greater the need for such testimony. There is more involved, of course, than a simply inverse proportion between the strength of the non-medical-expert ¹⁸⁰ case of causation and the need for expert medical testimony.

Some questions of causation might involve medical knowledge so recondite that expert testimony would always be required. Other questions of causation would not. There can be no hard and fast rule controlling all cases. Id. at 381-383, 689 A.2d 1301 (footnote omitted).

There are examples in the extreme. A claimant who was struck by a vehicle being operated by a fellow employee, while at his place of work, and who is immediately treated for a fracture of leg bones, need not necessarily provide expert medical evidence to support the causation conclusion. Occupational diseases, infections, and other harm to internal tissue or organs, however, present a more esoteric question. A determination of causation in the latter category of cases by a jury of laypersons is less possible without the aid of medical evidence.

It is particularly so, as here, when there has been a significant passage of time between the exposure and the onset of the disease and where there is lacking an obvious cause and effect relationship that is within the common knowledge of laymen. We have said an expert’s testimony to a reasonable degree of probability is not always essential to prove causation; rather a plaintiffs burden of proof will be satisfied by expert testimony “with respect to causation as to what is possible if, in conjunction with that testimony, there is additional evidence of causation introduced at trial that allows the finder of fact to determine that issue.” Jacobs v. Flynn, supra, 131 Md.App. at 355 , 749 A.2d 174 quoting Karl v. Davis, 100 Md.App. 42, 52 , 639 A.2d 214 (1994). Our review of the record does not reveal such “additional evidence of causation.” Booker, however, relying on S.B. Thomas, argues that expert testimony was not needed in this case because of the temporal proximity between the accident and on-set of injury, and by suggesting that there was an obvious cause and effect relationship. We disagree.

A medical diagnosis of asthma, and its antecedent cause, requires expert testimony. We ¹⁸¹ think that a cause-and-effect evaluation of adult on-set asthma is no less complicated then the claimant’s back injury in Stokes , and the claimant’s herniated disc in S.B. Thomas. The contrasting medical testimony in the instant case was provided by Dr. Philip Witorsch, M.D., who testified that even medical doctors do not understand the cause of adult on-set asthma in 80-40% of such cases (i.e., the development of asthma is “idiopathic”). Such an arcane cause-and-effect relationship is beyond the ken of average laypersons.

Wood v. Toyota, 134 Md.App. 512, 518 , 760 A.2d 315 (2000), cert. denied, 362 Md. 189 , 763