Keene Corp. v. Hall

MOTZ, Judge. In October 1988, appellees, David Hall, a laborer at the Bethlehem Steel Sparrows Point Steel Mill from 1936 to 1939 and at the Bethlehem Steel Sparrows Point Shipyard from 1940 to 1976, and his wife, Henrietta, filed this action in the Circuit Court for Baltimore City against various manufacturers or providers of asbestos products and their successors, including appellant, Keene Corporation. The Halls alleged, inter alia, product defect and negligence and claimed compensatory and punitive damages. Their case was consolidated with four others and tried for four and one half weeks before a jury.

The jury awarded the Halls no punitive damages; it did award them $471,323.78 in compensatory damages ($466,000 of which was for non-economic damages) against Keene, Owens-Illinois, Inc. and the Manville Asbestos Disease Compensation Trust Fund. Verdicts in favor of other plaintiffs were also returned but, due to set-offs from prior settlements, no other judgments against Keene were entered. Accordingly, no other plaintiffs are appellees here; moreover, no other defendant ⁶⁴⁸ has appealed. On appeal, Keene raises five issues, which we have reordered, but not reworded, as follows: 1.

Whether the trial court erred in permitting Dr. Gerrit Schepers to testify upon scientifically unsound medical diagnostic techniques and resultant opinions in violation of the Frye/Reed Standard. 2. Whether the trial court erred in failing to enter judgment for Keene in that the testimony of Plaintiffs expert witness was insufficient to support a finding of a causal relationship between plaintiffs laryngeal cancer and his exposure to asbestos. 3. Whether the trial court erred in denying Keene’s motion for mistrial when plaintiffs counsel during rebuttal argument referred to defendants as corporate liars, mutilators, murderers, and common criminals. 4. Whether the partiality and improper conduct of the trial judge against defendants and their counsel so tainted the proceedings and prejudiced the jury as to warrant a new trial. 5.

Whether the errors, omissions and inaudible passages in the trial transcript have so prejudiced Keene’s right to appellate review as to require a new trial. (i) At trial, the Halls’ expert, Dr. Gerrit Schepers, testified that, in his opinion, the cause of Mr. Hall’s laryngeal cancer was exposure to asbestos. That opinion was based on several factors, one of which was Dr. Schepers’s use of polarized light microscopy (PLM) to identify asbestos fibers embedded in Mr. Hall’s tissue at the site of his tumor. Keene asserts that asbestos fibers cannot be identified through the use of PLM on a stained tissue slide and that Dr. Schepers’s attempt to do so is a use of PLM that is neither reliable nor generally accepted.

Accordingly, Keene claims that permitting Dr. Schepers to testify as to this use of PLM was error. Specifically, Keene asserts that this testimony violated the standard enunciated in Frye v. United States, 293 F. 1013 (D.C.Cir. ⁶⁴⁹ 1923) and adopted in Maryland in Reed v. State, 283 Md. 374 , 391 A.2d 364 (1978), ie., a methodology must be “generally accepted as reliable within the expert’s particular scientific field.” Reed, 283 Md. at 381 , 391 A.2d 364 . The lower court held a Frye hearing on the admissibility of Dr. Schepers’s use of PLM on human tissue. Dr. Schepers, who was not the treating physician of any of the plaintiffs but has a background in the study of dust diseases and has testified as an expert for plaintiffs in numerous asbestos cases, explained his use of PLM.

He stated that he examines a tissue sample under a microscope, equipped with a polarizing filter. He then rotates the stage which holds the tissue sample until refractive materials become visible. Dr. Schepers testified that, by using a quartz filter, dirt or collagen in the tissue sample are filtered out. By manipulating the power setting on the microscope, Dr. Schepers claims the ability to identify asbestos fibers in human tissue.

Dr. Schepers then photographs the polarized material. Plaintiffs proffered that Dr. Schepers’s photomicrographs were evidence that asbestos fibers were visible in plaintiffs’ tissue samples and confirmed the causation link between asbestos exposure generally and development of the specific malignancy under consideration. Defendants’ expert, Dr. Grover Hutchins, a board certified pathologist, testified that this use of PLM was not generally accepted in the medical community. He explained that although PLM is useful to identify asbestos in inanimate building materials, he knew of no one else who has used PLM, as Dr. Schepers did, to identify asbestos fibers in human tissue and had found “no reference [in research materials] to anyone using this technique.” Dr. Hutchins further testified unequivocally that, in his opinion, asbestos fibers cannot be identified through the use of PLM on a stained slide of human tissue.

Rather, Dr. Hutchins opined that asbestos fibers could be visualized by using PLM on human tissue samples only after undertaking a very extensive process. One must take the tissue, digest it, accumulate the broken down tissue in a test tube, wash it, resuspend it, put it on a micropore filter and then, and only then, examine it with PLM or some other ⁶⁵⁰ method. Alternatively, tissue must be burned away leaving residue, which is only then subject to PLM examination. Even if these elaborate processes are used, Dr. Hutchins stated that PLM is of limited value in examining human tissue because of its inability to differentiate among asbestos fibers and non-asbestos fibers of similar dimension in the tissue.

Without digestion or burning, according to Dr. Hutchins, it is impossible to detect asbestos fibers in tissue because there are a number of elements that polarize, creating a confusing image. (It is conceded that Dr. Schepers did not employ the tissue digestion or burning preparations described by Dr. Hutchins.) Dr. Hutchins believed that the material in Dr. Schepers’s photomicrographs, identified as asbestos by Dr. Schepers, was actually collagen. Dr. Hutchins cited and discussed two scientific articles as supporting his opinion that Dr. Schepers’s use of PLM was neither reliable nor generally accepted in the scientific community. Dr. Frank Haig, a professor of theoretical physics, also testified as an expert for the plaintiffs.

Dr. Haig reviewed Dr. Schepers’s deposition testimony and his photomicrographs and stated that Dr. Schepers’s methodology was theoretically possible, in that pure and uncoated asbestos fibers have a known refractive that would allow visualization by PLM. Dr. Haig asserted that the underlying “physical principles were very well known, very well accepted” but that he did not know if PLM was generally used to detect asbestos fibers in human tissue and further that he did not know of any other doctor who had utilized PLM in this way to detect the presence of asbestos fibers in human tissue. Furthermore, he could not offer any scientific literature in which others had used PLM as Dr. Schepers did. Dr. Schepers himself was also unable to name any other doctors who had employed PLM as he had.

When asked by the trial court whether other researchers utilized the same technique as he did in this case, Dr. Schepers replied: “I can’t answer for what other people don’t know” and “other people use other methods.” He referred to “institutes” in Germany and England that had published articles on this use of PLM. ⁶⁵¹ No book or article from these “institutes,” however, was introduced as evidence at the Frye hearing; indeed, at that hearing, Dr. Schepers did not name even one author or article supporting his use of PLM. At the conclusion of the Frye hearing, the trial court stated: both [of plaintiffs] witnesses and Dr. Hutchins, and if I haven’t read it, but they say the article as well, says it [PLM] just isn’t a technique that’s been used. Nevertheless, the trial court decided ... to let it in. I have a lot of problems, as I expressed.

The basic underlying technique is an accepted one, the polarized light and the phase contrast are accepted ways of bringing up the invisible. I have testimony from defendants’ expert that it can’t be done. I have a technique that hasn’t been done according to — but I do not believe that the fact that it hasn’t been done means that it’s an improper technique under the Frye standard. I really am not at all convinced that this is a Frye-type problem.

If I were, I would be more conducive to the defendants’ arguments, but I think what has happened here is that the plaintiffs’ expert has used accepted things to bring about results that aren’t accepted, that there is no Frye problem as such, and that the only answer to whatever effect Dr. Schepers’ testimony will have is for the defendants to bring back Dr. Hutchins or whoever else they care to bring to try to convince the jurors that what Dr. Schepers will tell them is asbestos fiber either isn’t asbestos fiber or that there’s no way he could identify it as such. So I’m going to let it in. Initially, the Halls assert that the Frye-Reed rule is inapplicable here for two reasons. First, they claim that the Frye-Reed standard is inapplicable in Maryland in civil cases.

Second, they argue that, even if applicable in civil cases, Frye-Reed is “only appropriate as a test of novel scientific principles or techniques, not the application of those techniques in a specific case.” ⁶⁵² For the first argument, the Halls rely on three cases: Sabatier v. State Farm Mutual Automobile Ins. Co., 323 Md. 232 , 592 A.2d 1098 (1991); Myers v. Celotex Corp., 88 Md.App. 442 , 594 A.2d 1248 (1991), cert. denied, 325 Md. 249 , 600 A.2d 418 (1992) and Haines v. Shanholtz, 57 Md.App. 92 , 468 A.2d 1365 , cert. denied, 300 Md. 90 , 475 A.2d 1201 (1984). None hold that the Frye-Reed test is inapplicable in civil cases. Sabatier involved a dispute as to whether thermography was a “necessary and reasonable” PIP expense, not whether thermography was an established test so its results could be considered as evidence at a trial.

In Sabatier , the Court of Appeals did remark, in passing, that in Reed , it adopted the view “that Frye was deliberately intended to interpose a ' substantial obstacle to the unrestrained admission of evidence in criminal cases based upon new scientific principles.” 323 Md. at 249 , 592 A.2d 1098 (emphasis added). That, of course, is the effect of Reed . There is nothing in Reed , or Sabatier , however, that indicates that the Frye-Reed standard is confined to criminal cases. Moreover, just a sentence before the above passing reference, the Sabatier court noted: After careful review of the voluminous record in this case, we conclude that the Frye-Reed standard of general acceptability, while providing a helpful framework for assessing the admissibility of the results of a diagnostic procedure, is a standard more stringent than the legislature intended when, in enacting § 539 [of Art. 48A, Maryland Code (1991 Repl.Vol.) ], it formulated the “necessary” and “reasonable” test for reimbursement for medical services. 323 Md. at 249 , 592 A.2d 1098 .

(emphasis added). This language strongly suggests that the Sabatier court regarded the Frye-Reed standard as fully applicable in appropriate civil cases, i.e., when “assessing the admissibility of the results of a diagnostic procedure.” Myers and Haines are similarly inapposite. In the latter, we simply held that the Frye-Reed rule did not apply to the reliability of genetic testing for establishing paternity because the General Assembly had expressly recognized its reliability for this purpose in art. 16, § 66G of the Maryland Annotated ⁶⁵³ Code, presently codified at Md.Code Ann., Fam.Law § 5-1029 (1991). See Haines, 57 Md.App. at 97-98 , 468 A.2d 1365 .

In Myers , another asbestos case, we held that the trial court erred in assertedly applying the Frye-Reed test to strike Dr. Schepers’s testimony as to how asbestos fibers caused cancer. 88 Md.App. at 455 , 594 A.2d 1248 . We pointed out that the Frye-Reed rule “generally applies to the admissibility of evidence based upon novel scientific techniques or methodologies” but not to “medical opinion evidence which is not ‘presented as a scientific test the results of which were controlled by inexorable, physical laws.’ ” 88 Md.App. at 458-459 , 594 A.2d 1248 (quoting State v. Allewalt, 308 Md. 89, 98 , 517 A.2d 741 (1986)). Tellingly, the Halls do not assert that the case at hand is one, like Myers , in which Dr. Schepers is simply stating his expert medical opinion. Rather, they at least implicitly concede that here, unlike Myers , Dr. Schepers’s opinion is based on a scientific technique controlled “by inexorable, physical laws.” Thus, Sabatier, Haines, and Myers do not hold, or even imply, that the Frye-Reed test is inapplicable in civil cases.

Moreover, the year after issuing Reed , the Court of Appeals in Thompson v. Thompson, 285 Md. 488, 497 , 404 A.2d 269 (1979), appeal dismissed, 444 U.S. 1062 , 100 S.Ct. 1002 , 62 L.Ed.2d 745 (1980), remarked that because the Frye-Reed rule had not been complied with, i.e., no evidence was adduced “showing that this technique is sufficiently established to have gained general acceptancy in its particular field,” certain evidence could not be considered in a civil case. 1 Numerous other jurisdictions have similarly found the Frye rule appliea ⁶⁵⁴ ble in civil cases. See, e.g., Barrel of Fun, Inc. v. State Farm Fire & Cas. Co., 739 F.2d 1028, 1031 (5th Cir.1984); Windmere, Inc. v. International Ins. Co., 105 N.J. 373 , 522 A.2d 405, 407 (1987); Neises v. Solomon State Bank, 236 Kan. 767 , 696 P.2d 372, 375-376 (1985); Huntingdon v. Crowley, 64 Cal.2d 647 , 51 Cal.Rptr. 254, 260 , 414 P.2d 382, 388 (1966); Puhl v. Milwaukee Auto.

Ins. Co., 8 Wis.2d 343 , 99 N.W.2d 163 (1959) (cited in Reed, 283 Md. at 382-383 , 393 A.2d 364 ); Kluck v. Borland, 162 Mich.App. 695 , 413 N.W.2d 90, 91 (1987); Burkett v. Northern, 43 Wash.App. 143 , 715 P.2d 1159, 1160 (1986); Cameron v. Knapp, 137 Misc.2d 373 , 520 N.Y.S.2d 917, 918 (N.Y.Sup.1987); D'Arc v. D'Arc, 157 N.J.Super. 553 , 385 A.2d 278, 281 (1978) (cited in Reed, 283 Md. at 384 , 391 A.2d 364 ). Accordingly, there is no merit to the Halls’ suggestion that the Frye-Reed rule is inapplicable here because this is a civil case. The Halls’ alternative argument, which appears to be the basis of the circuit court’s decision to admit the PLM evidence, is that the Frye-Reed standard is inapplicable here because this case involves not “novel scientific or techniques” but the “application of those techniques.” The only basis proffered by the Halls for this argument is the following discussion in the Reed opinion: “[E]xperts may disagree as to the application of a technique, or as .to the results of that application, but they do not generally question that the technique is capable of producing the results claimed.

For instance, it is common knowledge that psychiatric diagnoses are often at odds with each other, and it is easy to picture experts disputing whether two writing samples came from the same hand. It is much more difficult to imagine experts disputing whether psychiatric diagnoses or handwriting identifications are possible with any significant degree of reliability. Yet this is precisely the nature of the voice print dispute; experts question the capability of the process itself, not just the results of its application.” ⁶⁵⁵ 283 Md. at 397-98 , 391 A.2d 364 (emphasis added by Reed court) (quoting, Comment, The Voiceprint Dilemma: Should Voices Be Seen and Not Heard?, 35 Md.L.Rev. 267, 280 n. 79 (1975)). In this explanation, the distinction is simply being drawn between a new scientific technique, which must pass the Frye test, and application of an established technique, which need not necessarily pass the Frye test.

The Halls, however, confuse application of an established technique for the purpose for which the technique was designed with application of the technique for another purpose, one different from that for which it was designed. If the reliability of a technique for a specific purpose has been established, the application of that technique in a particular case is not subject to the Frye rule, as the Reed court explained in the above quoted passage. On the other hand, the mere fact that a technique is established as reliable for one purpose does not mean that its application for an entirely different purpose escapes examination undér the Frye test. For example, if an analysis is recognized as valid for identifying handwriting, its application to analyze particular handwriting need not meet the Frye test but if an analysis previously recognized as reliable to analyze handwriting is used to analyze fingerprints, it would have to meet the Frye test in order to be admitted.

Thus, time and again, the application of an arguably accepted technique for an entirely new purpose has been subjected to the Frye analysis, and held not generally accepted in the relevant community, and so inadmissible. See, e.g., United States v. Tranowski, 659 F.2d 750, 755-57 (7th Cir.1981) (expert astronomer’s opinion, as to date of photograph, should have been excluded when based in part on use of a sun chart, which, although previously used to measure the height of lunar mountains, had never before been used to date a photograph); United States v. Kilgus, 571 F.2d 508, 510 (9th Cir.1978) (expert testimony inadmissible because based on the forward looking infrared system, which, although previously used for generic identification, was not yet generally accepted for unique identification); United States v. Brown, 557 F.2d 541, 557-58 (6th Cir.1977) (expert opinion as to hair analysis ⁶⁵⁶ inadmissible because based on ion microscopic analysis, which, although previously used to trace elements in inanimate objects, was not yet generally accepted to trace elements on “organic matrices”). In sum, neither of the grounds asserted by the Halls for finding the Frye-Reed test inapplicable here has merit. 2 Accordingly, we turn to the question of whether the PLM evidence complied with this test. As the proponent of this evidence, it was the Halls’ burden at the Frye hearing to demonstrate that the PLM evidence was “generally accepted as reliable within the expert’s particular scientific field.” Reed, 283 Md. at 381 , 391 A.2d 364 .

In meeting this burden they offered only the testimony of Dr. Schepers and Dr. Haig. The former explained how he assertedly used PLM to visualize asbestos fibers in human tissue and that this method was used in German and English “institutes;” the latter opined that this use of PLM was theoretically possible. Neither of the Halls’ experts testified that this use of PLM was “generally accepted as reliable” within his “particular field.” Indeed, Dr. Haig conceded he had never used PLM in this way. Keene’s expert, Dr. Hutchins, expressly testified that: (1) this use of PLM was not reliable — asbestos fibers cannot be identi ⁶⁵⁷ fied through the use of PLM on a stained tissue slide; (2) this use was not generally accepted in the relevant scientific community; and (3) no one else had used PLM in this way to identify asbestos fibers in human tissue.

Keene offered two articles to support Dr. Hutchins’s opinion that PLM was not generally accepted as reliable as used by Dr. Schepers. Dr. Schepers, although asked, was not able to name a single doctor that used his method or a single publication that supported its use. This was the sum total of the evidence admitted at the Frye hearing. The Halls’ argument that this evidence was sufficient to establish the admissibility of this use of PLM as generally accepted in the relevant scientific and medical community rests entirely on their claim that “plaintiffs’ expert witnesses were better able [than defendants’ expert] to comprehend and understand the process at issue and form a judgment about it.” There is nothing in the record that supports the claim that the Halls’ experts were more knowledgeable than Dr. Hutchins.

Moreover, even if Dr. Schepers and Dr. Haig are the persons in the entire country best suited to evaluate this use of PLM, in order for it to be a basis for their expert opinion at trial in Maryland, it must be “generally accepted as reliable within [their] ... field,” ergo, Dr. Schepers cannot be the only person who advocates the use of PLM in this way. See Reed, 283 Md. at 398-399 , 391 A.2d 364 (expressly rejecting finding that general acceptance means acceptance among those “directly knowledgeable through work, utilization of the techniques, experimentation and so forth” and not the broad, relevant, general scientific community). See also Kropinski v. World Plan Executive Council, 853 F.2d 948, 957 (D.C.Cir. 1988) (if no evidence of a significant following, no evidence of general acceptance); United States v. Kozminski, 821 F.2d 1186, 1201-02 (6th Cir.1987), aff'd, 487 U.S. 931 , 108 S.Ct. 2751 , 101 L.Ed.2d 788 (1988) (first presentation of theory is evidence that it has not gained general acceptance); Brown, 557 F.2d at 557-58 (unsupported assertions by proponent’s experts do not establish general acceptance). Accordingly, because the evidence offered by the Halls at the Frye hearing ⁶⁵⁸ demonstrated that only Dr. Schepers used PLM to identify asbestos fibers in undigested human tissue and not that any one else used PLM in this way, it failed to demonstrate that this use of PLM was generally accepted in the relevant scientific and medical community.

Our independent research, see Reed 283 Md. at 380-381 , 391 A.2d 364 , confirms this view. Although, as indicated within, Dr. Schepers has testified in numerous asbestos cases, in none of the judicial opinions involving those cases is there any indication that he based his opinion on the PLM technique at issue here or testified as to this use of PLM. See Flannigan v. GAF Corp., 904 F.2d 36 (text in Westlaw) (6th Cir.1990) (Dr. Schepers testified as to state of the art knowledge as to dangers of asbestos); Jackson v. Johns-Manville Sales Corp., 781 F.2d 394 (5th Cir.), cert. denied, 478 U.S. 1022 , 106 S.Ct. 3339 , 92 L.Ed.2d 743 (1986) (Dr. Schepers identified as one expert); Ecklund v. GAF Corp., 766 F.Supp. 384, 386 (W.D.Pa.1991) (Dr. Schepers opined asbestos fibers can be invisible); Musser v. Bell Asbestos Mines, Ltd., No. 81-3929, 1986 WL 2374 (E.D.Pa.1986) (Dr. Schepers identified as expert who told asbestos industry