Montgomery Mutual Insurance v. Chesson

DAVIS, Judge. Montgomery Mutual Insurance Company, appellant, appeals from a jury verdict in the Circuit Court for Howard County (Moylan, Daniel, J., presiding), in which the jury, finding accidental injury and causal relationship, reversed decisions of the Workers’ Compensation Commission. The court had accepted and admitted the expert testimony and opinions of Ritchie Shoemaker, M.D. over appellant’s objection. Appellant presents one question for our review, which we rephrase: Did the Circuit Court for Howard County err and abuse its discretion in finding that the Frye-Reed Doctrine did not apply to the testimony of Ritchie Shoemaker, M.D.?

We answer in the negative and shall therefore affirm. FACTUAL BACKGROUND Appellees Josephine Chesson, Martha Knight, Carole Silberhorn, Linda Gamble, Kenneth Lyons and Connie Collins were all employees of the Baltimore Washington Conference of the United Methodist Church (BWCUMC), located at 9720 Patuxent Woods Parkway, Columbia, Maryland in Howard County. Appellant notes that “[i]t is stipulated that on or about November 18, 2002 a foul odor” emanated throughout the building, which led to a “maintenance crew breaking through an interior wall.” The crew discovered two forms of mold present in the building. Each appellee filed a claim with the Workers’ Compensation Commission (the Commission) against BWCUMC and appellant, BWCUMC’s insurance carrier for workers’ compensation coverage, alleging that they each had sustained an accidental injury or occupational disease, known as sick building syndrome, arising out of and in the course of their employment, due to the exposure to toxic mold in November of 2002.

The Commission disallowed three of appellees’ claims and awarded partial compensation to the ⁵⁵⁴ remaining appellees based on the Commission’s findings that those appellees sustained an accidental injury. Subsequently, each appellee filed a petition for judicial review in the circuit court. Upon considering the parties’ Joint Motion to Consolidate, the court consolidated the six petitions. Each appellee was examined and treated by Dr. Shoemaker, a licensed physician in the State since 1980 and board certified in the field of family medicine.

Appellees sought to have Dr. Shoemaker testify on their behalf to discuss his examination methods and explain his diagnosis of appellees’ affliction with sick building syndrome caused by their exposure to toxic mold. Prior to trial in the circuit court, appellant filed a Motion in Limine to Exclude Testimony of Ritchie Shoemaker, M.D. Appellant argued that Dr. Shoemaker’s testimony should be excluded because his “methodologies used for diagnosis, ... [his] use of Cholestyramine for treatment of “neuro-toxic” illness ... [and his] theories regarding the causal connection between mold exposure and human health effects” are not generally accepted by the scientific community. In addition, appellant urged that Dr. Shoemaker’s opinion was based upon “new science” and was “unreliable.” In response, appellees maintained that Dr. Shoemaker’s testimony was admissible and that the Frye-Reed test did not apply in this case because Dr. Shoemaker was offering his expert opinion as a general practitioner and treating physician for appellees. After considering the parties’ memoranda and hearing argument on July 6, 2005, the court rendered the following ruling from the bench: ...

I’m going to deny the Motion in Limine to exclude the testimony of Dr. Ritchie Shoemaker, and I have reviewed the entire submissions and responses, and the cases that you’ve cited, and also have reviewed, with interest, the deposition of Dr. Shoemaker, and I’m satisfied, from the evidence that, regardless of where he starts, that Dr. Shoemaker has people fill out a form, which is not an uncommon practice among physicians, or physician’s offices, but — he ⁵⁵⁵ then goes on and he takes a history, and — of the patients, and he physically examines them, and then does testing, and the particular tests that he uses are different various and sundry blood tests. He was asked the question in his voir dire examination, whether he ever testified as an expert witness, before, in this area, relating to the diagnosis causation and treatment of bio toxic, and associated illnesses. And he said ... that in Maryland, none of the cases had ever gone to trial, they’d always been settled, but he was qualified — asked the question, “have you ever been qualified in any courts, and in any other states, and he said, yes; what states? In Delaware and Colorado.” And he also indicated that he’s spending, approximately, seventy-five percent of his professional time, now, dealing with bio toxic related illness.

His particular entry into this area, and notoriety, came with Physteria [sic] problem in Maryland, and I noted, in reviewing his deposition, that he had a particular interest in wetlands, and causal relationship with that regard. But, we’re talking about a board-certified physician, who has .devoted, apparently, in the last five or six years, more than fifty percent of his time to this area of specialty, and I’m satisfied that this is not a Frye-Reed situation, it’s “diagnosis by a medical practitioner, and he, while they have not adopted, or adapted his publications, and things that he has developed; he’s published widely in his field, he’s gone to law school, and consulted, and he’s indicated he’s worked with a number of other doctors in this area; I’m satisfied that he’s qualified to render opinions in this area, and his opinions would be admissible in the things you mentioned that go to their weight, rather than their admissibility. So, I’m going to deny the Motion in Limine. 1 Appellant’s appeal to this Court followed. ⁵⁵⁶ LEGAL ANALYSIS Appellant argues that the court erred and abused its discretion by accepting Dr. Shoemaker as an expert, admitting his testimony and opinion and not subjecting his testimony to a Frye-Reed analysis. Appellant contends that the court should have excluded Dr. Shoemaker’s testimony “because the methodologies, techniques and tests used to formulate his opinions are novel scientific techniques that have no generally accepted scientific foundation.” We disagree.

I Md. Rule 5-702 (2006), the Rule which governs testimony by experts, provides: Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony. With respect to an expert’s qualifications and our standard of review, we reiterate that [i]t is a time-honored rule of evidence that in order to qualify as an expert, [one] should have such special knowledge of the subject on which he is to testify that he can give the jury assistance in solving a problem for which their equipment of average knowledge is inadequate. Broad discretion is vested in the trial court with regard to expert testimony, and that discretion will not be disturbed on appeal absent an error of law or fact, a serious mistake, or clear abuse of discretion.

We further note that objections attacking an expert’s training, expertise, or basis of knowledge go to the weight of the evidence and not its admissibility- ⁵⁵⁷ Johnson & Higgins of Pennsylvania, Inc. v. Hale Shipping Corp., 121 Md.App. 426, 444 , 710 A.2d 318 , cert. denied, Matter of Johnson & Higgins, 351 Md. 162 , 717 A.2d 385 (1998) (citations and quotation marks omitted) (emphasis added). Regarding scientific expert opinion, it is well-settled that “before a scientific opinion will be received as evidence at trial, the basis of that opinion must be shown to be generally accepted as reliable within the expert’s particular scientific field.” Reed v. State, 283 Md. 374, 381 , 391 A.2d 364 (1978). Therefore, pursuant to the standard enunciated in Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923), 2 “if a new scientific technique’s validity is in controversy in the relevant scientific community, or if it is generally regarded as an experimental technique, then expert testimony based upon its validity cannot be admitted into evidence.” Reed, 283 Md. at 381 , 391 A.2d 364 (citing Frye, supra). In Reed v. State, supra, the Court of Appeals followed the Frye Court and adopted the “general acceptance” rule, reasoning: As long as the scientific community remains significantly divided, results of controversial techniques will not be admitted, and all defendants will face the same burden.

If, on the other hand, a novel scientific process does achieve general acceptance in the scientific community, there will likely be as little dispute over its reliability as there is now concerning other areas of forensic science which have been ⁵⁵⁸ deemed admissible under the Frye standard, such as blood tests, ballistics tests, etc. ... The introduction of evidence based on a scientific process, not yet generally accepted in the scientific community, is likely to distract the fact finder from its central concern, namely the rendition of a judgment on the merits of the litigation. Without the Frye test or something similar, the reliability of an experimental scientific technique is likely to become a central issue in each trial in which it is introduced, as long as there remains serious disagreement in the scientific community over its reliability. Again and again, the examination and cross-examination of expert witnesses will be as protracted and time-consuming ... and proceedings may well degenerate into trials of the technique itself.

Id. at 388, 391 A.2d 364 . The Court also expounded upon the relationship between a trial court’s use of this standard and its exercise of discretion: Our adoption of the Frye standard does not, of course, disturb the traditional discretion of the trial judge with respect to the admissibility of expert testimony. Frye sets forth only a legal standard which governs the trial judge’s determination of a threshold issue. Testimony based on a technique which is found to have gained “general acceptance in the scientific community” may be admitted into evidence, but only if a trial judge also determines in the exercise of his discretion, as he must in all other instances of expert testimony, that the proposed testimony will be helpful to the jury, that the expert is properly qualified, etc. Obviously, however, if a technique does not meet the Frye standard, a trial judge will have no occasion to reach these further issues.

Id. at 389 , 391 A.2d 364 (citation omitted). Applying the Frye standard, a majority of the Court held that testimony based on “voiceprints” or spectogram technique was inadmissible as “evidence of voice identification” because that technology had not “achieved the general accep ⁵⁵⁹ tance in the scientific community” at that time. Id. at 399, 391 A.2d 364 . 3 More recently, the Court of Appeals, in Clemons v. State, 392 Md. 339, 363-64 , 896 A.2d 1059 (2006), further explicating the procedure, sequentially, upon the offer of expert testimony based on novel techniques, penned: Writing for this Court in Reed , Judge Eldridge observed that prior to the admission of expert testimony based on the application of novel scientific techniques, the party seeking to use the expert testimony must establish that the particular methodology is valid and reliable. Reed, 283 Md. at 380 , 391 A.2d at 367 .

As we noted in Wilson[ v. State, 370 Md. 191 , 803 A.2d 1034 (2002) ], through our discussion of the reasoning in Reed , Where the validity and reliability is so broadly and generally accepted within the scientific community, as is the case of ballistic tests, blood tests, and the like, a trial court may take judicial notice of its reliability. Likewise, a court may take judicial notice that certain procedures, widely recognized as bogus or experimental, are unreliable. When the reliability of a particular technique is not subject to judicial notice, however, ‘it is necessary that the reliability be demonstrated before testimony based on the technique can be introduced into evidence. Although this demonstration will normally include testimony by witnesses, a court can and should take notice of law journal articles, articles from reliable sources that appear in scientific journals, and other publications which bear on the degree of acceptance by recognized experts that a particular process has achieved.’ The Court concluded that the proper test for establishing the reliability of scientific opinion is whether the basis of that opinion is ⁵⁶⁰ generally accepted as reliable within the expert’s particular scientific field.

Wilson, 370 Md. at 201 , 803 A.2d at 1039-40 (citations omitted). If the trial court determines that the test is admissible, on appellate review, this Court must independently apply the Frye-Reed test to the scientific techniques at issue. See Wilson, 370 Md. at 201 n. 5, 803 A.2d at 1040 n. 5; Reed, 283 Md. at 399 , 391 A.2d at 377 (“Thus, based on our examination of the record in the instant case, the judicial opinions which have considered this question, and the available legal and scientific commentaries, we do not believe that “voiceprint” analysis has achieved the general acceptance in the scientific community, at this time, which is required under Frye ”). II Because of the nature of the proffered scientific evidence in this case, we reject appellant’s contention that the court erred or abused its discretion by not applying the Frye-Reed test to the testimony of Dr. Shoemaker.

After appellees’ counsel completed voir dire examination of Dr. Shoemaker at deposition, counsel sought to offer him as 1) “an expert in the field of medicine as a board certified family practitioner,” 2) “as an expert in the field of biotoxin-related illnesses including the diagnosis and treatment thereof’ and 3) “to express opinions concerning the causal relationship between exposure to biotoxins and illnesses.... ” For the Frye-Reed test to be applicable to the case sub judice, the court would have had to initially determine whether the methodologies employed by Dr. Shoemaker, which served as the foundation for his opinions and conclusions regarding causation and exposure to mold, are new or novel scientific techniques that have also been generally accepted by the pertinent scientific community as reliable. We hold that the court properly found that this case did not present a “Frye-Reed situation.” The court based its decision, in part, on Dr. Shoemaker’s deposition, in which Dr. Shoemaker described his experience and delineated his methodology and practices: ⁵⁶¹ [Appellees’ Counsel]: In addition to your board certification in family practice, have there been any other areas or specialties within the field of medicine that you’ve pursued since your graduation from medical school and your licensure in the State of Maryland? [Dr. Shoemaker]: I’ve been very interested in illnesses caused by exposure to biologically-produced neurotoxins since 1997. This is not a formal specialty, but if someone were to ask me what do I do in most of my family practice, it would be, I diagnose and treat patients with biotoxin-associated illnesses. [Appellees’ Counsel]: Doctor, could you tell us — you indicated that you began this interest in 1997. Could you tell us the circumstances under which you began this interest and what experience you’ve had in this area since this time? [Dr. Shoemaker]: Yes.

Beginning in 1980, I was very pleased to be a rural primary care physician in the small town of Pocomoke.... [T]here’s a lot of beautiful wetlands, and that changed to a certain extent in 1997 and— actually '96. We started hearing reports of some people finding fish with unusual lesions on them in the Pocomoke River followed by some stories of watermen, those that would contact these fish and harvest them, having unusual illnesses. There was some discussion about the possibility that an organism that’s been killing fish for years in North Carolina was now growing in the Pocomoke River. And indeed, in May of 1997, Pfiesteria was isolated from the Pocomoke River.

Over the next several months I had the chance to see patients with a very unusual grouping of symptoms. These are multiple symptoms from multiple systems who came to me in part because I was their family doctor, in part because they knew of my interest in wetlands. Specifically no one had ever seen this grouping of illnesses. I never had before.

And the symptoms were devastating. Cognitive issues to the point that people would lose excessive cognitive functions of memory and concentration and confusion and ⁵⁶² word finding. Gastrointestinal symptoms of diarrhea and cramping, musculoskeletal symptoms of joint aches and muscle aches and muscle cramping. Respiratory problems of cough, shortness of breath, asthma like syndromes that didn’t respond to asthma medications.

Fatigue certainly was dominant in this group of symptoms. One person — actually, my third one, a patient in July 1997 had a terrible kind of diarrhea, we call it a secretory diarrhea. It means that you remove your bowels whether you’ve eaten or not. And she had been to see other doctors, and they had given her antibiotics and Pepto-Bismol, and this and that.

Nothing had worked, and, quite frankly, out of desperation, because she was becoming dehydrated, I gave her an old-fashioned cholesterol drug called Cholestyramine. ... It is FDA approved to lower cholesterol, and we used to use it a lot to lower cholesterol. But what it will do is bind a whole variety of organic and inorganic molecules. And Cholestyramine happens to bind biosalts and stops secretory diarrhea.

I gave her ... the Cholestyramine and not surprised that her diarrhea stopped, but what surprised me was that her headaches stopped, her cough stopped and her memory returned. To me that was very unusual. I started, therefore, giving [Cholestyramine] to other patients with Pfiesteria illness and almost magically these patients started improving rapidly. [Appellees’ Counsel]: Let me just stop you for one moment, Doctor. What exactly was Pfiesteria or is Pfiesteria? [Dr. Shoemaker]: Pfiesteria is an organism like an algae, we call it a dinoflagellate.

It’s actually one of those primitive organisms on earth. This Pfiesteria is one of the types that lives in estuaries, and it has a variety of phases one of which is a moveable, or motile, phase in which it’ll be in the water column. In that motile phase if there is presentation of fish and the possibility of breeding, Pfiesteria will release a molecule or a suite of molecules that are called toxins, or biologically-produced tox ⁵⁶³ ins, and they are neurotoxins that kind of narcotize and immobolize the fish eventually leaving it prone to lesions on the fish. That is a — -what we call a pheromone, or it’s an attractant, and other Pfiesteria organisms will come to the same site, they feed and breed.... [Appellees’ Counsel]: Over what period of time did you treat individuals who had contracted disease from Pfiesteria? [Dr. Shoemaker]: I started treating them in the fall of '97....

The number of cases of Pfiesteria illness syndrome were such that there’s a tremendous amount of publicity, or perhaps because of the Baltimore Sun and Washington Post interest, and there was a team of academic physicians appointed by the Governor, in a way, to come down and verify that what I said was actually happening. And I think there was some discussion that perhaps these people just had a