Montgomery Mutual Insurance v. Chesson

RAKER, J. This appeal arises from a final judgment in a workers’ compensation matter in which a jury in the Circuit Court for Howard County returned a verdict in favor of respondents and against the Baltimore Washington Conference of the United Methodist Church and Montgomery Mutual Insurance Company. Respondents claimed that they each had sustained an accidental injury or occupational disease, known as “sick building syndrome,” 1 arising out of and in the course of their ³¹⁸ employment, due to exposure to toxic mold. The issue presented in this case is whether the Circuit Court abused its discretion by not holding a Frye-Reed hearing pursuant to our holding in Reed v. State, 283 Md. 374 , 391 A.2d 364 (1978), to determine the admissibility of the testimony of respondents’ expert, Ritchie Shoemaker, M.D., and specifically, to decide whether the doctor’s methodologies used for diagnosis and theories regarding the causal connection between mold exposure and certain human health effects are generally accepted in the scientific community for that purpose. We shall hold that the expert’s testimony should have been the subject of a Frye-Reed hearing.

I. Respondents, Josephine Chesson, Martha Knight, Carole Silberhorn, Linda Gamble, Kenneth Lyons, and Connie Collins, were employees of the Baltimore Washington Conference of the United Methodist Church, and worked at the Church’s offices located at 9720 Patuxent Woods Parkway, Columbia, Maryland. On November 18, 2002, several employees working in the office building noticed a foul odor emanating from the walls. A maintenance crew broke through an interior wall and discovered two types of mold, Aspergillus and Stachybotrys. Respondents each filed a claim with the Maryland Worker’s Compensation Commission, alleging that they had sustained an accidental injury or occupational disease known as sick building syndrome due to mold exposure on November 18, 2002.

See Md.Code (1999, 2006 Cum.Supp.) § 9-101 et seq. of the Labor and Employment Article. The Workers’ Compensation Commission held a hearing and disallowed two of respondents’ claims and awarded partial compensation to the remaining respondents after finding accidental injury or occupational disease due to mold exposure. 2 Each respondent ³¹⁹ filed a petition for judicial review in the Circuit Court for Howard County, see Md.Code (1999, 2006 Cum.Supp.) § 9-737 et seq. of the Labor and Employment Article, and a joint motion to consolidate the claims. The Circuit Court consolidated the claims. 3 Each respondent had been examined and treated by Dr. Ritchie Shoemaker, a licensed medical doctor and board-certified physician in the field of family medicine. Prior to trial, petitioner filed a motion in limine seeking to exclude the testimony of Dr. Shoemaker on the grounds that his theories and methodologies for diagnosis regarding a causal connection between mold exposure and certain human health effects had not been generally accepted within the relevant scientific community.

Petitioner requested a Frye-Reed hearing, addressing the court as follows: “[DEFENSE COUNSEL]: The diagnosis of sick building syndrome, or bio toxic illness, assumes the causal relationship of the symptoms, to the bio toxic illness. It’s — the diagnosis in itself, of the bio toxic illness, is that this particular illness exists, as a legitimate illness. Unfortunately, the ICD-9 classifications, which lists all diagnosis, for all illnesses, do not recognize bio toxic illness as an illness. It’s also not recognized by the CDC, the Institute of Medicine, and NIOSH, The National Institute of Occupational Safety and Health.

Arrival at that diagnosis of bio toxic illness, uses techniques not generally accepted by the scientific community, which is the Frye-Reed test. Dr. Shoemaker focuses on a constellation of symptoms as being caused by bio toxic illness. This constellation of symptoms is not accepted as an illness from mold. The ³²⁰ fundamental principles of differential diagnosis require that you rule out other causes of illnesses from symptoms that are presented from the patient.

The first thing you would do is rule out known illnesses, not an illness that you happen to have made up yourself, and that is not accepted by the ICD-9 classifications. For example, the symptoms presented by these claimants could include: allergic rhinitis, sinusitis, stress at the belief of being ill; those illnesses were not even considered by Dr. Shoemaker. He took the constellation— THE COURT: Excuse me, wouldn’t that go to the weight, rather than the admissibility of his opinion? [DEFENSE COUNSEL]: No, because you must base your opinion on accepted medical and scientific data. Using a constellation of symptoms, and concluding that it’s sick building syndrome, is not a generally accepted method for diagnosis.

The generally accepted method for diagnosis is to rule out different illnesses that are accepted as illnesses. In addition, accepting a patient’s prior medical history just by having them tell you, -without verifying the accuracy of the information, is not a generally accepted form of diagnosis. Dr. Shoemaker, by his own admission, reviewed no medical evidence, whatsoever, concerning prior illnesses. In addition, he prescribes a drug, Cholestyramine, for the treatment of bio toxic illness, and the FDA has not approved Cholestyramine for the treatment of bio toxic illness because, of course, they don’t recognize bio toxic illness as a legitimate illness.

The modifying of the accepted diagnostic tools, also comes under a Frye-Reed evaluation, and that is exactly what Dr. Shoemaker is doing. He’s saying, look there’s five thousand tests of the visual-contrast sensitivity test. There’s, you know, four thousand studies on Cholestyramine, but what he is not telling you, is that those studies are being modified for his use; his use is unique, and new, it’s a new scientific technique and it should be looked at under the Frye-Reed test. ³²¹ When we look at these issues with diagnosis and treatment, we haven’t even gotten yet to his expression of ‘causal relationship.’ If he can separate out where he has diagnosis, and then goes to ‘causal relationship,’ I’d sure like to see it, because by the time these people even got to him, he had already diagnosed sick building syndrome. He sent out the questionnaires, they filled them out, and sent them back, or brought them back and, by that time, he found sick building syndrome.

He didn’t do any differential diagnosis, even though he says he did. He didn’t do any testing that is accepted as — by the general scientific community for mold related illnesses, such as: allergy testing, spirometry testing — he decides that blood work is the way to go with mold. That visual-contrast sensitivity tests, which are used to test the vision of pilots, is what is used for mold. That — those techniques, though they may be established for other causes, have been modified for Dr. Shoemaker’s purposes and, therefore, they should be under the Frye-Reed evaluation.

His tests, and his methods are completely experimental. He is the self-proclaimed forerunner in this area of law. He admits that he’s the one that developed this— The problem with Dr. Shoemaker’s experience is it’s all anecdotal. The anecdotal evidence that he sees from treating people with Physteria and from what he sees— THE COURT: Physteria were the fish down in Pocomoke City, or the Pocomoke River, or something? [DEFENSE COUNSEL]: That’s corrects THE COURT: — or the Chesapeake Bay? [DEFENSE COUNSEL]: That’s correct— THE COURT: Yeah— [DEFENSE COUNSEL]: — that’s right.

And he uses that anecdotal evidence and anecdotal evidence from his treatment of mold patients. The problem with that is, it assumes that the test he uses to get to those diagnoses are, ³²² generally accepted and they’re not the generally accepted way to diagnose a mold related illness, which is to look at the prior medical records, physically look at them, see what these people have been experiencing prior to the mold exposure. It’s to do allergy testing, spirometry testing, and then come up with a differential diagnosis by excluding known illnesses, not by automatically assuming that this constellation of symptoms means sick building syndrome. * * * THE COURT: Well, if I were going to — before I could do what you’re asking me to do, if indeed, this would have to be submitted to the Frye-Reed analysis, then would I not have to have a Frye-Reed hearing, as opposed to just say, ‘oh, well, I agree with you,’ wouldn’t I be entitled to have a Frye-Reed hearing? [DEFENSE COUNSEL]: We can bring our experts in, Your Honor, and Dr. Shoemaker is already on video.” Respondents maintained that because Dr. Shoemaker’s opinion was a medical opinion, offered as that of a general practitioner and treating physician, the testimony was admissible and not the proper subject of a Frye-Reed hearing. The Circuit Court agreed with respondents and denied petitioner’s request for a Frye-Reed hearing.

The court reasoned as follows: “I’m prepared to rule on the motion in limine, and I’m satisfied, from the evidence. 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 then goes on and he takes a history, and — of the patients, and he physically examines them, and ³²³ then does testing, and the particular tests that he uses are different various and sundry blood tests. 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 the Physteria 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 this 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 am going to deny the motion in limine. ” The case proceeded to trial and Dr. Shoemaker’s testimony was admitted on behalf of respondents. The jury returned verdicts in favor of each respondent, finding a causal relationship between mold exposure and certain illnesses claimed by respondents. 4 ³²⁴ Petitioner noted a timely appeal to the Court of Special Appeals. Before that court, petitioner raised the argument he raises before this Court: that the Circuit Court erred when it accepted Dr. Shoemaker as an expert witness without first holding a Frye-Reed hearing to determine whether his medical opinions and methods of diagnosing patients are generally accepted within the scientific community.

The intermediate appellate court rejected petitioner’s argument, stating as follows: “As in the case sub judice, we have previously held that expert opinions concerning the cause or origin of an individual’s condition are not subject to Frye-Reed analysis. In Myers v. Celotex Corp., 88 Md.App. 442, 460 , 594 A.2d 1248 (1991), cert, denied, Fibreboard Corp. v. Myers, 325 Md. 249 , 600 A.2d 418 (1992), we reversed the trial court’s exclusion of appellant’s expert causation opinion regarding asbestos exposure and cancer. In distinguishing the facts of Myers from a case that would invoke a Frye-Reed analysis, we explained that the fact that ‘exposure to asbestos may cause cancer ... is not a novel or controversial assertion, nor is it a conclusion personal to Dr. Schepers.’ Id. at 458, 594 A.2d 1248 . We also stressed that the Reed holding had ‘not been extended to medical opinion evidence which [was] not presented as a scientific test [,] the results of which were controlled by inexorable, physical laws.’ Id. at 458-59 , 391 A.2d 364 (citation and quotation marks omitted).

We revisited Myers in the case of CSX Transp., Inc. v. Miller, 159 Md.App. 123 , 858 A.2d 1025 (2004), cert. granted, 384 Md. 581 , 865 A.2d 589 (2005), cert, dismissed, 387 Md. 351 , 875 A.2d 702 (2005), in which we affirmed the trial court’s acceptance of expert medical opinion testimony. Referring to our opinion in Myers, Judge Moylan reiterated: A doctor’s opinion as to the etiology of his patient’s arthritis is simply not the type of thing contemplated by the phrase ‘new and novel scientific technique [required ³²⁵ by the Frye-Reed test].’ What is contemplated are new, and arguably questionable, techniques such as lie detector tests, breathalyzer tests, paraffin tests, DNA identification, voiceprint identification, as in the Reed case itself, and the use of polarized light microscopy to identify asbestos fibers ... Id. at 187, 858 A.2d 1025 .” Montgomery Mutual v. Chesson, 170 Md.App. 551, 569-70 , 907 A.2d 873, 884 (2006). The Court of Special Appeals concluded that a Frye-Reed hearing was not necessary to address Dr. Shoemaker’s theory of causation because that was part of his medical diagnosis, and that the Circuit Court committed no error in denying the motion in limine because Dr. Shoemaker utilized medical tests that are generally accepted in the scientific community.

Id. at 560 , 907 A.2d at 878 . Montgomery Mutual Insurance Company filed a petition for writ of certiorari before this Court. We granted that petition to address the following question: “Whether the Court of Special Appeals erred in holding that Dr. Ritchie Shoemaker’s own, unsupported, testimony about his practices and expertise renders his opinions concerning mold related illnesses admissible without the necessity of a Frye-Reed analysis.” Montgomery Mut. v. Chesson, 396 Md. 12 , 912 A.2d 648 (2006).

II

Before this Court, petitioner argues that the Circuit Court should have held a Frye-Reed hearing to determine the admissibility of Dr. Shoemaker’s testimony. Petitioner states that under a proper Frye-Reed analysis, Dr. Shoemaker’s testimony should have been excluded from trial because his methodologies, techniques, and tests used to formulate his opinions regarding mold exposure and sick building syndrome ³²⁶ have not been generally accepted in the scientific community. 5 Petitioner argues that it was, at a very minimum, entitled to demonstrate at an evidentiary hearing before the Circuit Court the basis for its argument that Dr. Shoemaker should not have been permitted to testify. Respondents contend that Frye-Reed applies only to the appropriateness of new scientific techniques, and that there was no need for a Frye-Reed hearing in this case because Dr. Shoemaker based his diagnosis on techniques which are generally accepted in the scientific community. Respondents argue that Dr. Shoemaker’s medical opinion concerning causa tion — i.e., that exposure to mold caused sick building syndrome in respondents-was not a proper topic for a Frye-Reed hearing.

III

Maryland Rule 5-702 addresses the testimony of expert witnesses at trial. The Rule provides as follows: “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 ³²⁷ (3) whether a sufficient factual basis exists to support the expert testimony.” A trial judge has wide latitude in determining whether expert testimony is sufficiently reliable to be admitted into evidence, and his sound discretion will not be disturbed on appeal unless the decision to admit the expert testimony was clearly erroneous or constituted an abuse of discretion. See Wilson v. State, 370 Md. 191, 200 , 803 A.2d 1034, 1039 (2002); Massie v. State, 349 Md. 834, 850-51 , 709 A.2d 1316, 1324 (1998).

Maryland adheres to the standard set forth in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), for determining the admissibility of scientific evidence and expert scientific testimony. Reed, 283 Md. at 389 , 391 A.2d at 372 (adopting the Frye standard). Under the Fryer-Reed test, a party must establish first that any novel scientific method is reliable and accepted generally in the scientific community before the court will admit expert testimony based upon the application of the questioned scientific technique. Wilson, 370 Md. at 201 , 803 A.2d at 1039 .

A trial court may take judicial notice of the reliability of scientific techniques and methodologies that are widely accepted within the scientific community. Reed, 283 Md. at 380 , 391 A.2d at 367 . A trial court also may take notice that certain scientific theories are viewed as unreliable, bogus, or experimental. Id.

However, when it is unclear whether the scientific community accepts the validity of a novel scientific theory or methodology, we have noted that before testimony based on the questioned technique may be admitted into evidence, the reliability must be demonstrated. Wilson, 370 Md. at 201 , 803 A.2d at 1039-40 . While the most common practice will include witness testimony, a court may take judicial notice of journal articles from reliable sources and other publications which may shed light on the degree of acceptance vel non by recognized experts of a particular process or view. Reed, 283 Md. at 380 , 391 A.2d at 367 .

The opinion of an “expert” witness should be admitted only if the court finds that “the basis of the opinion is generally accepted as reliable within the expert’s particular scientific field.” Wilson, 370 Md. at 201 , 803 A.2d at 1040 . ³²⁸ Where evidence is subject to challenge under Frye-Reed, it is the better practice for a court to address the issue pre-trial and out of the presence of the jury. Clemons v. State, 392 Md. 339 , 347-48 n. 6, 896 A.2d 1059 , 1064 n. 6 (2006). Frye-Reed hearings are best held before trial in order to preclude jury members from considering irrelevant evidence and to ensure that the verdict is derived from evidence which is before the jury properly. Id. at 348 n. 6, 896 A.2d at 1064 n. 6.

As we noted in Reed, “Frye was deliberately intended to interpose a substantial obstacle to the unrestrained admission of evidence based upon new scientific principles.” Reed, 283 Md. at 386 , 391 A.2d at 370 (quoting People v. Kelly, 17 Cal.3d 24 , 130 Cal.Rptr. 144 , 549 P.2d 1240, 1245 (1976)). In addition, Frye-Reed generally involves matters collateral to the substantive issues at trial, and for that reason alone is better resolved outside of the presence of the jury. Clemons, 392 Md. at 348 n. 6, 896 A.2d at 1064 n. 6. In the case sub judice, the Court of Special Appeals held that it was unnecessary for the Circuit Court to hold a Frye-Reed hearing, reasoning (1) that Dr. Shoemaker’s medical diagnosis was not a proper subject for Frye-Reed analysis, and (2) that the tests Dr. Shoemaker used in reaching his medical diagnoses are generally accepted in the medical community, and are therefore not subject to Frye-Reed analysis.

Montgomery Mutual, 170 Md.App. at 560 , 907 A.2d at 878 . We disagree and hold that, based on this record, the Circuit Court should have held a Frye-Reed hearing to determine whether the medical community generally accepts the theory that mold exposure causes the illnesses that respondents claimed to have suffered, and the propriety of the tests Dr. Shoemaker employed to reach his medical conclusions. This Court has emphasized repeatedly that Frye-Reed is meant to apply to evidence based on scientific opinion. See Clemons, 392 Md. at 364 , 896 A.2d at 1073 ; Wilson, 370 Md. at 201 , 803 A.2d at 1040 ; Reed, 283 Md. at 381 , 391 A.2d at 368 .

The proper test for determining admissibility under Frye-Reed “is whether the basis of the opinion is generally accepted as reliable within the expert’s particular scientific