Frederick v. Shankle

• Citation: 136 Md. App. 339,765 A.2d 1008
• Decision Date: 31 January 2001
• Docket Number: No. 1281,1281
• Parties: CITY OF FREDERICK, et al. v. Donald W. SHANKLE.
• Court: Court of Special Appeals of Maryland

765 A.2d 1008

136 Md. App. 339

CITY OF FREDERICK, et al. v. Donald W. SHANKLE.

No. 1281, Sept. Term, 1999.

Court of Special Appeals of Maryland.

January 31, 2001.

Michael J. McAuliffe (Quinn, McAuliffe & Rowan on the brief), Rockville, for appellants.

Kenneth M. Berman (Diane K. Poling and Berman, Sobin & Gross, LLP on the brief), Gaithersburg, for appellee.

Argued before MURPHY, C.J., SALMON and THIEME,¹ JJ 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).² 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?

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.³

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 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,⁴ 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.⁵ According to Dr. Wasserman, the six major risk factors⁶ for coronary artery disease are male gender, family 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."⁷

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 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.⁸

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 journals 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.⁹

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 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

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