Montgomery Mut. Ins. Co. v. Chesson

• Decision Date: 29 August 2012
• Docket Number: No. 2454,Sept. Term, 2009.,2454
• Parties: MONTGOMERY MUTUAL INSURANCE COMPANY v. Josephine CHESSON, et al.
• Court: Court of Special Appeals of Maryland

206 Md.App. 569

51 A.3d 18

MONTGOMERY MUTUAL INSURANCE COMPANY

v.Josephine CHESSON, et al.

No. 2454, Sept. Term, 2009.

Court of Special Appeals of Maryland.

Aug. 29, 2012.

Nancy J. Courson (Dirska & Levin, on the brief) Columbia, MD, for appellant.

Gerald F. Gay (Arnold, Sevel & Gay, PA, on the brief) Towson, MD, for appellee.

Panel: EYLER, DEBORAH S., GRAEFF and HOTTEN, JJ.

HOTTEN, J.

At the heart of this case is whether the theories and methodologies of Ritchie Shoemaker, M.D. (“Dr. Shoemaker”) are generally accepted in the relevant scientific community. Namely, we must determine whether the Circuit Court for Howard County was correct in concluding that: (1) the differential diagnosis performed by Dr. Shoemaker was reliable and acceptable to establish general and specific causation, and (2) the differential diagnosis method is generally accepted in the medical community. ¹ For the reasons that follow, we reverse the judgment of the circuit court.

BACKGROUND

Appellees, 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 (“BWCUMC”), located at 9720 Patuxent Woods Parkway, Columbia, Maryland.In late 2002, several employees complained that there was an odor emanating throughout the walls of the facility. A maintenance crew investigated the situation and discovered mold in the walls. Two types of mold were found: Aspergillus and Stachybotrys. As a result of the exposure, each appellee filed a claim against BWCUMC and its insurer, appellant, Montgomery Mutual Insurance Company, with the Maryland Worker's Compensation Commission (“the Commission”). The claims alleged that appellees suffered an accidental injury or occupational disease, known as sick building syndrome, as a result of the exposure. A hearing was held and the Commission disallowed two of appellees' claims and awarded the remaining appellees partial compensation.²

Each appellee noted an appeal and the cases were consolidated. Before trial, appellant filed a motion in limine to preclude the testimony of Dr. Shoemaker. Appellant argued that Dr. Shoemaker's testimony should be excluded because his methodologies and theories regarding the causal nexus between exposure to mold and human health effects were not generally accepted in the relevant scientific community. Recognizing that Dr. Shoemaker was a board certified physician, who devoted a significant portion of his practice to caring for individuals who were exposed to water damaged buildings, the court denied the motion. The court then noted that a Frye–Reed hearing was unnecessary.

The Commission's decisions were subsequently reversed and appellant noted an appeal. Among other things, on appeal, appellant argued that the circuit court committed error by not conducting a Frye–Reed hearing. Montgomery Mut. Ins. Co. v. Chesson, 170 Md.App. 551, 556, 907 A.2d 873 (2006). We held that the court correctly declined to conduct a Frye–Reed hearing because Dr. Shoemaker performed “certain tests” that were “not so unorthodox that would warrant subjecting them to a Frye–Reed analysis....” Id. at 569, 907 A.2d 873. Specifically, we noted that a hearing was unnecessary because “expert opinions concerning the cause or origin of an individual's condition are not subject to Frye–Reed analysis.” Id.

An appeal was noted and a petition for certiorari was granted. See Montgomery Mut. Ins. Co. v. Chesson, 396 Md. 12, 912 A.2d 648 (2006). In reversing our decision, the Court of Appeals held that a Frye–Reed hearing should have been held “to determine whether the medical community generally accepts the theory that mold exposure causes the illnesses that [appellees] claimed to have suffered, and the propriety of the tests Dr. Shoemaker employed to reach his medical conclusions.” Montgomery Mut. Ins. Co. v. Chesson, 399 Md. 314, 328, 923 A.2d 939 (2007). Noting that Dr. Shoemaker's testimony involved more than generally accepted medical opinion and diagnosis, the Court explained that “Dr. Shoemaker employs medical tests to reach a conclusion that is not so widely accepted as to be subject to judicial notice of reliability.” Id. at 332, 923 A.2d 939 (footnote omitted). Indeed, because “Dr. Shoemaker's testimony was based on scientific opinion regarding the causal link between mold exposure and sick building syndrome ...,” the Court of Appeals reasoned that “his theories regarding causation and the tests he employed to diagnose [appellees] were subject to Frye–Reed analysis.” Id. at 329, 923 A.2d 939. Accordingly, the case was remanded for the limited purpose of determining “whether Dr. Shoemaker'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.” Id. at 336, 923 A.2d 939.

At the Frye–Reed hearing, Dr. Shoemaker explained the genesis of his theories and methodologies. Dr. Shoemaker began a rural family practice in Pocomoke City in 1980. Around 1997, some of his patients began developing acute and chronic symptoms from exposure to the Pocomoke River, and tributaries adjacent to the Chesapeake Bay. One of the symptoms, diarrhea, was treated with Cholestyramine, a drug approved by the United States Food and Drug Administration for treatment of elevated cholesterol. Cholestyramine was prescribed because it was commonly used “in primary care medicine to treat secretory diarrhea.” As Dr. Shoemaker expected, the diarrhea reduced; but surprisingly, there was an improvement concerning issues associated with memory, headaches, coughing, and muscle aches. Based on this, Dr. Shoemaker published a paper in the Maryland Medical Journal reviewing other cases in which patients suffered memory loss, cognitive impairments, headaches, rashes, abdominal pain, diarrhea,redness of the eyes, and bronchial spasms that were caused by exposure to the Pocomoke River.

Soon thereafter, the Maryland Department of Health and Mental Hygiene appointed a committee to examine some of Dr. Shoemaker's patients. The Center for Disease Control Prevention (“CDC”) worked with the committee and developed a case definition for the illness: Possible Estuary–Associated Syndrome (“PEAS”).³ In diagnosing patients that purportedly had PEAS, Dr. Shoemaker would review possible exposure, consider factors that could contribute to potential physical and cognitive issues, conduct a physical examination, order medical testing, and thereafter, develop a differential diagnosis.

In 1998, Kenneth Hudnell, Ph.D., published an article that explored the benefits of using visual contrast sensitivity testing as a biomarker for PEAS. Dr. Shoemaker started using the testing soon thereafter. According to Dr. Shoemaker, the test results indicated that there were distinguishable markers between people exposed to the Pocomoke River and those who were not. At this point, realizing that he was treating patients who were not exposed to pfiesteria, dinoflagellates, or algal blooms, Dr. Shoemaker believed that his patients must have been exposed to water damaged buildings that contained visible mold.

In treating the patients who were exposed to water damaged buildings, Dr. Shoemaker would initially remove samples of visible mold from a person's workplace or residence. Then he would remove the patient from the exposure and prescribe Cholestyramine. The person would remain on Cholestyramine and away from his or her workplace or residence for approximately two weeks. If the symptoms subsided, Dr. Shoemaker would remove the patient from Cholestyramine and instruct him or her to stay away from the exposure. The patient would then be evaluated approximately two to three days later. Assuming the patient was not exhibiting the previous symptoms, the patient, again, would be exposed to the mold. This exposure would occur without Cholestyramine being prescribed. If the symptoms arose again, the patient would be retreated with Cholestyramine.

Not long after, Dr. Shoemaker added blood tests to review whether the treatment was working. After that, he created a two-tiered case definition. ⁴ To satisfy the first tier, the following had to occur: (1) a patient had a potential for exposure to water damaged buildings, (2) there was the “presence of multiple health symptoms for multiple health systems,” and (3) confounders were absent (i.e. untreated or uncontrolled medical conditions). If a patient satisfied these requirements, the results from the blood and visual contrast sensitivity tests would be reviewed to determine whether three of the following were present: (1) one of fifty-four kinds of immune response genotypes known as HLA, (2) reduced levels of melancyte stimulating hormone (“MSH”), (3) elevated levels of matrix metalproteinase–9 (“MMP9”), (4) deficits in visual contrast sensitivity, (5) dysregulation of ACTH and cortisol, and (6) dysregulation of ADH and osmolality.

According to Dr. Shoemaker, HLA is inspected because it is a genetic measure that reviews immune response genes that “help turn down innate immunity following exposure ....” When “HLA is working, ... innate immune re-signals get converted into antibodies that then protect [a person]....” Dr. Shoemaker next explained that the level of MSH is analyzed because it is a hormone that regulates innate immunity in the body. According to him, MSH deficiency is generally present in individuals exposed to water damaged buildings because innate immune responses are not being properly regulated. Dr. Shoemaker thereafter noted that levels of MMP9 are reviewed because “MMP9 looks directly at a unified presentation of a kind of innate immune element called a cytokine....” As for the visual contrast sensitivity test, Dr. Shoemaker explained that this test is used because its results illustrate “inflammatory changes that cause reduction of blood flow in small blood vessels...