Montgomery Mutual v. Chesson

• Decision Date: 20 September 2006
• Docket Number: No. 1270, September Term, 2005.,1270, September Term, 2005.
• Citation: 907 A.2d 873,170 Md. App. 551
• Parties: MONTGOMERY MUTUAL INSURANCE COMPANY v. Josephine CHESSON et al.
• Court: Court of Special Appeals of Maryland

907 A.2d 873

170 Md. App. 551

MONTGOMERY MUTUAL INSURANCE COMPANY v. Josephine CHESSON et al.

No. 1270, September Term, 2005.

Court of Special Appeals of Maryland.

September 20, 2006.

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

Gerald F. Gay (Arnold, Sevel & Gay, PA, on the brief), Baltimore, for Appellee.

Panel: DAVIS, JAMES R. EYLER, and SHARER, JJ.

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 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 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.

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.

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 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...