E-Alert Case Updates

Expert Testimony That Mold Causes Neurocognitive and Musculoskeletal Injuries Inadmissible

Chesson v. Montgomery Mut. Ins. Co.
97 SEPT.TERM 2012, 2013 WL 5311126 (Md. Sept. 24, 2013)
by Jhanelle Graham, Law Clerk
Semmes, Bowen & Semmes (www.semmes.com)

Plaintiffs, employees for the Baltimore Washington Conference of the United Methodist Church, filed workers’ compensation claims for physical injuries, including “neurocognitive and musculoskeletal symptoms, as a result of exposure to mold in the Baltimore Washington Conference’s office.” Plaintiffs offered the testimony of Dr. Ritchie Shoemaker, a family physician and self-professed expert on mold, on the issue of causation. Montgomery Mutual, the Defendant, moved to exclude Dr. Shoemaker’s testimony on the basis that it was not generally accepted by the medical and scientific community and, therefore, inadmissible under the standard set by Frye-Reed. The trial Court denied the motion, without holding a Frye-Reed hearing, and judgment was entered against Defendant after a trial on the merits in which Dr. Shoemaker’s testimony was critical.

In Montgomery Mut. Ins. Co. v. Chesson, 399 Md. 314, 318, 923 A.2d 939, 941 (2007), the Court of Appeals ordered that the case be remanded for the purpose of conducting the hearing. The trial Court conducted the Frye-Reed hearing on Dr. Shoemaker’s methodology and theory of causation, and held that “Dr. Shoemaker’s ‘Repetitive Exposure Protocol’ was a differential diagnosis, which itself was ‘reliable’ and ‘properly performed,’ bringing it within general acceptance of the relevant scientific community.” Defendant appealed the holding. The Court of Special Appeals overturned the ruling, and the Court of Appeals granted certiorari.

The Court began with an overview of Maryland’s Frye-Reed standard for the admissibility of testimony presenting “novel” questions of science. The standard’s test requires, in part, that the proffered theory be generally accepted by the scientific community. “A trial judge also cannot admit expert testimony based on scientific methodology without consideration of whether the analysis itself is flawed and posits an ‘analytical gap.’”

The Court then reviewed the Frye-Reed hearing testimony of both Dr. Shoemaker, and the Defense’s expert, Dr. Hung Cheung, who was qualified as an expert in internal medicine, occupational medicine, environmental medicine, toxicology, and indoor air quality. Dr. Shoemaker testified regarding his “Repetitive Exposure Protocol” – the differential diagnosis process that he developed, which supported his theory. Dr. Shoemaker noted that prior to 2005 his process and theory were controversial, but claimed that after 2005 they gained acceptance in the relevant scientific community. Conversely, Dr. Cheung testified that the medical literature clearly showed that Dr. Shoemaker’s process and theory were never generally accepted, and that the process contained critical analytical gaps. Specifically, Dr. Shoemaker’s process failed to take into account the level of mold exposure in diagnosing and treating mold-related health problems, which was necessary “as part of a careful environmental and medical history.”

The Court further noted that numerous other jurisdictions had excluded Dr. Shoemaker’s testimony, including the District Court for the District of Columbia, Virginia, Florida, and Alabama. The Court then held that “Dr. Shoemaker’s technique, which reflects a dearth of scientific methodology, as well as his causal theory, therefore, are not shown to be generally accepted in the relevant scientific community.” The Court affirmed the judgment of the Court of Special Appeals reversing the trial Court’s holding, effectively vacating the original judgments rendered in Plaintiffs’ favor.