Maryland Court of Appeals Upholds the Frye-Reed “General Acceptance” Test for Admissibility of Expert Testimony

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The Maryland Court of Appeals issued an opinion on September 24, 2013, in Josephine Chesson, et al. v. Montgomery Mutual Insurance Co., No. 97, 2013 WL 5311126, -- A.3d --- (Md. Sept. 24, 2013) (Chesson III), finding that, under Maryland’s Frye-Reed standard, where there exists continued controversy in the relevant scientific community regarding a scientific theory, an expert’s testimony based on that theory was inadmissible. The Court found that the expert’s technique reflected a dearth of scientific methodology and therefore was “not shown to be generally accepted in the relevant scientific community.”

Specifically, the Court ruled that the continued division in the relevant scientific community relative to any casual connection between the alleged inhalation of mold in a water-damaged building and the development of neurocognitive and musculoskeletal symptoms precluded the expert’s testimony under the “general acceptance” doctrine.

Decisions
The underlying suit was filed by former employees of the Baltimore-Washington Conference of the United Methodist Church, alleging that they had sustained an accidental injury or occupational disease known as “sick building syndrome” as a result of mold exposure in the defendant’s water-damaged building. The Circuit Court of Maryland for Howard County denied Montgomery Mutual’s motion to exclude testimony from plaintiff’s expert, Dr. Richard Shoemaker, without holding a Frye-Reed hearing. The Court of Special Appeals affirmed the trial court’s admission of Dr. Shoemaker’s testimony without a Frye-Reed hearing. On appeal by Montgomery Mutual, the Court of Appeals remanded to the Circuit Court for a Frye-Reed hearing, because “Dr. Shoemaker employs medical tests to reach a conclusion that is not so widely accepted as to be subject to judicial notice of reliability.” Montgomery Mutual Insurance Co. v. Chesson, 399 Md 314, 332, 923 A.2d 939, 949 (2007) (Chesson I).

In the Circuit Court’s subsequent Frye-Reed hearing, Dr. Shoemaker testified about his medical opinions, citing support from his own articles regarding his methodologies and theories, which were collectively referred to as the “Repetitive Exposure Protocol” (REP). Defendant Montgomery Mutual presented controverting evidence from Dr. Hung Cheung, an expert in internal medicine, occupational medicine, environmental medicine, toxicology and indoor air quality. Dr. Cheung testified that the REP was not generally accepted as a valid protocol in the relevant scientific community due to, among other aspects, its experimental approach, its use of drugs in an off-label fashion, its failure to account for stress levels in individuals, and, primarily, because of its failure to measure the actual levels of mold exposure by individuals in the water-damaged building.

The Circuit Court issued a written Findings of Fact, and its Memorandum Opinion and Order held that Dr. Shoemaker’s REP was a “differential diagnosis,” which itself was “reliable” and “properly performed,” and thus within the general acceptance of the relevant scientific community. The Circuit Court held that because Dr. Shoemaker applied his technique to the plaintiffs at issue and found that they contracted the symptoms noted by Dr. Shoemaker as a result of mold exposure, the prior trial verdicts remained intact in favor of the plaintiffs.

The Court of Special Appeals, in an opinion filed in August 2012, however, reversed the decision of the Circuit Court. Montgomery Mutual Insurance Co. v. Chesson, 206 Md. App. 569, 51 A.3d 18 (2012) (Chesson II). The intermediate appellate court in Chesson II concluded that “there existed a continued division in the relevant scientific community relative to any causal connection between inhalation of mold in a water-damaged building and neurocognitive and musculoskeletal symptoms.” The Court of Special Appeals in Chesson II also concluded that “because there are sources that support and oppose Dr. Shoemaker's theories and methodologies, and at least one that recognizes the relevant scientific field is undecided,” it must find that “Dr. Shoemaker's theories and methodologies with regard to exposure to water-damaged buildings, and the human health effects suffered by appellees, are not generally accepted in the relevant scientific community.” The Court of Appeals, in its recent opinion, agreed with the intermediate appellate court and affirmed its decision.

The Maryland Court of Appeals pointed out that in testing the concept of general acceptance in the relevant scientific community, methodology is a key component. Dr. Cheung noted that the primary fundamental flaw in Dr. Shoemaker’s methodology was a failure to account for the actual level of mold exposure in his REP. Even Dr. Shoemaker admitted that his study associating mold exposure in water-damaged buildings to the development of neurocognitive and musculoskeletal symptoms failed to determine exposure to specific agents, thus resulting in a study limitation. The Court also recognized that Dr. Shoemaker stated that “his causal theory linking indoor air of water-damaged buildings with mold and neurocognitive and musculoskeletal symptoms was controversial and not generally accepted.” (Chesson III)

The Court of Appeals also relied on the available scientific literature and the testimony presented at the Frye-Reed hearing to support its opinion. It noted that the literature prior to 2005 indicated, at best, uncertainty regarding the causal link between mold exposure and neurocognitive and musculoskeletal symptoms. This literature addressed, among other things, the issues of the level of mold exposure that could cause respiratory and non-respiratory human health effects and that Dr. Shoemaker’s theory, in particular, remains unverified and not generally accepted within the relevant scientific community. Additionally, the Court pointed out that other jurisdictions that adhere to the more flexible Daubert standard have determined that Dr. Shoemaker’s theory, based on his REP, was neither generally accepted nor reliable. See Young v. Buron, 567 F. Supp. 2d 121, 130–31 (D.D.C. 2008) (also listing Virginia, Florida, and Alabama as jurisdictions rejecting Dr. Shoemaker’s theory).

Analysis
The decision reinforces the standard established in Frye and adopted in Maryland in Reed regarding the admissibility of an expert’s opinion into evidence. In cases where expert opinions are offered, parties seeking to exclude such opinions will be expected to present evidence that, at a minimum, will support the notion that the proffered theory or methodology is not generally accepted by the relevant scientific community to effectively debunk the proffered theories. Trial courts may view Chesson III as an authoritative guide to evaluating the admissibility of an expert’s testimony based on the mere existence of scientific or medical literature stating an opposing proposition. This finding will be particularly relevant in cases where parties seek to introduce expert opinions regarding novel or experimental theories and methodologies that are based primarily on the expert’s own publications.

 

Topics:  Admissibility, Evidence, Expert Testimony, Scientific Research

Published In: Civil Procedure Updates, Labor & Employment Updates, Personal Injury Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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