, Appellate Ruling Shoemaker Proof of Causation, Mycotoxicosis

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I got a lot of requests from you all for the docs of this case. I am traveling and don't have my files with me. Be home Tues. Will mail them out then. In the meantime, here is 's publishing of the matter. Or, there is a phone number at the bottom of the article that one can call to get the docs.

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COURTROOM NEWS

Date: 26 September 2006

Court Allows Shoemaker Testimony without Frye Hearing

ANNAPOLIS, Md. — land’s intermediate appellate court held Sept. 20 that diagnostic and treatment methods used by mold expert Dr. Ritchie Shoemaker were sufficiently accepted that they need not be subject to a Frye hearing for admissibility. Montgomery Mutual Insurance Co. v. Chesson, et al., No. 1270 (Md. Ct. Sp. App.).

Ruling in a workers’ compensation case, the land Court of Special Appeals affirmed a trial court order allowing Dr. Shoemaker’s testimony that several church workers sustained sick-building syndrome from workplace exposure to mold.

phine Chesson and five other employees of the Baltimore Washington Conference of the United Methodist Church in Columbia, Md., sought benefits after mold was discovered in a wall cavity at their offices in November 2002.

The Workers’ Compensation Commission found for the church and its insurer, Montgomery Mutual Insurance Co., on three claims and awarded partial benefits to the three other claimants.

The six workers petitioned for consolidation and review by the County Circuit Court and the petition was granted.

Montgomery Mutual moved to exclude the testimony of Dr. Shoemaker of Pokomoke, Md., who had examined each claimant and diagnosed sick-building syndrome caused by exposure to mold.

Montgomery Mutual argued that Shoemaker’s methods of diagnosing and treating mold exposure are not generally accepted by the scientific community and should be excluded under land’s Frye- analysis (Frye v. United States, 293 F. 1013, 1014 [D.C. Cir. 1923]; v. State, 283 Md. 374, 381 [1978]).

The claimants argued that a Frye- hearing was unnecessary as Shoemaker would testify as a treating physician.

County Circuit Judge Moylan agreed, and declined to order an admissibility hearing.

Judge Moylan explained that Dr. Shoemaker testified that he takes patients’ history, conducts examinations and conducts blood and other tests before making a diagnosis. Those procedures are not uncommon, the judge said.

Judge Moylan ruled, according to a transcript, '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- 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.'

At trial, the jury ruled for all six appellees, finding they suffered compensable accidental injuries from mold exposure.

Montgomery Mutual appealed the verdict and Judge Moylan’s decision to allow Dr. Shoemaker to testify to land’s Court of Special Appeals, which affirmed.

'Because of the nature of the proffered scientific evidence in this case, we reject appellant’s contention that the court erred or abused its discretion by not applying the Frye- test to the testimony of Dr. Shoemaker,' the Court of Special Appeals held.

The appellate court quoted extensively from Shoemaker’s deposition testimony about his methods of diagnosis, particularly his treatment of patients suffering from pfisteria in the 1990s, and his method of treating patients believed to have been exposed to biotoxins.

Dr. Shoemaker testified that the tests he conducts for hormone and other abnormalities arose 'from basic science published,' the Court of Special Appeals said, quoting Shoemaker.

'In reviewing and comparing the methodologies, it is evident that Dr. Shoemaker employs different tests and strategies to treat the medical conditions of his patients, in general and, appellees, in particular,' the Court of Special Appeals said.

'We agree with the court, however, that there are certain tests that Dr. Shoemaker performs that are not so unorthodox that would warrant subjecting them to a Frye- analysis; e.g., patients fill out forms concerning medical history, the doctor runs several blood tests and performs physical examinations,' the court said.

The Court of Special Appeals concluded that while Dr. Shoemaker’s methods may differ in part from many of his colleagues, 't is clear from Dr. Shoemaker’s testimony that these practices have garnered acceptance among peers in this field, which would serve as support for the court’s acceptance of him as an expert and bolster the conclusion that he could render opinions as to the cause of the illnesses sustained by appellees.'

'Significantly, as we noted in Myers,' the Court of Special Appeals held, citing Myers v. Celotex Corp. (88 Md. App. 442, 460 [1991]), cert. denied, Fibreboard Corp. v. Myers, 325 Md. 249 [1992]), 'the finder of fact would have been free to discredit Dr. Shoemaker’s testimony in light of the testimony of other experts regarding their different methods and opposing views. The fact that there were opposing viewpoints based upon other generally accepted methodologies, however, does not lead to the conclusion that Dr. Shoemaker’s testimony should have been excluded.'

Gerald F. Gay of Arnold, Sevel & Gay in Baltimore is counsel for the Chesson plaintiffs-appellees.

Montgomery Mutual Insurance Co. is represented by Cursom.

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Opinion Ref# MOL-0610-01

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