State High Court Rejects Mold Expert Opinion

Here's an interesting expert analysis that arises in the less common Frye context.  In Chesson v. Montgomery Mut. Ins. Co., No. 97 (Md., 9/24/13), the Maryland high court affirmed the exclusion of an expert's methodology for linking alleged mold exposure and the plaintiffs' illness; among other things, the approach failed to take into account the level of mold exposure plaintiffs experienced.

The case at hand originated in workers’ compensation claims filed by six employees of the Baltimore Washington Conference of the United Methodist Church. The employees claimed that they had sustained physical injury, specifically neurocognitive and musculoskeletal symptoms, as a result of exposure to mold in the Baltimore Washington Conference’s office. To prove causation, the employees proffered Dr. Ritchie Shoemaker as their expert. Montgomery Mutual, however,
sought to exclude Dr. Shoemaker under Frye (called Reed in this state), arguing that his methodology to determine causation was not generally accepted in the relevant scientific community.

After some procedural events, the lower court eventually held a Frye-Reed hearing, in which the judge considered whether the relevant scientific community generally accepted as reliable and
valid Dr. Shoemaker’s methodologies and theory that identified mold exposure as the cause
for the neurocognitive and musculoskeletal symptoms allegedly suffered by the employees.  At the hearing, Dr. Shoemaker testified that the indoor air of a water-damaged building known to contain mold caused neurocognitive and muscuoloskeletal symptoms. He based his opinion on something he called his “Repetitive Exposure Protocol,” in which he would identify the presence of mold in the building, through visual identification of mold, detecting a musty smell, or lab testing of a sample, such as a piece of drywall. The individual at issue would then be removed from the subject building and, for two weeks, receive a treatment to relieve the symptoms allegedly related to mold exposure, and then be returned to the subject building for three days, during which, he
opined, the individual would report that the symptoms had redeveloped.

The trial court allowed the testimony but the Court of Appeals held that Dr. Shoemaker’s testimony was not admissible under Frye-Reed, reasoning that his methodology was flawed and not generally accepted because it failed to account for the levels of mold exposure. The Court, moreover, concluded that based on an examination of relevant scientific journal articles that the scientific community remained uncertain as to Dr. Shoemaker’s techniques and conclusions.  The plaintiffs appealed.

The high court noted that in Maryland when an expert opinion is offered to support the existence of new or novel scientific theory or methodology, “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, 368 (1978), citing Frye v. United States, 293 F. 1013, 1014 (1923). The general acceptance test imposes a significant gate-keeping role on the judge to determine whether a scientific theory or methodology should be admitted for consideration by jury.  Moreover, validity and reliability are the linchpins of  the scientific method: validity, having been defined as the extent to which something measures what it purports to measure, and reliability, characterized as the ability of a measure to produce the same result each time it is applied to the same thing.

The court stressed that on cross-examination, Dr. Shoemaker admitted that he did not test any of the buildings, either the Baltimore Washington Conference’s office or any others in which an
individual resided or worked who underwent his “Repetitive Exposure Protocol,” to determine the level of mold exposure that an individual working or residing therein would have experienced. According to Dr. Shoemaker, the mere "identification" of mold in a building, even by the presence of a musty smell alone, was sufficient to conclude that an individual residing or working in that building inhaled mold that caused neurocognitive and musculoskeletal symptoms, without any further assessment of not only the level of mold, but also what other chemicals the plaintiff may have been exposed to.

Defendants called a Dr. Cheung who testified that Dr. Shoemaker’s “Repetitive Exposure Protocol”
was not generally accepted as valid in the relevant scientific community, not only because it was experimental as well as controversial in its “second tier” of biological markers approach and use of treatment drugs in an off-label fashion, as well as in its failure to account for stress levels in individuals, but also primarily because it failed to measure the levels of mold exposures by individuals in the water-damaged buildings. Mold exposure can be low to medium to high, he testified, and should include consideration of the pathways that mold must travel to reach an individual, such as the building’s ventilation system, walls, or ceiling, as well as the pressure or air flow of the building.  Dr. Cheung also testified to a survey that he had commissioned relative to whether Dr. Shoemaker’s diagnosis was generally accepted and found it was not.  Most importantly, Dr. Cheung testified regarding the absence of any study utilizing the scientific method that confirmed the relationship of mold exposure to neurocognitive and musculoskeletal symptoms.

The court also noted that other jurisdictions have determined that Dr. Shoemaker’s theory, based on his “Repetitive Exposure Protocol,” is neither generally accepted nor reliable. See Young v. Burton, 567 F. Supp. 2d 121, 130-31 (D.D.C. 2008) (also listing Virginia, Florida, and Alabama as jurisdictions rejecting Dr. Shoemaker’s theory).

The Court of Appeals agreed with the intermediate appeals court, finding that the expert's failure to account for the level of mold exposure was a fundamental flaw in his methodology .Without an expert's admissible opinion on causation, plaintiffs were unable to prove that mold in the walls of their office building was the cause of their neurocognitive and musculoskeletal symptoms.

 

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