Mold Columns: Court Allows Shoemaker Differential Diagnosis, Toxicity, Etc

[Guest guest]

____________________________________

COURTROOM NEWS

(http://www.harrismartin.com/GenerateArticlePDF.cfm?articleid=11535)

(http://www.harrismartin.com/recommended.cfm?articleid=11535)

____________________________________

Date: 17 November 2009 Court Allows Shoemaker’s Differential

Diagnosis Testimony

Related Document: _Opinion - MOL-00911-12_

(http://www.harrismartin.com/pdfs/MOL-0911-12.pdf) (PDF format)

“This court declines to follow the inflexible rationale of and the

toxicological approach and recognizes that an expert opinion may be valid

without detailed dose-response information,†Judge Moylan concluded. “

Instead, this court finds that ‘precise information concerning the exposure

necessary to cause specific harm to humans and exact details pertaining to the

plaintiff’s exposure are beneficial, [but] such evidence is not always

available, or necessary, to demonstrate that a substance is toxic to humans . .

.. .’ (Westbury v. Gislaved Gummi AB, 178 F.3d 257, 264 [4th Cir. 1999]).â€

Judge Moylan also noted that “No United States government agency or

organization has yet established a standard to determine a safe range or a

dangerous range of indoor mold levels. In Canada, there is no standard either,

yet the established practice is that if there is visible mold, mold odors, or

if the occupants are getting sick, then the premises should be vacated and

remediation undertaken.â€

Under the Frye- standard, the judge explained, “the trial court should

admit the opinion of an expert witness ‘only if the court finds that “the

basis of the opinion is generally accepted as reliable within the expert’s

particular scientific fieldâ€â€™â€ ( v. State, 370 Md. 191, 201, 803

A.2d 1034, 1039 [2001]).

The admissibility of experts to prove causation in cases of water-damaged

buildings is one of first impression in land, and decisions from other

jurisdictions are instructive, Judge Moylan said.

The judge cited Young v. Burton (567 F. Supp. 2d 121 [D.D.C. 2008]) as

illustrative of the line of cases that follow the 5th Circuit’s holding in

v. Ashland Chemical (151 F.3d 269 [5th Cir. 1998]) that the proper

method of proving causation employed “the standard methods of toxicology, and

that gives little weight to “the temporal connection between exposure to

chemicals and an onset of symptoms, standing alone . . . .â€

The Young court excluded Shoemaker’s testimony after concluding that he

did not utilize the scientifically accepted dose-response curve and, 'did not

follow his own normal diagnostic methodology when examining and treating

the plaintiffs.'

Judge Moylan said that “even and its progeny contemplate the

possibility that some circumstances may justify departure from proof through

scientific studies, despite the testimony by Cheung that general causation must

be proven to a 95 percent level of probability.

“There is little support in the case law, even under the toxicological

approach to support such a rigid standard for admissibility,†and even

and its progeny allowed for the possibility that there may be some

justification for deviation from that method, the judge continued.

Saying that he found Cheung’s argument, and the argument for the

toxicological approach, flawed, Judge Moylan said that “[e]ven if scientific

methods

are used, an objective and accurate mold assessment is very difficult to

obtain, and is rarely used without subjective complaints.â€

The judge cited favorably a “Clinical-Medical Approach†adopted by the

4th Circuit in which courts allow a clinical physician “to express an

opinion, derived from differential diagnosis, that a particular toxic substance

caused the patient’s symptoms.â€

TOWSON, Md. — A land trial court has issued an order allowing

testimony on differential diagnosis methods by mold expert Ritchie Shoemaker,

whose

findings on cognitive and musculoskeletal illnesses were challenged on

appeal in a workers’ compensation case. Chesson v. Baltimore Washington

Conference, No. 13-C-03-056903 (Md. Cir. Ct., Cty.).

The 33-page order by Judge W. Moylan of the Circuit Court for

County (Md.) came Nov. 9 in a case remanded from land’s highest

court

for a Frye hearing on the admissibility of testimony offered by Shoemaker

in 2006 on mold-related injury claims by workers at a Columbia, Md., office

building.....

“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 . . . ,’†Judge

Moylan

said in a transcript.

Gerald F. Gay of Arnold, Sevel & Gay in Baltimore is counsel for the

Chesson claimants.

J. Courson of Columbia, Md., represents Montgomery Mutual Insurance

Co.

Document is Available

Call (800) 496-4319 or

Search www.harrismartin.com

Opinion Ref# MOL-0911-12