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Wednesday, February 26, 2020

Expert's testimony must be put to the test

By John O'Brien | May 23, 2007


ANNAPOLIS, Md. - Maryland's highest court reiterated Thursday that merely taking an expert's word isn't good enough.

The Court of Appeals unanimously decided that a Frye-Reed hearing is necessary to determine the validity of Dr. Ritchie Shoemaker in the case of Josephine Chesson, et al. v. Montgomery Mutual Insurance Company, a case brought on by employees of Baltimore Washington Conference of the United Methodist Church in Columbia over alleged poor air quality.

The plaintiffs claimed they'd suffer a disease known as "sick building syndrome" because toxic mold was found behind a wall. After filing Workers' Compensation claims, they enlisted Shoemaker to testify to on their behalf.

Defense counsel argued that a hearing should have taken place to determine if Shoemaker's beliefs regarding sick building syndrome are widely accepted, a practice established in 1978's Reed v. State decision and designed to determine the admissibility of an expert's testimony. It interpreted a U.S. Supreme Court ruling from the 1920s.

" The issue presented in this case is whether the Circuit Court abused its discretion by not holding a Frye-Reed hearing... to decide whether the doctor's methodologies used for diagnosis and theories regarding the causal connection between mold exposure and certain human health effects are generally accepted in the scientific community for that purpose" Justice Irma Raker wrote. "We shall hold that the expert's testimony should have been the subject of a Frye-Reed hearing."

Raker added that Shoemaker uses procedures when testing for sick building syndrome that are not widely accepted as to be subject to judicial notice of reliability.

"While we offer no opinion on the general acceptance of Dr. Shoemaker's medical conclusions, we think it clear that his theories are not the proper subject of judicial notice," she wrote. "The debate on toxic mold and sick building syndrome has become increasingly prevalent in American courtrooms, and courts across the country have reached differing conclusions regarding the causal relationship between mold exposure and sick building syndrome."

Raker says if the testimony is ruled inadmissible after the test, then the judgment in the plaintiffs' favor should be vacated. If not, then it should remain in effect.

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