A Maryland appellate court recently reversed a trial court’s decision that would have allowed testimony by a physician related to claims by various employees that they had sustained an accidental injury or occupational disease, known as “sick building syndrome,” as a result of their alleged work-related exposure to water damaged buildings [Montgomery Mut. Ins. Co. v. Chesson, 2012 Md. App. LEXIS 94 (Aug. 29, 2012)]. The court applied a Frye-Reed analysis [see Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923) and Reed v. State, 283 Md. 374, 389, 391 A.2d 364 (1978)], under which Maryland courts require that “before a scientific opinion will be received as evidence at trial, the basis of that opinion must be shown to be generally accepted as reliable within the expert’s particular scientific field.”
According to the court, the employees’ expert used differential diagnosis to come to his opinion regarding medical causation and that such differential diagnosis was “a scientific method that laymen would refer to as the process of elimination.” The court said that stated another way, differential diagnosis “is a standard scientific technique of identifying the cause of a medical problem by eliminating the likely causes until the most probable one is isolated.” In the instant case, the expert attributed a patient’s symptoms to exposure to water damaged buildings if, after establishing: (1) his or her exposure to a water damaged building, (2) symptoms indicated exposure, and (3) no confounders were present, blood and visual contrast sensitivity tests showed at least three of the following: (1) one of 54 kinds of immune response genotypes, (2) reduced levels of melanocyte stimulating hormone, (3) elevated levels of matrix metallic proteinase nine, (4) deficits in visual contrast sensitivity, (5) dysregulation of a hormone that stimulated adrenals to cortisol (ACTH), and (6) dysregulation of antidiuretic hormone and osmolality.
The court indicated that at the Frye-Reed hearing in the case, the parties acknowledged that the primary issue was whether exposure to mold caused the employees’ neurocognitive and musculoskeletal problems. Their expert testified that scientific publications supported the theory that exposure to water damaged buildings caused the human health effects at issue in the case. The court noted, however, that another expert testified that there was scientific research that provided there was no association between exposure to mold and certain human health effects, or in the alternative, that more research was necessary. The court said that while unanimity was not required to establish general acceptance, nevertheless, it believed that the medical articles demonstrated that there was a genuine controversy within the scientific community with regard to whether exposure to water damaged buildings caused the human health effects testified to by the employees’ expert. Accordingly, the testimony was not admissible.
One additional observation: It is interesting to note that the Maryland appellate court acknowledged that the Supreme Court, in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), concluded that Frye was superseded by the Federal Rules of Evidence. Maryland nevertheless still follows the Frye-Reed process.