High court Chief Judge Bell hears final oral arguments

Listen to this article

ANNAPOLIS — Court of Appeals Chief Judge Robert M. Bell, his coming July 6 retirement constitutionally mandated, presided over his final oral argument session Tuesday as head of the Maryland Judiciary and its top tribunal.

The day’s significance went neither unnoticed nor unacknowledged by his six colleagues on the high court: Each judge placed a Bob Bell bobblehead on the bench in front of him. The figurine had been given to those who attended an April 18 retirement gala for Bell, who will reach the mandatory retirement age of 70 on July 6.

Other than the knickknack display, the high court treated the final argument of Bell’s last day as it has so many of its others: by grilling attorneys.

The two lawyers in this case argued over whether the intermediate Court of Special Appeals had properly excluded a medical expert’s testimony that the mold in a Columbia office building had caused six employees of the Baltimore Washington Conference of the United Methodist Church to suffer joint disease, headaches and memory loss.

The workers’ attorney urged the high court to overturn the Court of Special Appeals’ decision, saying that Dr. Ritchie C. Shoemaker’s has validly linked mold in water-damages buildings to these ailments through blood tests, cholesterol-lowering drug and patient questionnaires. Shoemaker’s methods have been accepted in two medical journal articles, added the attorney, Gerald F. Gay, of Arnold, Sevel & Gay P.A. in Towson.

Nancy J. Courson, the attorney for Montgomery Mutual Insurance Co., which provided workers’ compensation coverage, said Shoemaker’s unconventional methods have not been “generally accepted in the scientific community” and therefore his testimony was properly excluded under the Court of Appeals’ Frye-Reed standard. Courson is with Dirska & Levin in Columbia.

Courson’s argument drew strong support from several judges, including Sally D. Adkins and Lynne A. Battaglia, who questioned whether two journal articles can qualify as general acceptance among scientists.

“There’s always going to be more [than two articles] in the scientific community,” Battaglia said. “Trust me. They write a lot.”

In addition, Judge Glenn T. Harrell Jr. grilled Gay on whether Shoemaker’s diagnostic methods have been taught in medical schools or can be found in textbooks “that he did not write,” to which the attorney responded no.

The high court session marked the second time the judges have considered the testimony of Shoemaker, a Pocomoke City general practitioner.

In 2007, the high court vacated a July 2005 verdict in the workers’ favor and sent the case back to the trial judge for a determination of whether the doctor’s testimony was admissible under the Frye-Reed standard.

On remand to the Howard County Circuit Court, Judge Daniel Moylan in November 2009 deemed the testimony admissible and reinstated the jury’s determination that that the Workers’ Compensation Commission was wrong and that the employees had shown their injuries were caused by the mold in their building.

The Court of Special Appeals reversed that decision last August, finding that Shoemaker’s theories and methodologies linking the moldy building to the worker’s non-respiratory injuries were not generally accepted in the scientific community.

The workers then sought review by the Court of Appeals.

The high court did not indicate when it will issue a decision in the case, Josephine Chesson et al. v. Montgomery Mutual Insurance Co., No. 97, Sept. Term 2012.

Bell ended the argument session with a sendoff familiar to the many attorneys who argued before him during his 17 years as chief, but which took on added poignancy Tuesday.

“Thank you, all.”