In a case just decided in the District of Columbia, (Superior Court
of the District of Columbia, September 15, 2008 Civil Action 06-7172 B)
Dr. Ritchie Shoemaker, a mold/wet damp indoor
space disease "expert," was excluded in a Frye decision. In
and of itself that would be of marginal interest since he has been
excluded many times. The facts and their implications are,
however, of considerable interest, potentially broadly applicable and a
threat to the very existence of Daubert and related gatekeeper
precedents (at least for medical experts).
The plaintiff
argued that Dr. Shoemaker was proffered, not as an opinion expert, but
as a treating physician, thereby immunizing him from a motion to
exclude his testimony. I do not know whether such an argument has been
made and, more importantly, upheld, in Federal or State courts. I can
tell you that in this case, in the District of Columbia, the Judge was
having none of that argument. To quote her:
To illustrate the point, if a court would exclude the testimony of a
doctor who believes that a plaintiff's respiratory symptoms were in
fact widget disease caused by the cost of widgets in Western Samoa, (a
disease not accepted in the scientific community), curable by the
doctor's wand-waving treatments (again that have no acceptance in the
scientific community), the same testimony should be excluded as
unreliable, even if plaintiff sought treatment from the doctor and
allegedly obtained the wand-waving cure.
Judge Ronna Lee Beck, therefore, saw no
difference between improperly-founded expert testimony put forth by a
"treating" physician versus the same testimony offered by a hired
expert. Because of that view, when plaintiff's counsel refused to
participate in a Frye hearing following a motion in limine to exclude
Dr. Shoemaker's testimony, the Judge ruled that he could not testify to
his diagnosis, to causation, or to his reasons for treatment. She
further decided to bifurcate the trial separating liability from
damages. Whether or not she would permit Dr. Shoemaker to testify to
damages was undecided in this ruling. (It makes little sense that he
could offer such testimony without piggybacking on the excluded areas
of testimony.) Whether her decision will be upheld on appeal, we have
no way of knowing. However, what is clear, is that this was an
excellent ruling for the defendants, with whom we worked in this
matter. What is also clear, is that this type of tactical approach
threatens the basic intent of Frye and Daubert. Any number of fringe
practitioners or junk science "experts" could readily insulate their
testimony from any and all challenges, were they immune because they
were called "treating physicians."
The full decision is available by clicking here. I would appreciate any input from our attorney friends reading this who might have knowledge of such precedents.
Ronald E. Gots, M.D., Ph.D.
THE NMAS GROUP
2301 Research Boulevard
Suite 210
Rockville, MD 20850-3204
800-566-1669
info@nmas.com
