`
`Daniel Ip (SBN 240033)
`Andrew K. Aaronian (SBN 318245)
`LITCHFIELD CAVO LLP
`2 North Lake Avenue, Suite 400
`Pasadena, CA 91101
`Tel: (626) 683-1100
`Fax: (626) 683-1113
`Email: ip@litchfiledcavo.com
` aaronian@litchfieldcavo.com
`
`Attorneys for Defendants,
`1545 BROADWAY HOMEOWNERS’
`ASSOCIATION, INC. & THE BOHAN COMPANY,
`INC.
`
`ELECTRONICALLY
`F I L E D
`
`Superior Court of California,
`County of San Francisco
`02/23/2024
`Clerk of the Court
`BY: WILLIAM TRUPEK
`Deputy Clerk
`
`SUPERIOR COURT OF THE STATE OF CALIFORNIA
`FOR THE COUNTY OF SAN FRANCISCO
`
` Case No. CGC-22-598325
`[Assigned to the Honorable Anne-Christine
`Massullo
`
`REQUEST FOR JUDICIAL NOTICE IN
`SUPPORT OF 1545 BROADWAY
`HOMEOWNERS’ ASSOCIATION, INC. & THE
`BOHAN COMPANY, INC. IN SUPPORT OF
`THEIR MOTION IN LIMINE NO. 1 TO
`EXCLUDE DOCTOR SCOTT MCMAHON’S
`DIAGNOSIS OF PLAINTIFF WITH CIRS
`
`Hearing Information:
`Date: February 20, 2024
`Time: 9:30 a.m.
`Courtroom: Room 206
`
`Trial Date: February 20, 2024
`
`
`
`
`
`REBECCA BURNSIDE,
`
` Plaintiff,
`
`v.
`
`1545 BROADWAY HOMEOWNERS’
`ASSOCIATION, INC., a California
`Common Interest Development Association
`[or Non-Profit Mutual Benefit Corporation];
`THE BOHAN COMPANY, INC., a
`California Corporation, and DOES 1 through
`50, inclusive,
`
`Defendants.
`
`1545 BROADWAY HOMEOWNERS’
`ASSOCIATION, INC., a California Non-
`Profit Mutual Benefit Corporation; THE
`BOHAN COMPANY, INC., a California
`Corporation,
`
` Cross-Complainants,
`
`v.
`
`REBECCA BURNSIDE, and ROES 1
`through 30, inclusive,
`
`
` Cross-
`Defendants.
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`1
`REQUEST FOR JUDICIAL NOTICE
`
`
`

`

`
`
`
`
`
`TO THE COURT, THE PARTIES, AND THEIR ATTORNEYS OF RECORD:
`Pursuant to Evidence Code sections 451, 452, and 453, Defendants 1545 Broadway
`
`Homeowners’ Association, Inc. (“HOA”) and The Bohan Company, Inc. (“Bohan”) (collectively,
`
`“Defendants”) respectfully request that the Court take judicial notice of the following records in
`
`support of Defendants’ concurrently-filed Motion In Limine No. 1 To Exclude Doctor Scott
`
`McMahon’s Diagnosis of Plaintiff with CIRS.
`
`Judicial notice may be taken of the following matters to the extent that they are not embraced
`
`within Section 451:
`
`“(a) The decisional, constitutional, and statutory law of any state of the United States
`
`and the resolutions and private acts of the Congress of the United States and of the
`
`Legislature of this state.
`
`(b) Regulations and legislative enactments issued by or under the authority of the United
`
`States or any public entity in the United States.
`
`(c) Official acts of the legislative, executive, and judicial departments of the United
`
`States and of any state of the United States.
`
`(d) Records of (1) any court of this state or (2) any court of record of the United States
`
`or of any state of the United States.
`
`…
`
`(g) Facts and propositions that are of such common knowledge within the territorial
`
`jurisdiction of the court that they cannot reasonably be the subject of dispute.
`
`(h) Facts and propositions that are not reasonably subject to dispute and are capable of
`
`immediate and accurate determination by resort to sources of reasonably indisputable
`
`accuracy.” (Evid. Code § 452)
`
`Pursuant to the foregoing authorities, Defendants request that the Court take judicial notice of
`
`the following exhibits:
`
`2
`REQUEST FOR JUDICIAL NOTICE
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`
`
`
` Exhibit A – Maryland Board of Physicians Consent Order and
`
` Exhibit B – Maryland Court of Special Appeals.
`
`
`
`DATED: February 16, 2024
`
`
`
`
`
`
`
`
`
`
`By:
`
`
`
`
`LITCHFIELD CAVO LLP
`
`
`Daniel Ip, Esq.
`Andrew K. Aaronian
`Attorneys for Defendants
`1545 BROADWAY HOMEOWNERS
`ASSOCIATION, INC. & THE BOHAN
`COMPANY
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`3
`REQUEST FOR JUDICIAL NOTICE
`
`

`

`
`
`
`
`
`
`
`
`PROOF OF SERVICE
`Rebecca Burnside vs. 1545 Broadway Homeowners’ Association, Inc., et al.
`Case No. CGC22598325
`
`I, the undersigned, declare that I am employed in the County of Los Angeles, State of California.
`
`I am over the age of 18 and not a party to the instant case. My business address is 2 North Lake
`Avenue, Suite 400, Pasadena, California 91101. My electronic address is partida@litchfieldcavo.com.
`
`
`
`
`
`
`On February 16, 2024, I am serving the foregoing document described as: REQUEST FOR
`
`JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS 1545 BROADWAY HOMEOWNERS’
`ASSOCIATION, INC. & THE BOHAN COMPANY, INC. NOTICE OF MOTION IN LIMINE
`NO. 1 TO EXCLUDE DOCTOR SCOTT MCMAHON’S DIAGNOSIS OF PLAINTIFF WITH
`CIRS; MEMORANDUM OF POINTS AND AUTHORITIES in the interested party(ies) in this
`action as follows:
`
` Jeffrey H. Belote, Esq.
`Melissa Palozola, Esq.
` CLARK HILL, LLP
` 505 Montgomery Street, 13th Floor
` San Francisco, CA 94111
`
`
`
`Attorneys for Plaintiff, Rebecca Burnside
`Tel: (415) 984-8500 | Fax: (415) 984-8599
`Email: jbelote@clarkhill.com
` MPalozola@clarkhill.com
` lybrown@clarkhill.com – Assistant
`
`
`
`
`XX ONLY BY ELECTRONIC SERVICE [E-MAIL] Only by emailing the document(s) to the
`persons at the e-mail address(es). This is necessitated during the declared National Emergency
`due to the Coronavirus (COVID-19) pandemic because this office will be working remotely, not
`able to send physical mail as usual, and is therefore using only electronic mail. No electronic
`message or other indication that the transmission was unsuccessful was received within a
`reasonable time after the transmission. We will provide a physical copy, upon request only, when
`we return to the office at the conclusion of the national emergency.
`
`
`
`XX STATE - I declare under penalty of perjury under the laws of the State of California that the
`foregoing is true and correct.
`
`Executed on February 16, 2024, at Pasadena, California.
`
`
`
`
`
`
`
`
`
`
`
`
`_________________________________
`Peter S. Partida
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`-4-
`PROOF OF SERVICE
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`

`

`
`
`
`
`
`
`
`
`EXHIBIT A
`EXHIBIT A
`
`

`

`IN THE MATTER OF
`
`RITCHIE C. SHOEMAKER, M.D.
`
`Respondent
`
`License Number: D24924
`
`*
`
`*
`
`*
`
`*
`
`*
`
`*
`*
`*
`CONSENT ORDER
`
`•
`
`•
`
`•
`
`BEFORE THE
`
`MARYLAND STATE
`
`BOARD OF PHYSICIANS
`
`Case Numbers: 2010-0765 &
`2010-0912
`*
`
`*
`
`*
`
`On November 26, 2012, the Maryland State Board of Physicians (the
`
`"Board") charged Ritchie C. Shoemaker, M.D. (the "Respondent") (D.O.B.
`
`06/13/1951), License Number D24924, under the Maryland Medical Practice Act
`
`(the "Act"), Md. Health Occ. Code Ann.
`
`("H.O.") §§ 14-401 et seq. (2009
`
`Repl.Vol.)
`
`The pertinent provisions of the Act under H.O. § 14-404(a) provide as
`follows:
`
`§ 14-404. Denials, reprimands, probations, suspensions, and
`revocations - Grounds.
`
`In general. Subject to the hearing provisions of § 14-405 of
`(a)
`this subtitle, the Board, on the affirmative vote of a majority of the
`quorum, may reprimand any licensee, place any licensee on
`probation, or suspend or revoke a license if the licensee:
`
`(22) Fails to meet appropriate standards as determined by
`appropriate peer review for the delivery of quality medical
`and surgical care performed in an outpatient surgical facility,
`office, hospital, or any other location in this State [.]
`
`On February 6, 2013, a conference with regard to this matter was held
`
`before the Board's Case Resolution Conference ("CRC"). As a result of the
`
`CRC, the Respondent agreed to enter into this Consent Order, consisting of
`
`Findings of Fact, Conclusions of Law and Order.
`
`

`

`FINDINGS OF FACT
`
`1.
`
`At all times relevant hereto, the Respondent was and is licensed to
`
`practice medicine in the State of Maryland. The Respondent was
`
`originally licensed to practice medicine in Maryland on June 19, 1980.
`
`The Respondent also holds inactive medical licenses in North Carolina,
`
`Pennsylvania and Virginia.
`
`2.
`
`The Respondent was board-certified in Family Medicine; however, his
`
`board-certification expired in 2006.
`
`3.
`
`The Respondent maintains an office for the practice of medicine, the
`
`Chronic Fatigue Center, in Pocomoke City, Maryland.
`
`Procedural History
`
`4.
`
`By letter dated February 22, 2006, the Board notified the Respondent that
`
`it had received a complaint regarding the Respondent's medical practice.
`
`The Board further notified the Respondent that the complaint had been
`
`closed, but advised him that, "the Board has mandated protocols for
`
`alternative medicine practitioners to ensure that prospective patients are
`
`fully informed of the nature of your practice regarding alternative medical
`
`diagnoses and treatments."
`
`5.
`
`On August 26, 2009, the Board issued to the Respondent an Advisory
`
`Letter. The Board notified the Respondent that an anonymous complaint
`
`received by the Board alleged that the Respondent was treating and
`
`prescribing for Lyme Disease over the internet. The Board voted to close
`
`the case but "strongly advised" the Respondent to comply with the Board's
`
`2
`
`

`

`mandated protocols for alternative medicine practitioners to ensure that
`
`prospective patients are fully informed of the nature of his practice
`
`regarding alternative medical diagnoses and treatments.
`
`Current Complaints
`
`6.
`
`On or about April 16, 2010, the Board received a written complaint from an
`
`individual who was not a patient of the Respondent. The complainant
`
`alleged that the Respondent was soliciting prospective patients on a
`
`website that encourages the viewer to take an on-line diagnostic test. The
`
`complainant reported that he took the test which included very broad
`
`symptom responses. The complainant provided positive responses to a
`
`few of the items. Based on the responses, the website suggested that the
`
`complainant may be suffering from a biotoxin illness and further suggested
`
`that the complainant visit the Respondent's office. The complainant
`
`alleged that the Respondent cited "his own non-profit [organization]
`
`research to convince people to visit his private practice and purchase
`
`unnecessary tests."
`
`7.
`
`8.
`
`The Board designated this complaint as Board Case Number 2010-0765.
`
`On or about June 2, 2010, the Board received a complaint from a former
`
`patient of the Respondent regarding the Respondent's practice.
`
`9.
`
`The Board designated this complaint as Case Number 2010-0912.
`
`10.
`
`In furtherance of its investigation, the Board subpoenaed from the
`
`Respondent patient records and directed him to produce a summary of his
`
`care of each patient.
`
`3
`
`

`

`11.
`
`The patient records and the Respondent's response were then referred to
`
`a peer review entity for review of the Respondent's practice. The results
`
`of the peer review are summarized below.
`
`The Respondent's Practice
`
`12.
`
`The Respondent's patients are generally self-selected; that is, they have
`
`identified themselves as suffering from health problems as a consequence
`
`of having been exposed to mold and have sought treatment from the
`
`Respondent after reading his website or other literature.
`
`13.
`
`The Respondent has developed a treatment protocol for a diagnosis he
`
`calls Chronic Inflammatory Response Syndrome. The protocol includes
`
`the administration of cholestyraminel as an initial step if removal from the
`
`suspected environmental trigger is not possible or ineffective.
`
`14.
`
`The Respondent enrolled several of the patients whose care was
`
`reviewed in an experimental protocol under the auspices of a legitimate
`
`Institutional Review Board.
`
`Summary of Peer Review
`
`15.
`
`The peer reviewers noted the following deficiencies in all of the cases they
`
`reviewed:
`
`a. Off-label use of potentially toxic drugs (e.g., Actos2 and
`
`Rifampin,3). The drugs prescribed by the Respondent are
`
`potentially toxic when used for inappropriate purposes;
`
`1 Cholestyramine is a bile acid sequestrant which binds acid in the gastrointestinal tract to prevent
`its reabsorption.
`2 Actos is a Type 2 diabetes medication that regulates blood sugar.
`
`4
`
`

`

`b. The Respondent's documentation is not consistently legible;
`
`c. The Respondent used diagnostic codes for conditions not
`
`evident in the patient's record to justify the laboratory studies.
`
`The Respondent justified many of the laboratory tests he
`
`ordered for each patient using the diagnostic code for "toxic
`
`encephalopathy, yet other than the patients' complaint of not
`
`thinking clearly, there is no evidence that the patients
`
`displayed any clinical signs of encephalopathy. Similarly, for
`
`all of the patients whose care was reviewed, the Respondent
`
`noted the IDC code for bronchitis (466.0) to justify spirometry;
`
`however, there was no evidence in the patients' record of
`
`bronchitis.
`
`The Respondent noted that IDC code for
`
`premature heart beats (427.61) to justify EKGs for each
`
`patient, however, there is no evidence of premature beats in
`
`the records;
`
`d. The Respondent failed to document his treatment rationale
`
`for starting, adjusting or changing medications or dosages;
`
`e. The Respondent failed to document complete problem lists
`
`and medication lists.
`
`16.
`
`In addition to the above deficiencies, the Respondent prescribed Procrit
`
`(erythropoietin), a glycoprotein that stimulates red blood production, to a
`
`patient in a manner that was potentially dangerous to the patient. Procrit
`
`3 Rifampin is used with other medications to treat tuberculosis and Neisseria meningitides (a type
`of bacteria that can cause meningitis.
`
`5
`
`

`

`is typically prescribed to treat anemia. The patient signed an informed
`
`consent form that included the Food and Drug Administration "black box
`
`warning" that advised of "increased mortality, serious cardiovascular and
`
`thromboembolic events and tumor progression." The black box warning
`
`further advises the physician to individualize dosing to achieve and
`
`maintain hemoglobin levels within the range of 10 to 12 gm/dL.
`
`17. According
`
`to
`
`the
`
`informed consent
`
`form,
`
`the Respondent was
`
`administering Procrit to "lower C4a and correct chemical disturbances in
`
`central nervous system."
`
`18.
`
`The patient was not anemic; his hemoglobin was 14.6 gr/dL when the
`
`Respondent began administering Procrit.
`
`19.
`
`The Respondent administered Procrit on five occasions, two to three days
`
`apart. The Respondent monitored the patient's hemoglobin after each
`
`Procrit injection; after the fifth injection, the patient's hemoglobin was 15.6
`
`gr/dL. The Respondent failed to document in the patient's record that he
`
`discontinued the patient's Procrit after the fifth injection and his reason for
`
`doing so.
`
`20.
`
`The practice deficiencies set forth in ¶¶ 16 — 19 are examples of the
`
`Respondent's failure to meet the standard of quality care.
`
`CONCLUSIONS OF LAW
`
`Based on the foregoing Findings of Fact, the Board concludes as a matter of
`
`law that the Respondent failed to meet the standard of quality care, in violation of
`
`H.O. § 14-404(a)(22). The Board dismisses the charge that the Respondent
`
`6
`
`

`

`engaged in unprofessional conduct in the practice of medicine (H.O. § 14-
`
`404(a)(3)(ii).
`
`ORDER
`
`Based on foregoing Findings of Fact and Conclusions of Law, it is this
` day of March
` , 2013, by a majority of the quorum of the
`
`20th
`
`
`Board considering this case:
`
`ORDERED that the Respondent is REPRIMANDED; and it is further
`
`ORDERED that because the Respondent's medical practice is now
`
`closed, should the Respondent resume the practice of medicine in Maryland, he
`
`shall be placed on PROBATION for a minimum of two (2) years and until he fully
`
`and satisfactorily complies with all of following terms and conditions:
`
`i.
`
`ii.
`
`iii.
`
`iv.
`
`v.
`
`the Respondent shall notify the Board in writing prior to re-
`opening his office;
`
`prior to the resumption of practice, the Respondent shall
`obtain at his own expense a Board-approved practice
`monitor;
`
`for the first year of probation, the practice monitor will review
`on a monthly basis aspects of the Respondent's care
`including diagnosis, treatment and medications prescribed
`and appropriate referral to other medical practitioners;
`
`the Respondent shall ensure that the practice monitor
`submits to the Board a detailed report of his/her findings on
`a quarterly basis;
`
`at the end of the first year of probation, the Board will
`determine whether the condition that the Respondent's
`practice be monitored on a monthly basis should be modified
`or terminated;
`
`vi.
`
`The Respondent shall not require or solicit patients to make
`a contribution to his non-profit research fund.
`
`7
`
`

`

`ORDERED that the Respondent shall be subject to chart or peer review at
`
`the discretion of the Board during the probationary period; and it is further
`
`ORDERED that the Respondent shall comply with the Maryland Medical
`
`Practice Act and all laws, statutes and regulations pertaining to the practice of
`
`medicine; and it is further
`
`ORDERED that the Respondent's failure to comply with any of the
`
`conditions of probation or this Consent Order shall be considered a violation of
`
`probation; and it further
`
`ORDERED that if the Respondent violates any of the terms and conditions
`
`of probation or of this Consent Order, the Board, in its discretion, after notice and
`
`an opportunity for an evidentiary hearing before an Administrative Law Judge at
`
`the Office of Administrative Hearings if there is a genuine dispute as to the
`
`underlying material facts, or an opportunity for a show cause hearing before the
`
`Board, may impose any other disciplinary sanction for with the Board may have
`
`imposed, including a reprimand, probation, suspension, revocation and/or
`
`monetary fine, said violation being proven by a preponderance of the evidence;
`
`and it is further
`
`ORDERED that two (2) years after the his probationary period begins, the
`
`Respondent may submit a written petition to the Board requesting termination of
`
`probation. After consideration of the petition, the probation may be terminated,
`
`through an order of the Board or designated Board committee. The Board, or
`
`designated Board committee, will grant the termination if the Respondent has
`
`8
`
`

`

`fully and satisfactorily complied with all of the probationary terms and conditions
`
`and there are no pending complaints related to the charges; and it is further
`
`ORDERED that the Respondent shall not petition the Board for early
`
`termination of the terms and conditions of this Consent Order; and it is further
`
`ORDERED that the Respondent shall be responsible for all costs under
`
`this Consent Order; and it is further
`
`ORDERED that this Consent Order shall be a public document pursuant
`
`to Md. State Gov't Code Ann. § 10-611 (2009 Repl. Vol.).
`
`Date
`
`Carole J. Catalfo.
`Executive Director
`Maryland State Board o
`
`ysicians
`
`CONSENT
`
`I, Ritchie C. Shoemaker, M.D., acknowledge that I am represented by
`
`counsel and have consulted with counsel before entering this Consent Order. By
`
`this Consent and for the purpose of resolving the issues raised by the Board, I
`
`agree and accept to be bound by the foregoing Consent Order and its conditions.
`
`I acknowledge the validity of this Consent Order as if entered into after the
`
`conclusion of a formal evidentiary hearing in which I would have had the right to
`
`counsel, to confront witnesses, to give testimony, to call witnesses on my own
`
`9
`
`

`

`behalf, and to all other substantive and procedural protections provided by the
`
`law.
`
`I agree to forego my opportunity to challenge these allegations.
`
`I
`
`acknowledge the legal authority and jurisdiction of the Board to initiate these
`
`proceedings and to issue and enforce this Consent Order.
`
`I affirm that I am
`
`waiving my right to appeal any adverse ruling of the Board that I might have filed
`
`after any such hearing.
`
`I sign this Consent Order after having an opportunity to consult with
`
`counsel, voluntarily and without reservation, and I fully understand and
`
`comprehend the language, meaning and terms of the Consent Order.
`
`t 3
`
`9-7/1 l
`Date
`
`ie C. Shoemaker, M.D.
`itc
`e
`pondent
`
`STATE OF MARYLAND
`CITY/COUNTY OF \At OktCrS4C/
`
`I HEREBY CERTIFY that on this
`
`day of Rc)
`
` 2013,
`
`before me, a Notary Public of the foregoing State and City/County personally
`
`appeared Ritchie C. Shoemaker, M.D., and made oath in due form of law that
`
`signing the foregoing Consent Order was his voluntary act and deed.
`
`AS WITNESSETH my hand and notarial seal.
`
`k-CEL-Q1)1 Wag.-612,C,
`Notary Public
`
`10
`
`

`

`
`
`
`
`
`
`
`
`EXHIBIT B
`EXHIBIT B
`
`

`

`REPORTED
`
`IN THE COURT OF SPECIAL APPEALS
`
`OF MARYLAND
`
`No. 2454
`
`September Term, 2009
`
`MONTGOMERY MUTUAL INSURANCE
`COMPANY
`
`v.
`
`JOSEPHINE CHESSON, ET AL.
`
`Eyler, Deborah S.,
`Graeff,
`Hotten,
`
`
`
`JJ.
`
`Opinion by Hotten, J.
`
` Filed: August 29, 2012
`
`

`

`At the heart of this case is whether the theories and methodologies of Ritchie
`
`Shoemaker, M.D. (“Dr. Shoemaker”) are generally accepted in the relevant scientific
`
`community. Namely, we must determine whether the Circuit Court for Howard County was
`
`correct in concluding that: (1) the differential diagnosis performed by Dr. Shoemaker was
`
`reliable and acceptable to establish general and specific causation, and (2) the differential
`
`diagnosis method is generally accepted in the medical community.1 For the reasons that
`
`follow, we reverse the judgment of the circuit court.
`
`BACKGROUND
`
`Appellees, Josephine Chesson, Martha Knight, Carole Silberhorn, Linda Gamble,
`
`Kenneth Lyons, and Connie Collins, were employees of the Baltimore Washington
`
`Conference of the United Methodist Church (“BWCUMC”), located at 9720 Patuxent Woods
`
`Parkway, Columbia, Maryland. In late 2002, several employees complained that there was
`
`an odor emanating throughout the walls of the facility. A maintenance crew investigated the
`
`situation and discovered mold in the walls. Two types of mold were found: Aspergillus and
`
`Stachybotrys. As a result of the exposure, each appellee filed a claim against BWCUMC and
`
`its insurer, appellant, Montgomery Mutual Insurance Company, with the Maryland Worker’s
`
`Compensation Commission (“the Commission”). The claims alleged that appellees suffered
`
`an accidental injury or occupational disease, known as sick building syndrome, as a result
`
`of the exposure. A hearing was held and the Commission disallowed two of appellees’
`
`1 Appellant’s question on appeal is: “Whether the Circuit Court for Howard County
`erred and abused its discretion in finding that the Frye-Reed Doctrine was satisfied by Dr.
`Shoemaker’s use of differential diagnosis.”
`
`

`

`claims and awarded the remaining appellees partial compensation.2
`
`Each appellee noted an appeal and the cases were consolidated. Before trial, appellant
`
`filed a motion in limine to preclude the testimony of Dr. Shoemaker. Appellant argued that
`
`Dr. Shoemaker’s testimony should be excluded because his methodologies and theories
`
`regarding the causal nexus between exposure to mold and human health effects were not
`
`generally accepted in the relevant scientific community. Recognizing that Dr. Shoemaker
`
`was a board certified physician, who devoted a significant portion of his practice to caring
`
`for individuals who were exposed to water damaged buildings, the court denied the motion.
`
`The court then noted that a Frye-Reed hearing was unnecessary.
`
`The Commission’s decisions were subsequently reversed and appellant noted an
`
`appeal. Among other things, on appeal, appellant argued that the circuit court committed
`
`error by not conducting a Frye-Reed hearing. Montgomery Mut. Ins. Co. v. Chesson, 170
`
`Md. App. 551, 556 (2006). We held that the court correctly declined to conduct a Frye-Reed
`
`hearing because Dr. Shoemaker performed “certain tests” that were “not so unorthodox that
`
`would warrant subjecting them to a Frye-Reed analysis . . . .” Id. at 569. Specifically, we
`
`noted that a hearing was unnecessary because “expert opinions concerning the cause or
`
`origin of an individual’s condition are not subject to Frye-Reed analysis.” Id.
`
`An appeal was noted and a petition for certiorari was granted. See Montgomery Mut.
`
`2 The Commission concluded that neither Collins nor Lyons suffered an accidental
`injury or occupational disease as a result of exposure to mold. The Commission, however,
`determined that Chesson, Knight, and Silberhorn suffered an accidental injury, and that
`Gamble suffered an occupational disease.
`
`-2-
`
`

`

`Ins. Co. v. Chesson, 396 Md. 12 (2006). In reversing our decision, the Court of Appeals held
`
`that a Frye-Reed hearing should have been held “to determine whether the medical
`
`community generally accepts the theory that mold exposure causes the illnesses that
`
`[appellees] claimed to have suffered, and the propriety of the tests Dr. Shoemaker employed
`
`to reach his medical conclusions.” Montgomery Mut. Ins. Co. v. Chesson, 399 Md. 314, 328
`
`(2007). Noting that Dr. Shoemaker’s testimony involved more than generally accepted
`
`medical opinion and diagnosis, the Court explained that “Dr. Shoemaker employs medical
`
`tests to reach a conclusion that is not so widely accepted as to be subject to judicial notice
`
`of reliability.” Id. at 332 (footnote omitted). Indeed, because “Dr. Shoemaker’s testimony
`
`was based on scientific opinion regarding the causal link between mold exposure and sick
`
`building syndrome . . . ,” the Court of Appeals reasoned that “his theories regarding causation
`
`and the tests he employed to diagnose [appellees] were subject to Frye-Reed analysis.” Id.
`
`at 329. Accordingly, the case was remanded for the limited purpose of determining “whether
`
`Dr. Shoemaker’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.” Id. at 336.
`
`At the Frye-Reed hearing, Dr. Shoemaker explained the genesis of his theories and
`
`methodologies. Dr. Shoemaker began a rural family practice in Pocomoke City in 1980.
`
`Around 1997, some of his patients began developing acute and chronic symptoms from
`
`exposure to the Pocomoke River, and tributaries adjacent to the Chesapeake Bay. One of the
`
`symptoms, diarrhea, was treated with Cholestyramine, a drug approved by the United States
`
`-3-
`
`

`

`Food and Drug Administration for treatment of elevated cholesterol. Cholestyramine was
`
`prescribed because it was commonly used “in primary care medicine to treat secretory
`
`diarrhea.” As Dr. Shoemaker expected, the diarrhea reduced; but surprisingly, there was an
`
`improvement concerning issues associated with memory, headaches, coughing, and muscle
`
`aches. Based on this, Dr. Shoemaker published a paper in the Maryland Medical Journal
`
`reviewing other cases in which patients suffered memory loss, cognitive impairments,
`
`headaches, rashes, abdominal pain, diarrhea, redness of the eyes, and bronchial spasms that
`
`were caused by exposure to the Pocomoke River.
`
`Soon thereafter, the Maryland Department of Health and Mental Hygiene appointed
`
`a committee to examine some of Dr. Shoemaker’s patients. The Center for Disease Control
`
`Prevention (“CDC”) worked with the committee and developed a case definition for the
`
`illness: Possible Estuary-Associated Syndrome (“PEAS”).3 In diagnosing patients that
`
`purportedly had PEAS, Dr. Shoemaker would review possible exposure, consider factors that
`
`could contribute to potential physical and cognitive issues, conduct a physical examination,
`
`order medical testing, and thereafter, develop a differential diagnosis.
`
`In 1998, Kenneth Hudnell, Ph.D., published an article that explored the benefits of
`
`using visual contrast sensitivity testing as a biomarker for PEAS. Dr. Shoemaker started
`
`using the testing soon thereafter. According to Dr. Shoemaker, the test results indicated that
`
`there were distinguishable markers between people exposed to the Pocomoke River and those
`
`3 Dr. Shoemaker referred to the illness as pfiesteria. However, we shall refer to it as
`PEAS because the CDC states that exposure to pfiesteria can cause PEAS.
`
`-4-
`
`

`

`who were not. At this point, realizing that he was treating patients who were not exposed to
`
`pfiesteria, dinoflagellates, or algal blooms, Dr. Shoemaker believed that his patients must
`
`have been exposed to water damaged buildings that contained visible mold.
`
`In treating the patients who were exposed to water damaged buildings, Dr. Shoemaker
`
`would initially remove samples of visible mold from a person’s workplace or residence.
`
`Then he would remove the patient from the exposure and prescribe Cholestyramine. The
`
`person would remain on Cholestyramine and away from his or her workplace or residence
`
`for approximately two weeks. If the symptoms subsided, Dr. Shoemaker would remove the
`
`patient from Cholestyramine and instruct him or her to stay away from the exposure. The
`
`patient would then be evaluated approximately two to three days later. Assuming the patient
`
`was not exhibiting the previous symptoms, the patient, again, would be exposed to the mold.
`
`This exposure would occur without Cholestyramine being prescribed. If the symptoms arose
`
`again, the patient would be retreated with Cholestyramine.
`
`Not long after, Dr. Shoemaker added blood tests to review whether the treatment was
`
`working. After that, he created a two-tiered case definition.4 To satisfy the first tier, the
`
`following had to occur: (1) a patient had a potential for exposure to water damaged buildings,
`
`(2) there was the “presence of multiple health symptoms for multiple health systems,” and
`
`(3) confounders were absent (i.e. untreated or uncontrolled medical conditions). If a patient
`
`satisfied these requirements, the results from the blood and visual contrast sensitivity tests
`
`4 Dr. Shoemaker stated that “the first tier was used to obtain reasonable medical
`probability and the second tier was used to increase restrictiveness . . . .”
`
`-5-
`
`

`

`would be reviewed to determine whether three of the following were present: (1) one of fifty-
`
`four kinds of immune response genotypes known as HLA, (2) reduced levels of melancyte
`
`stimulating hormone (“MSH”),(3) elevated levels of matrix metalproteinase-9 (“MMP9”),
`
`(4) deficits in visual contrast sensitivity, (5) dysregulation of ACTH and cortisol, and (6)
`
`dysregulation of ADH and osmolality.
`
`According to Dr. Shoemaker, HLA is inspected because it is a genetic measure that
`
`reviews immune response genes that “help turn down innate immunity following exposure
`
`. . . .” When “HLA is working, . . . innate immune re-signals get converted into antibodies
`
`that then protect [a person] . . . .” Dr. Shoemaker next explained that the level of MSH is
`
`analyzed because it is a hormone that regulates innate immunity in the body. According to
`
`him, MSH deficiency is generally present in individuals exposed to water damaged buildings
`
`because innate immune responses are not being properly regulated. Dr. Shoemaker thereafter
`
`noted that levels of MMP9 are reviewed because “MMP9 looks directly at a unified
`
`presentation of a kind of innate immune element called a cytokine . . . .” As for the visual
`
`contrast sensitivity test, Dr. Shoemaker explained that this test is used because its results
`
`illustrate “inflammatory changes that cause reduction of blood flow in small blood vessels
`
`in the retina.” Additionally, Dr. Shoemaker provided that ACTH and cortisol are examined
`
`to determine whether there is a “disruption of a secondary mechanism to compensate for
`
`original inflammation . . .,” and ADH and osmolality are examined to review the
`
`hypothalamic center. All in all, these measurements are supposed to illustrate inflammation,
`
`which, according to Dr. Shoemaker, is a biomarker for illnesses related to exposure to water
`
`-6-
`
`

`

`damaged buildings.
`
`Hung Cheung, M.D. (“Dr. Cheung”), a board certified physician in internal and
`
`occupational medicine, testified in opposition to Dr. Shoemaker. In his “health-based
`
`approach” to evaluating patients associated with exposure to mold, Dr. Cheung explained
`
`that he reviewed a patient’s complaints and medical history, assessed environmental
`
`conditions, and then determined whether environmental conditions were the cause of a
`
`patient’s complaints. To evaluate the environment expos