Thursday, December 6, 2018

Governor Hogan Appoints New Maryland Workers’ Compensation Commissioners

Governor Larry Hogan recently appointed Allan H. Kittleman and Howard L. Metz to the Maryland Workers’ Compensation Commission.

Commissioner Kittleman graduated with honors from the University of Maryland School of Law. After receiving his J.D., he joined the law offices of Smith, Somerville & Case. In 1991, he joined Herwig & Humphreys, where he later became a partner, and then went on to work with Godwin, Erlandson, Vernon & Daney, as an "of counsel" attorney. Throughout his twenty-five (25) years of legal practice, Commissioner Kittleman concentrated his practice in the defense of workers’ compensation claims in Maryland and the District of Columbia. He also served as a state senator, worked on the Workers’ Compensation Oversight Committee, the Howard County Council, and served as the Howard County Executive.

Commissioner Metz graduated from Rutgers, The State University of New Jersey School of Law in 1985. He then spent over thirty (30) years as a workers’ compensation and litigation attorney in Maryland, Pennsylvania, New Jersey, and the District of Columbia. During this time, he briefed and argued cases before the Maryland Court of Appeals, Maryland Court of Special Appeals, and the U.S. Court of Appeals for the Fourth Circuit. Thereafter, he served as a mediator for the Circuit Courts for Frederick and Washington Counties in Maryland. Commissioner Metz also served as President of Executive Board of the Bar Association of Frederick County in 2013, and continues to serve as a member of the Board today. In addition, he continues to provide lectures and continuing legal education instruction in the areas of workers’ compensation law and mediation practice.

Commissioners Kittleman and Metz will replace retiring Commissioners Patricia Adams and Jeffrey Herwig.

-Ashley Bond, Associate Attorney

Thursday, November 8, 2018

Governor Hogan Appoints Three New Maryland Judges

Governor Larry Hogan recently appointed three new judges to the Circuit Court for Anne Arundel County—Judge Pamela Alban; Judge Elizabeth Morris, and Judge Robert Thompson—to fill the vacancies left by retiring judges. 

Judge Pamela Alban, prior to her appointment, worked as an Assistant State’s Attorney in the Anne Arundel County State’s Attorney’s office. During her career, she served as the Division Chief of the Special Victims Unit as well as the Division Chief of the Sex Offense and Child Abuse Unit. Judge Alban graduated with a Bachelor of Arts from the University of Miami and a Juris Doctor from the Georgetown University Law Center. 

Judge Elizabeth Morris worked as an attorney with the National Security Agency before her appointment. She also previously served as an Assistant Attorney General in the Contract Litigation Division and worked for the Maryland Department of Labor, Licensing, and Regulation as well. Judge Morris received her Bachelor of Arts from the Indiana University of Pennsylvania and her Juris Doctor from the University of Maryland School of Law. She is the first African American female judge to be appointed to the Anne Arundel County Circuit Court.

Judge Robert Thomas was a solo practitioner with his own firm and also served as a volunteer lawyer with the Maryland Volunteer Lawyers Service. He earned his Bachelor of Arts from Northwest Nazarene University, his Master of Arts in Philosophy from St. John’s College, and a Juris Doctor from the University of Baltimore Law School.

Congratulations to the new Judges!

Monday, October 1, 2018

Maryland Court of Special Appeals Reviews Occupational Diseases

Baltimore County v. Michael Quinlan, No. 319, Sept. Term 2017 

            The Maryland Court of Special Appeals recently held that an employee presented sufficient evidence at trial to establish that the degenerative menisci tears he suffered were an occupational disease for which he may recover under the Labor & Employment Article § 9-502(d)(1)(i) of the Maryland Code.
            Michael Quinlan (“Quinlan”) filed a claim with the Workers’ Compensation Commission, alleging that he developed meniscal tears in his right knee due to his job duties as a paramedic/firefighter.  After a hearing, the Workers’ Compensation Commission determined that  Quinlan did not sustain an occupational disease arising out of, and in the course of, employment.  Quinlan appealed.

            The matter went before a jury in the Circuit Court for Baltimore County.  There, Quinlan testified that he worked for the Baltimore County Fire Department as a paramedic for twenty-four (24) years.  That job required Quinlan to work long shifts, in which there were between 26-30 calls per day.  During those calls, Quinlan often had to kneel, and when he did so, he knelt down on his right knee.  In 2005, Quinlan injured his right knee while assisting a patient at work.  In 2014, Quinlan returned to his doctor for further knee problems.  The doctor found tears in Quinlan’s medial and lateral menisci.  Quinlan underwent a partial meniscectomy, and then returned to work.

            Quinlan called Dr. Barbara Cochran (“Dr. Cochran”), a specialist in internal medicine, occupational medicine, psychiatry, and pulmonary medicine, to testify.  Dr. Cochran explained that tears of the menisci, as Quinlan suffered from, are part of the continuum of osteoarthritis, and that osteoarthritis is a cumulative injury.  Dr. Cochran further explained that understanding a patient’s job functions, shift work, and whether he or she takes breaks is vital to forming a reliable opinion relating to osteoarthritis.  Dr. Cochran also testified that medical literature showed that in general,  more physically demanding jobs and people who do more squatting and kneeling are at a greater risk for osteoarthritis and problems in their knees.  Finally, Dr. Cochran testified that Quinlan’s essential job functions, which included repetitive kneeling, bending, and stress on the knee, are the causes of Quinlan’s osteoarthritis.

            Baltimore County called orthopedic surgeon, Dr. Richard Hinton (“Dr. Hinton”) to testify.  Dr. Hinton performed an independent medical examination of Quinlan and found Quinlan to have a previous partial meniscectomy, lateral meniscectomy, early arthritis in the medial side of the knee, and mild arthritis behind the knee cap.  Dr. Hinton, however, claimed he could not relate the meniscus tears directly to Quinlan’s job because there were no specific incidents or cumulative symptomatic episodes on the job.  Dr. Hinton agreed that the medical literature showed that people in more physically demanding jobs and people who do more squatting and kneeling have a greater risk of osteoarthritis and problems in their knees.  In Dr. Hinton’s opinion, however, the medical research did not yet explain why that portion of the population was more at risk, but he speculated that it could be limited to more definable injuries, less access to health care, smoking, or weight.  Finally, Dr. Hinton described Quinlan’s occupational injury as a potential or arguable cause of his arthritis, though not the primary cause.

            The jury returned a verdict in favor of Quinlan.  Baltimore County appealed, arguing that both doctors’ testimonies made clear that osteoarthritis and degenerative knee tears are not diseases inherent in Quinlan’s employment, but rather, are diseases of life.  Baltimore County further argued that a disease cannot be occupational if it is wide spread in the population and is not inherent to the occupation.

            Quinlan countered arguing that the proper analysis is not whether a disease is labeled occupational or not, but rather if the basic job responsibilities exposed an individual to conditions that could lead to the disease.  Quinlan did not dispute that there were potentially other causes in addition to his work that could have led to his diagnosis because, by law, there can be more than one cause for the degenerative tears as long as his work contributed in part. 

            The Court of Special Appeals found that Quinlan presented sufficient evidence to prove that his menisci tears were an occupational disease.  The Court of Special Appeals further indicated that Baltimore County did not preserve its legal argument that Quinlan’s injuries were injuries of life.  Even if Baltimore County did preserve the argument, the Court of Special Appeals indicated that it would not find the argument convincing because it is the risk factors, not the disease, that must inhere in the nature of the employment.  Therefore, the judgment was affirmed.

-Ashley Bond, Associate Attorney

Tuesday, September 18, 2018

“Analytical Gaps” Analysis Re-examined by Maryland Court of Appeals

Stanley Sugarman, et al. v. Chauncey Liles, Jr., July 31, 2018 (Court of Appeals of Maryland)

Last summer, the Maryland Court of Appeals issued an opinion in Rochkind v. Stevenson, 454 Md. 277, 164 A.3d 254 (2017), holding that the trial court abused its discretion when it admitted expert testimony linking a plaintiff’s ADHD diagnosis with lead poisoning when the expert relied on studies that did not adequately demonstrate a causal link between lead exposure and a general and specific ADHD diagnosis.[1]  Judge Adkins wrote for the Rochkind Court, concluding that the expert’s testimony suffered an “analytical gap” between the data relied upon by the expert and expert’s proffered testimony, and, therefore, should not have been admitted.  The Maryland Court of Appeals recently issued an opinion in Stanley Sugarman v. Chauncey Liles, Jr. in which the Court reexamined its analysis in Rochkind.

            The underlying facts and procedure in Rochkind and Sugarman are strikingly similar.  Both were lead-paint tort suits filed by minors alleging that lead exposure caused cognitive defects in the form of attention decrements.  In both trials, the respective plaintiffs introduced expert testimony from pediatricians who reviewed, relied upon, and based their respective opinions on findings contained in the Environmental Protection Agency’s publication entitled “Integrated Science Assessment for Lead” (“EPA-ISA”), which, on appeal, was the subject of intense scrutiny.

            The EPA-ISA is an integrated science assessment that collected, reviewed, synthesized, and broadly evaluated high quality epidemiological studies and their various health outcomes.  The EPA-ISA analysis reveals a causal relationship between lead exposure and attention decrements, impulsivity, and hyperactivity in children.  The EPA-ISA does not specifically identify types of attention decrements found, nor does it specifically discuss processing speed or auditory encoding.  The EPA-ISA also does not make a general or specific causal connection between lead exposure and certain neuropsychological disorders such as ADHD.

Following verdicts in favor of the plaintiffs in the Rochkind and Sugarman trials, the respective defendants appealed.  On appeal, the Rochkind and Sugarman defendants argued that the trial court erred in admitting the plaintiffs’ respective pediatric experts’ causation opinions for lack of an adequate factual basis pursuant to Maryland Rule 5-702.  Unlike the outcome in Rochkind, however, the Sugarman opinion affirmed the trial court’s decision to permit the causation testimony of the plaintiff’s pediatric expert.  This decision hinged on critical distinctions in the analyses and opinions offered by the experts in each case.

In Rochkind, the plaintiff’s pediatric expert testified that that the plaintiff’s lead poisoning was a significant contributing factor to all of the plaintiff’s neuropsychological problems, including the plaintiff’s ADHD diagnosis.  The Maryland Court of Appeals noted that the studies in the EPA-ISA do not go so far as to state that lead exposure causes ADHD.  The Court further noted that the EPA-ISA recognized that an ADHD diagnosis is also attributable to factors such as socioeconomic status and parenting.  Without any other scientific evidence or epidemiological studies to support the opinions that lead exposure causes ADHD in general, the Rochkind Court held that the plaintiff’s pediatric expert’s testimony was not based an adequate supply of data as required by Maryland Rule 5-702.

In the Sugarman trial, the plaintiff introduced the findings of a neuropsychological examination showing the plaintiff exhibited deficits in auditory encoding of information and information processing speed.  The plaintiff’s pediatric and neuropsychological experts testified that these deficits are factors of attention, within the realm of general attention deficits, and the literature states that general attention deficits can result from lead exposure.  The plaintiff’s pediatric expert further opined that the cognitive deficits identified by the neuropsychological exam were caused by the plaintiff’s early lead exposure and are permanent.  In contrast with Rochkind, the Sugarman plaintiff offered no expert testimony on whether lead exposure caused or contributed to any specific learning disability or behavioral disorder.

The Maryland Court of Appeals held that the Sugarman plaintiff’s pediatric expert’s opinions were supported by the findings in the EPA-ISA, and were based on an adequate factual basis comporting with Maryland Rule 5-702.  The Court explained that the Sugarman pediatric expert was permitted to reasonably extrapolate from existing data in support of the expert’s opinions, which is, in fact, what the Sugarman pediatric expert did when analyzing the results of the plaintiff’s neuropsychological examination results in concert with the review of the EPA-ISA.  The Court distinguished Sugarman from Rochkind noting that the Sugarman plaintiff’s experts testified to generalized attention deficits that the EPA-ISA identified as being caused by lead exposure, rather than offering opinions that the lead exposure caused or contributed to specific diagnoses or disorders.  Accordingly, the Court found that the pediatric expert’s opinions in Sugarman did not suffer the same “analytical gap” as the opinions of the pediatric expert in Rochkind.

A review of Rochkind and Sugarman serves as an important reminder for practitioners when vetting experts to thoroughly examine the literature upon which experts base their opinions to ensure there are no perceived “analytical gaps” that threaten to invalidate the admissibility of the experts' critical opinions.

-          -Benjamin A. Beasley, Associate Attorney

[1] For more information on the Rochkind decision, please read the article submitted by RSRM Associate Attorney, Benjamin A. Beasley, located here.