Ritchie Shoemaker, MD Rejected Again as Court Testimony ExpertIN THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA ORDER GRANTING IN PART DEFENDANT'S MOTION IN LIMINE Before the court is Plaintiff's Motion in Limine to Exclude Plaintiff's Expert Dr. Ritchie Shoemaker; Plaintiff's Opposition; Defendant's Reply; Plaintiff's Surreply; Plaintiff's Submission Regarding the Proposed Testimony of Dr. Shoemaker; and Defendant's Response to Plaintiff's Submission Regarding the Proposed Testimony of Dr. Ritchie Shoemaker. The court conducted a hearing on July 25, 2008, concerning the pending motion. In this case Plaintiff seeks damages from Defendants for alleged injuries he contends were caused by exposure to mold in an apartment he formerly rented from Defendants. In their motion in limine, Defendants seek to exclude the testimony of Plaintiff's expert Dr. Ritchie Shoemaker on grounds that his opinions fail to meet this jurisdiction's standards for admissibility articulated in Frye v. United States, 293 F. 1013 (D.C. Cir.1923) in three areas. Defendants claim: 1) Dr. Shoemaker has diagnosed Plaintiff with a condition, "chronic biotoxin associated illness" caused by mold exposure, which is not a medical condition generally recognized or accepted within the medical community; 2) Dr. Shoemaker's method of diagnosing this purported condition, the presence of three of six biomarkers — chemical features that indicate the presence or progress of disease in the body — is not accepted within the medical community; and 3) Dr. Shoemaker's course of treatment for this purported condition, prescription of the drug Cholestryamine, is not generally accepted within the medical community. In support of their motion, Defendants point to opinions by other courts around the country excluding Dr. Shoemaker's testimony, to an opinion by a judge of this court within the last year, Wright v. Fort Lincoln Realty Co., Civ. No. 03-ca-4555 (D.C. Sup.Ct. Oct. 15, 2007, excluding Dr. Shoemaker's opinions on grounds that they are not generally accepted within the medical or scientific community, applying a Frye analysis; and an opinion of Judge Huvelle from the United States District Court for the District of Columbia in July of this year, Young et. al. v. Burton, et. al, 2008 U.S. Dist. Lexis 57446 (D.D.C. July 22, 2008), excluding Dr. Shoemaker's testimony as insufficiently grounded in scientifically valid principles and methods to satisfy Daubert v. Merrell Dow Pharms.,Inc., 509 U.S. 579 (1993). Defendant responds by contending that Dr. Shoemaker is not an "expert" witness, meaning he is not being offered to testify as to facts and opinions that he acquired or developed in anticipation of litigation or for trial. Instead, Defendant contends Dr. Shoemaker obtained and developed his information and opinions in the course of his treatment of Plaintiff. Thus, according to Plaintiff, Dr. Shoemaker became an actor or viewer who should be treated as an ordinary witness rather than as an expert, citing Structural Preservation Systems, Inc. v. Petty, 927 A.2d 1069, 1073 (D.C. 2005); Aon Risk Services, Inc. v. Estate of Marshall V. Coyne, 915 A.2d 370, 376 D.C. 2007); Gubbins v. Herson, 885 A.2d 269, 277 (D.C. 2005); Safeway Stores, Inc. v. Buckmon, 652 A.2d 597, 606 (D.C. 1994); Richbow v. District of Columbia, 600 A.2d 1063 (D.C. 1991); District of Columbia v. Howard, 588 A.2d 683, 692-93 (D.C. 1991); Adkins v. Morton, 494 A.2d 652, 657 (D.C. 1984) ("the Actor and Viewer" cases). Under Defendant's theory, while Frye and its progeny require that an "expert" show that a new scientific theory has gained scientific acceptance; a treating physician such as Dr. Shoemaker does not have to be approved by the court and should not be subjected to a Frye challenge. The parties have skirmished over whether Dr. Shoemaker is an expert or a treating physician. For example, Defendants point to the fact that Plaintiff identified Dr. Shoemaker as an expert in a 26(b)(4) statement, otherwise referred to him during this litigation as an expert witness; and was sent to Dr. Shoemaker by Plaintiff's lawyer, whom Plaintiff had retained to bring suit against Defendants. Plaintiff responds that Plaintiff sought out Dr. Shoemaker for treatment, and Dr. Shoemaker was not hired as an expert. [DECISION APPEARS TO REPORT HE MIGHT LATER POSSIBLY COMMENT ON DAMAGES AND WAS NOT AN ACCEPTED AS AN EXPERT FOR THE TRIAL]. For the foregoing reasons, it is this 15th day of September, 2008, hereby ORDERED that Defendants motion in limine concerning Dr. Shoemaker is GRANTED IN PART. Because Plaintiff has elected not to proceed with a Frye hearing [FEAR OF LOSING? NOT KNOWN] Dr. Shoemaker will not be permitted to provide testimony about his expert opinions in this case, even those obtained or developed during the course of treating Plaintiff, including but not limited to, opinions about his diagnosis of Plaintiff's illness; the cause or causes of Plaintiff's illness; and the reasons for the treatment he provided for Plaintiff's illness. FURTHER ORDERED that in light of the fact that Dr. Shoemaker's testimony is being offered on the issue of damages, the court will reserve ruling on whether, and if so about what, Dr. Shoemaker will be permitted to testify until after the liability portions of the trial. The court is bifurcating the damages portion of the trial from the part of the trial that concerns liability. ETC... _______________________________ Judge Ronna Lee Beck EDITS, BOLDING AND UNDERLINING NOT FOUND IN PUBLIC DOCUMENT |
