ment or heart attack, but, rather, was de- cided almost fortuitously, on the basis of which of the two competing schools of medical thought the lay referee or appeals board decided to endorse in a particular case. Id, Cal.App.3d at 110. Moreover, in Bechtel v. Board of Ret. of Contra Costa, 102 Cal.App.3d 10, 162 Cal.Rptr. 154 (1980), the Court, again faced with facts remarkably similar to those in the above-mentioned cases, as well as in Shankle, ultimately concluded that “
...it has been held that the statutory presumption, while rebuttable in a particular case, cannot be rebutted by the testimony of a physician who refused to accept the legislative premise that stress and tension do cause heart trouble.” Id. Cal.App.3d at 17. It is not, however, only in California that
Courts have consistently rejected expert tes- timony like Dr. Wasserman’s’ in Shankle, when such testimony contradicts a legisla- tive presumption. Rather, this position is consistently echoed in other jurisdictions which have visited the issue. For example, in Linnell v. City of St. Louis Park, 305 N.W.2d 599 (Minn.1981), the Supreme Court of Minnesota, in a persuasive discus- sion of the issue, stated: We construe section 176.011(15), [sec- tion providing for presumption of heart disease similar to that in Shankle], how- ever, to embody the legislature’s presumably informed acceptance of the thesis that the occupations of firemen, policemen, and other occupations speci- fied in that provision are likely to involve greater stress, whether physical or emo- tional, or both, than other occupations and its acceptance also of the thesis, widely but not uniformly held, that such stress is causative of or contributory to the development of the specified heart and lung
diseases...It would seem that the presumption, if it is to have its in- tended effect, should not be rebuttable by medical opinion denying generally the correctness of the thesis accepted by the legislature.
Id., 305 N.W.2d at 601. [Individual cita- tions omitted][Emphasis supplied]. Likewise, in Cunningham v. Manches-
ter Fire Department, 525 A.2d 714 (N.H. 1987), the Supreme Court of New Hamp- shire held that expert testimony must cite non-work related factors which might have precipitated the fire fighter’s heart disease to rebut the statutory presumption of com- pensability, stating “
...basic logic dictates that [the] presumption stating that a dis- ease is job-related can only be rebutted by evidence that the disease is not job related. Any other interpretation would subvert the manifest intent of the provision.” Id. at 718.
Winter 2000
While there is no question that the pre- sumption is rebuttable (the statute states very clearly that it is), there are limits as to how it can be rebutted. For example, an expert can testify as to other causes which may have brought about the heart disease and/or hypertension, but an expert should not be permitted to eviscerate the very heart of the presumption by testifying that the Legislature simply “got it wrong.” There is a huge difference between medical testi- mony concerning other factors that could have contributed to Officer Shankle’s heart disease, and Dr. Wasserman’s testimony that Officer Shankle could not have suffered his present affliction due to his occupation, based on Dr. Wasserman’s opinion that stress is not a factor in the development of heart disease. Even though higher Maryland Courts
have not dealt directly on all fours with the issue presented in Shankle, the Maryland Court of Appeals has acknowledged that the Maryland Legislature, having grappled with the choice to enact the presumption in LE 9-503, has chosen to do so. Thus, the Court has held that “...[w]hile it may be true that the stress of being a fire fighter/paramedic neither causes or leads to coronary artery disease or heart disease, the legislature has determined otherwise.” Montgomery County v. Pirrone, 109 Md.App. 201, 216, 674 A.2d 98 (1996). While our laws and statutes may be open to interpretation, as the Claimant summarized in his Motion To Exclude Testimony, they are not open to complete disregard. In addition to excluding Dr. Wasserman’s testimony because it flies in the face of the clear legislative intent of LE 9-503, the Claimant also argued in his Motion that Dr. Wasserman’s testimony should be excluded because it was irrelevant and confusing, and, therefore, its probative value was far out- weighed by the danger of unfair prejudice, confusion, and the very high likelihood that it would mislead the jury. Under Mary- land Rule of Civil Procedure 5-403, although relevant, evidence may be excluded if its probative value is substantially out- weighed by the danger of unfair prejudice, confusion of issues, or misleading the jury. In Shankle, Dr. Wasserman’s proposed tes- timony directly contradicted this state’s controlling law on the topic at issue (i.e., presumption of compensability that stress can cause heart disease), and the jury might well become confused as to the correct stan- dard to use in deciding the case. Indeed, perhaps that was the very rationale for the Employer/Insurer/Appellant attempting to elicit such testimony. What is clear is that Dr. Wasserman simply does not recognize that an occupation, and the stresses inher-
Trial Reporter
ent in an occupation, can lead to heart dis- ease. Conversely, the Maryland Legislature and appellate courts have consistently said otherwise.
When faced with the question of whether or not to exclude evidence, Mary- land courts have held time and time again that a court is required to balance the pro- bative value of such evidence against its’ prejudicial effect. If Dr. Wasserman’s testi- mony were permitted, a jury would be in the impermissible position of having to choose between the Legislature’s intent in enacting the law, and Dr. Wasserman’s opin- ion that the standard adopted by the Legislature is incorrect.
It is no stretch of
the imagination that a jury could easily be confused by such conflicting testimony and the case could be decided based on an in- correct interpretation of the controlling law. This is exactly what Rule 5-403, and LE 9- 503 for that matter, attempt to avoid. There should be no confusion allowed here inas- much as it is the Legislature, not an insurance company’s experts, which enact the laws. In Maryland, our Legislature has clearly chosen that the presumption will be the law of this State. Generally, an expert witness may not give opinions on questions of law. Franch v. Ankney, 341 Md. 350, 670 A.2d 951 (1996); 6 Lynn McLain, Maryland Evi- dence, Section 702.1, at 219-20 [citing Maryland cases]; 1 McCormick on Evi- dence, Section 12 at 50 (John W. Strong, editor, 4th ed. 1992). Dr. Wasserman’s tes- timony, which is contrary to Maryland’s presumption, is his opinion on the law of the state, and as such, is prohibited. In the Franch case, supra, the Court of Appeals held that the trial judge had correctly ruled that since the expert’s testimony was predi- cated upon a faulty interpretation of Maryland law, such testimony had to be struck. Id, at 363-364. Inasmuch as Dr. Wasserman’s’ opinion is based upon a premise which is both faulty and contrary to Maryland law, his testimony was prop- erly struck by Judge Stevenson. Of course, with the issue now on appeal
before the Court of Special Appeals, this story is not yet over. In the end, though, if the Court of Special Appeals should choose not to uphold the trial court’s decision on the Motion, the significant advances made in recent years to protect the public safety employees who guard our homes and lives with their own will be sadly compromised, and the presumption, carefully crafted by the Maryland Legislature after a long and difficult battle, will be gutted by a parade of “experts” who are paid to testify that they do not believe in it.
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