281 A.3d 692
Md.2022Background
- In January 2016 Dr. Bennett Frankel extracted Casey Deane’s wisdom teeth; she awoke with numbness and loss of taste in her tongue.
- Follow-up notes by Dr. Frankel and later Dr. Clay Kim recorded reported improvement; Deane disputes those entries and says symptoms persisted.
- About two years after surgery Deane was examined by Dr. Richard Kramer, who performed neurosensory testing and concluded bilateral neurotmesis (complete lingual nerve transection) and permanence; Dr. Armond Kotikian would tie that diagnosis to breaches in surgical technique and delayed referral.
- Defendants moved for summary judgment arguing the experts’ opinions were inadmissible (analytical gap, reliance on subjective complaints, failure to review treating records) and that the injuries are recognized risks that could occur absent negligence; the trial court excluded the experts and granted summary judgment.
- The Court of Special Appeals reversed, holding the trial court improperly resolved credibility and record-review issues as grounds to exclude experts.
- The Court of Appeals vacated the trial court judgment, held the exclusion was error, clarified application of Meda, and remanded for further proceedings under this Court’s post‑Rochkind (Daubert) framework, to be assigned to a different judge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of expert testimony / exclusion on summary judgment | Kramer and Kotikian proffered admissible expert opinions based on neurosensory testing and clinical reasoning; credibility disputes go to the jury | Trial court properly excluded experts as unreliable (analytical gap, subjective basis) and therefore plaintiff cannot meet prima facie case | Trial court abused discretion by resolving disputed facts/credibility and excluding experts; exclusion overturned |
| Must an expert review treating physicians’ records to be admissible? | Not required; failure to review goes to weight, not admissibility; experts may rely on facts from various sources | Expert testimony unreliable if expert did not review contemporaneous treating notes that contradict the expert’s assumptions | Court: failure to review records goes to weight/credibility, not per se inadmissible; trial court erred in excluding on that basis |
| Use of inferential expert testimony when injury is a known risk (Meda) | Meda allows experts to infer negligence from circumstantial evidence if each inference is supported by expert reasoning | If the injury is a recognized complication that can occur without negligence, an inference-of-negligence theory is inadmissible | Meda was misapplied by trial court; experts may infer negligence here and jury must resolve credibility and competing interpretations |
| Contributory negligence determination at summary judgment (failure to attend follow-ups) | Whether Deane’s missed follow-ups were unjustified is a fact for the jury; cannot be resolved as matter of law on this record | Plaintiff’s failure to attend follow-ups foreclosed timely referral and bars recovery as a matter of law | Trial court improperly made factual/contributory negligence findings on summary judgment; those issues belong to jury |
| Standard for admissibility on remand (Rochkind/Daubert) | Experts were improperly excluded under the pre-Rochkind analysis; trial should proceed with admissible expert testimony evaluated under Rule 5‑702 | Defendants may relitigate admissibility under Rochkind/Daubert factors on remand | Court remanded for further proceedings consistent with Rochkind (adopted Daubert factors) and permitted the trial court discretion to address admissibility and briefing; case reassigned to a different judge |
Key Cases Cited
- Meda v. Brown, 318 Md. 418 (1990) (experts may infer negligence from circumstantial evidence in medical malpractice when reasoning is supported)
- Rochkind v. Stevenson, 471 Md. 1 (2020) (Maryland adopts Daubert-style, flexible factors for Rule 5‑702 reliability review)
- Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) (federal reliability factors superseding Frye general-acceptance test)
- General Electric Co. v. Joiner, 522 U.S. 136 (1997) (analytical-gap concept limits expert extrapolation)
- Blackwell v. Wyeth, 408 Md. 575 (2009) (discusses analytical-gap issues under Frye-Reed jurisprudence)
- Rodriguez v. Clarke, 400 Md. 39 (2007) (summary judgment in malpractice requires admissible expert proof of standard, breach, causation)