Pepsi Bottling Group v. Plummer
130 A.3d 1047
Md. Ct. Spec. App.2016Background
- Derek L. Plummer slipped at work in 2012, claimed right leg/knee and right foot/ankle injuries, filed for workers’ compensation; a WC commissioner awarded partial impairment with apportionment for preexisting condition.
- Plummer sought judicial review in circuit court; trial was set after Pepsi Bottling Group (appellants) demanded a jury and designated experts for the contested permanent partial disability issue.
- Appellee’s expert, Dr. Michael Franchetti, had earlier entered a Board of Physicians consent order admitting violations and placed on probation; the consent order was publicly posted pursuant to statute.
- At a de bene esse deposition, Dr. Franchetti refused to answer questions about the Board proceedings invoking HO § 14‑410(a) (bar on discoverability/admissibility of Board proceedings); appellants moved to strike the deposition or compel answers; appellee moved in limine to exclude any mention of the Board matter.
- The circuit court denied the motion to strike, denied compulsion, and granted the motion in limine, ruling HO § 14‑410(a) bars admission or use of Board proceedings or orders in any civil action; Dr. Franchetti’s deposition (with the unanswered questions) was played at trial.
- Appellants also requested a non‑pattern jury instruction distinguishing "injury" from "disability;" the court declined to give it, and appellants failed to take a timely exception. After a jury verdict for Plummer, appellants’ motion for new trial was denied and they appealed.
Issues
| Issue | Appellants' Argument | Appellee's Argument | Held |
|---|---|---|---|
| I — Whether HO § 14‑410(a) bars cross‑examination of a physician expert about Board disciplinary proceedings | § 14‑410(a) applies only to documentary evidence and civil malpractice suits; it does not bar questioning an expert witness in other civil actions | § 14‑410(a) plainly bars admission and discoverability of Board proceedings and orders in any civil action, including use in cross‑examination | Held: § 14‑410(a) applies to any civil action and bars testimonial inquiry into Board proceedings; trial court did not err |
| II — Whether consent to a public Board order waived the § 14‑410 privilege | Dr. Franchetti’s signed consent and the order’s public posting waived the privilege and made the order admissible | The consent did not expressly stipulate admissibility in future civil actions; public status does not override § 14‑410(a) | Held: waiver not shown; public posting does not negate § 14‑410(a); privilege stands |
| III — Whether the court erred by refusing a special jury instruction distinguishing "injury" and "disability" | Instruction was a correct statement of law and applicable to the issues of permanent partial disability | Instruction was unnecessary and potentially confusing because pattern instructions adequately covered disability/impairment | Held: Issue not preserved—no timely objection/exception after charge; therefore not reviewable |
| IV — Whether denial of motion for new trial was erroneous | Trial court’s evidentiary rulings regarding the Board proceedings prejudiced appellants’ case and warranted a new trial | Ruling was correct under § 14‑410(a); no abuse of discretion | Held: Denial of new trial affirmed (no abuse of discretion) |
Key Cases Cited
- Lockshin v. Semsker, 412 Md. 257 (2010) (principles of statutory interpretation; start with plain meaning)
- Unnamed Physician v. Comm’n on Medical Discipline, 285 Md. 1 (1979) (interpretation of predecessor statutes regarding discoverability of peer review records)
- St. Joseph Med. Ctr., Inc. v. Cardiac Surgery Assocs., P.A., 392 Md. 75 (2006) (privilege for medical review committee records applies to "any civil action")
- Certain Underwriters at Lloyd’s, London v. Cohen, 785 F.3d 886 (4th Cir. 2015) (FOURTH CIRCUIT: § 14‑410 bars admission of Board orders in non‑malpractice civil litigation)
- Gly Constr. Co. v. Davis, 60 Md. App. 602 (1984) (discusses distinction between "injury" and "disability")