*1 976A.2d300 ay L an BROWN v. CO.,
The DANIEL REALTY et al. 77, Sept. Term,
No. 2008. Appeals Maryland. Court of
July 2009. *4 (Saul Brian Associates, S. Brown E. Kerpelman & P.A. of Baltimore), brief, on petitioner. (Michele
Thomas J. Cullen R. Kendus and Derek M. Stikel- Goodell, DeVries, Dann, eather of Baltimore), Leech LLP & brief, for petitioner. BELL, C.J., Argued HARRELL, BATTAGLIA, before GREENE, MURPHY, WILNER, (Retired, ALAN M. Specially Assigned), JJ.
HARRELL, J.
Facts (“Petitioner” on 17 was born “Lanay”),1 Brown Lanay aunt, birth, her her maternal Catherli- 1990. December Since life, in she early Lanay’s At time raised her. some Queen, na Road on Reisterstown property her aunt moved into and (“the they where resided Subject Property”),2 Baltimore City there, lived Lanay Queen and Ms. until 1994. While Company Daniel by Realty owned Subject was Property others, Wendy Daniel and managed by, among allegedly and 1995, Dan- In October Perlberg (collectively “Respondents”). thereafter, no Respon- Subject Property; Realty iel sold no They knowledge in it. had retained an interest dent Subject Property what, repairs performed if were any, 1995. after out of the Queen and Ms. moved Lanay
At after point some Lanay that suspicious became Queen Ms. Subject Property, by ingesting peeling to lead exposed have been may Subject Proper- residing while at paint lead-based flaking the advice of counsel. sought she ty. Accordingly, Environmental hired ARC Queen and Ms. Lanay counsel for firm, the rooms to test (“ARC”), consulting environmental an for the Subject Property presence and structures of of lead- presence tests revealed ARC’s paint. lead old, later, years when Lanay Three years based paint. friend, Respondents, alleging sued as her next Queen, Ms. paint flaking lead-based Lanay exposed peeling permanent caused her suffer Subject which Property sued Re- right, in her own also Queen, damage. brain expenses of medical as a result seeking damages spondents, for severe Lanay, for as well as caring she incurred emotional distress. Lanay her refer to Brown Meaning disrespect, at times we shall
1. no first name. Lanay lived at case was whether disputed facts in this 2. One of the newborn, poisoned possibly was where she address as a another chips ingesting paint or dust. lead-based bene esse conducted a de and Ms. Lanay Counsel *6 Cavaliere, an environ- President, Shannon of ARC’S deposition in prepared that ARC report identified the expert. mental He Subject Property the testing of its 1999 as the result May ARC (“the The Un-Redacted Report”). ARC Un-Redacted Data Sheet” Testing Paint included a “Lead-Based Report conducted the of the technicians who summarizing findings the of the tested included descriptions The data sheet testing. (if detected, and structures, any) of lead the levels rooms and the tested locations. With paint of the the condition Subject tested at the of two of the 38 locations exception the condi- Report ARC described Property, Un-Redacted “intact,” the paint that none of meaning of the as paint tions from flaking, separating or otherwise chipping, peeling, locations where the was not paint the substrate. The two “fair,” meaning defined as that 10% “intact” were described as cracked or worn. or less of surface was his technicians used an XRF3 explained Mr. Cavaliere that machine, top layer lead below the of capable detecting of him to conclude that two-thirds of tested which led paint, paint. contained lead-based Subject Property locations in the cross-examination, conceded that an XRF machine does he On in the detected lead is the outermost not ascertain whether anywhere specifi- of or paint, layer paint, the lowest layer Thus, at one painted in a structure or surface cally between. over one subsequently painted time lead-based but paint, with a paint, yield positive more times with unleaded could or acknowledged Mr. by an XRF machine. Cavaliere reading here) (not capable other devices used are testing detected lead is to the surface of a determining how close the tested location. on 19 2006 in the Circuit Court jury began trial June Queen nine later. Ms. City days
for Baltimore and concluded that, case-in-chief when she and during plaintiffs’ testified Subject was in Property, paint first moved into the Lanay X-ray 3. fluorescence. condition; however, later, five six
good months the paint began peeling chipping several locations. cross- On examination, Respondents Queen with her impeached pre- so, trial deposition testimony. doing they inferentially Subject her memory Property by pointing undermined Subject out regarding Proper- inconsistencies who lived at ty with her and when the оccurred. Lanay alleged exposure
Lanay and Ms. did not offer the de bene esse thereof) (or any part of Mr. in their Cavaliere case- instead, in-chief; they Paulson, called Dr. an expert Jerome childhood lead Dr. Paulson a poisoning. pediatrician professor of environmental and health at occupational of Public Health George Washington University. School Based on the results of he testing, opined Lanay ARC’S *7 was exposed paint Subject to lead-based at the Property. ARC, commented, he Referring May testing by “we have an inspection documentation from done of the home surface, at that that there lead on paint address was on that multiple paint surfaces at address. Lead-based was found at over 20 sites at that address when the home was inspected May in of 1999.” for Lanay Counsel and Ms. approached then Dr. Paulson with a of the 1999 copy ARC however, report; in this copy, description of the condition paint of the at the tested locations data sheet was Version”).4 (“the following redacted Redacted exchange occurred: Paulson, Dr. I’m showing you
[Plaintiffs’ what counsel:] has been marked as Plaintiffs’ 1 for Exhibit Number identi- you fication. tell me that’s a fair yet Can and accurate copy report you redacted of the relied to deter- upon Subject mine that there was lead paint Property]? [the Objection. He said copy? [Defendants’ counsel]: redacted I I don’t want don’t want—to out here but— speak surprise Respon- 4. The existence of the Redacted Version was not during dents. It had been marked for identification the de bene esse deposition of Mr. Cavaliere. Honor, is, he his My problem your gave expert witness which I’m rely upon, materials to he did and entitled see in Not in its form that he received it. a redacted form— right. you All are me Judge]: telling
[Trial Wait. So what is that now you were—Dr. Paulson has seen the un- redacted version of the exhibit? That’s true.
[Plaintiffs’ counsel]: Judge]: Why did redacted you give [Trial him a version? Because the that we portion [Plaintiffs’ counsel]: redacted pertains to the condition of the property, physical actual itself paint condition in five years— ... pertains to condition of property, paint. [I]t paint peeling, Whether the chipping, flaking. Judge]: why [Trial But him a you would show document with some information omitted? Honor, point, your
[Plaintiffs’ Because that’s the counsel]: why it’s redacted. The condition paint 1999— You did not him Judge]: [Trial want to consider that? It has with nothing [Plaintiffs’ counsel]: to do the condition of the paint in 1990 when Lanay living there. And, so, Judge]: Okay.
[Trial your problem is[?] *8 all, First [Defendants’ counsel]: this witness has seen an un-Redacted copy— when Judge]:
[Trial And was that? file [Defendants’ counsel]:—that was in his when he made his opinion this case. Judge]: during deposition
[Trial So he referred to an un- redacted copy? records,
[Defendants’ counsel]: It was in absolutely. his So that’s an incorrect statement. I’m to entitled show the jury Now, what he rely saw to on. He accurate. saw the un- redacted version— counsel] to let going [Plaintiffs’ I’m Judge]: Okay.
[Trial him on copy. you get When a redacted Paulson] hand [Dr. copy. him an un-redacted can show you cross Okay. counsel]: [Defendants’ counsel], may pro- you All Judge]: right [Plaintiffs’ [Trial ceed. Paulson], 1 the is Exhibit Now [Dr. counsel]:
[Plaintiffs’ to determine you used report version of redacted Subject Property]? at paint [the was lead based that there Yes. [Dr. Paulson]: again, of that report was the date What counsel]:
[Plaintiffs’ Dr. Paulson? 26, 1999. May Paulson]:
[Dr. you you question. Let me ask this Can counsel]: [Plaintiffs’ use a test jury you how can the members of explain exposed Lanay whether in 1999 to determine for lead in 1990 to 1994? back on a wall placed that’s paint The lead-based Paulson]:
[Dr. time. deteriorate over So floor, jam does not or a or a door is, it’s removed it physically unless it’s stays once it there one point. there. that’s So paint lead-based
Also, illegal it has been use since 1978 if were to in homes. So one interior surfaces painting Subject paint no lead-based [the that there was assume there and Lanay Brown lived at the time Property] paint there was lead-based paint lead-based there is house, 26, 1999, have to assume that one would May paint with lead-based been painted of the house had interior this test and the time that time moved out she between likely that very of the home it is age was done. Given it was when paint with lead-based the home was painted that’s the of lead- origin and that after it was built built no sense that between It make based would paint. someone that address moved out of family when the use paint, that is something illegal, in and gone would have in a house. paint lead-based *9 that,
Dr. Paulson opinion, concluded his this expert Lanay caused to suffer lead exposure poisoning. Following case-in-chief, the close of plaintiffs’ judge the trial granted Respondents’ unopposed judgment motion for as to Ms. Queen’s individual claims.5 defense, that,
In their Respondents evidence before adduced moving to the Subject Property, Lanay lived at another house that, City, Baltimore if she insinuating poisoned by wa$ lead, her exposure may Subject not have occurred at the Property. Daniel Additionally, Perlberg, who managed Subject Property until testified that he painted and Subject wallpapered Property Queen before Ms. and La- nay moved in and continued performing repairs painting Queen while Ms. there. Lanay Respondents lived also introduced Queen’s evidence that Ms. parents (Lanay’s grand- who parents), signed Subject lease for Property, inspected property and did not find defects. Further- any more, introduced Respondents inspection report a 1992 of the Subject Property prepared by City the Baltimore Health Department’s Poisoning Childhood Lead Prevention Program. The report form allowed for the inspector circle “loose paint/plaster” potential as one of the “Hazardous items around home”; however, the inspector who filled-out the form for Subject Moreover, Property did not circle it. the inspec- tor’s notes attached to the report Queen revealed Ms. stated, time, at the that Lanay poisoned at a previous address.6,7 judge granted Respondents’
5. The trial judgment also motion for complaint brought by three counts Lanay, through of the that was Ms. Queen friend, pursuant Maryland's as her next Consumer Protection Act. trial, Though inspector's 6. admitted part notes were not appeal. They through record on were added a consent motion of the parties. counsel, case-in-chief, Respondents’ during plaintiffs' 7. cross-examined telling Department on whether she recalled the Health inspector Lanay poisoned moving at a different address before *10 credibility during Queen’s attacked Ms. also Respondents from her excerpts into evidence by reading case the defense’s were technical difficulties there Unfortunately, deposition. in a system, resulting gap recording with the Circuit Court’s The parties of the trial. stage of that transcript in the portions read Respondents for that counsel stipulate appeal objected, but her Lanay that and Queen’s deposition of Ms. however, recall overruled; do not parties objection was read, if specific grounds, nor the actually specifically what objection. in her any, by Lanay argued de bene also read Mr. Cavaliere’s for Respondents Counsel into evidence the Un-Redacted and offered esse however, identified; Mr. Cavaliere had Report, which ARC because of in the transcribed record gap there is a again, recording system. Court’s technical difficulties with Circuit objected Respondents when Lanay that parties stipulate evidence, into but Report ARC introduced the Un-Redacted that Lanay also They stipulate was overruled. objection her was irrelevant Report ARC that the Un-Redacted argued in they as existed paint conditions of because it described that the Un-Redacted ARC argued Respondents while relied on it Lanay’s experts because was admissible Report that now claims party Neither forming opinions. their report any purpose the un-redacted trial court admitted by Respondents. that asserted other than head-on counsel attacked argument, Lanay’s In his closing would Respondents that anticipated manner in which he end, he stated: ARC To Report. use the Un-Redacted that came into Now, about an exhibit you I want to talk to I from Mr. Cavaliere. report And that’s the evidence.... it, feeling but I have a guarantee can’t feeling, have ... closing up is to stand going counsel] [Respondents’ Environ- “Look at the from ARC say, report argument are Yes, there, look all the surfaces it has lead but mental. [Respondents’ counsel] That’s what I think [intact].” did not remember Subject Property. testified that she saying that. going say. “Well, to And then he’s going say, it’s [intact]. If it flaking. it’s wasn’t IIow is the negli- [intact] landlord gent and how is the landlord exposed?”
But I want you remember this ladies and gentlemen is, word, because it for lack of a better a bogus argument If why. you and here is look at the page first Un- [the Report] Kedacted ARC the inspection May was done on 1999. years That’s five after Lanay moved out of the property. years It’s four after Perlberg Mr. and Daniel Realty Wendy Perlberg sold the Mr. Perl- property. berg and Ms. had Perlberg never once in to the stepped property. inspected Never the property. Never saw the *11 have no idea .. property. They what . the new owner did to that in terms of property renovation and after painting they sold it in that four[-year] period from the time they sold it until the time it was tested.
Yes, this document shows lead in the As a property. fact, you matter of if can remember coun- [Respondents’ statement, opening sel’s] he admitted to all that there you Subject was lead at Property], I don’t think that fact [the disputed. is But don’t let ... pull defendants the wool your eyes. over The condition of the property in 1999 has nothing to do with the condition of the property between 1990 and 1994when Lanay was there. living answered, for Respondents Counsel making use of the Un- (as Redacted Report ARC anticipated) Queen’s as well as Ms. deposition closing his statement. He stated: testified there was chipping and peeling paint the property, no doubt about it. But I you ask to think about when I read her portions of she didn’t if fact, remember father and [her] mother lived there. she said in her deposition they didn’t. She didn’t remember the whole new when I wallpaper asked her. This But years ago. what did she at the say time when the City Baltimore Health Department was at the door in the said, home? paint She “No it plasterL,] wasn’t noted.” And she says, poisoning!,] “The the exposure occurred some- where else.” That’s what she said at the time. Balti- through all that at homes no here dispute
There’s paint. dispute No at the bottom City more lead is witness, I told every from heard that about that. You’ve ..., we are in where ever Every home opening. that at you in that home. that there’s lead there is a likelihood city this used a machine And [Mr. Cavaliere] contests that. No one you ... And he told find lead. he knew he would where used I could have said, “There are machines that. He it up in the paint, it was you would tell where which said, “I do that. We don’t he didn’t near the surface.” And (inaudible).” in my machines use those I could have said, have.” He admits he “I could But said, at the chip area and this “I[s] taken from the samples said, he paint?” And is that lead based paint[,] top [of] He dispute I his results. do that either.” don’t “I didn’t is, that lead a dispute I lead in the home. What found not a we know it’s layers If down hazard? it’s several majority the tremendous hazard, home or every because paint. in the have that surface city the homes inspec- Here’s the third important part. This is the most have inspection. an We wants [Lanay’s counsel] tion.8 [Subject Property], come to the His own people three. *12 the him, the condition of they and found by hired being absolutely it what prove does Again, to be intact. paint itself it in 1992? No. and of the was paint condition these look at with you It’s a of evidence piece doesn’t. shows evidence we have every piece But of pieces. other This is from an individu- paint. intact this to have property He it their of view. looking point from al who was again and plaintiff on behalf of the home town announcer was the it intact. found to be they inspection apparently inspections were the
8. first two The they signed lease for the parents Queen's when premises City Health inspection by the Baltimore Property Subject and the Program. Poisoning Prevention Department's Childhood Lead ages you doesn’t better as it get paint typically Now as well. the decision you’re making assess that when can I’m to show going were intact. And of 38 areas Thirty-six Look inspection. Here’s the third the science results. you fair, here and it’s results, intact. The one condition at the read, it was fair. to was the handrail and tough to be going There was here, negative It’s for lead. though. Look over negative in that area. That’s a result. no lead walls, these walls. wallpapered because we Look at the find they did is negative. all tested What Now walls for positive home that are to test going wooded areas in the home wooded surfaces in the you any [are] lead. And told And what he test for lead. so positive going probably [to] windows, and he found the door casings, did is he tеsted he didn’t surprise anyone. results. Doesn’t What positive what he didn’t paint. or And any chipping peeling find is (inaudible) And he told at that address. any Lanay find was that. you intact page report. Again, paint at the next
Look this gentlemen, fair condition. Now ladies and with one shape. property painted, in This good property maintained, objec- it good. Every piece looked papered; us that. tive evidence shows the trial the case arguments, judge
After submitted closing resolve, according to jury The first issue for the jury. to sheet, peeling, chipping, to the verdict was whether there was Subject while lived there. flaking Property Lanay at the and, accordingly, in the made no jury negative The found entered judgment of fact.9 The Circuit Court findings other jury’s Lanay with the verdict. Respondents accordance trial, the court erred arguing moved for new deposition against to use Ms. allowing Queen’s Respondents the Un-Redact- by allowing Respondents her and introduce motion, The Circuit Court denied Report. ed ARC timely appeal. Special Appeals noted a Court Lanay there, jury stop if it found 9. The verdict sheet instructed *13 negative on the first issue. Co., Realty in a Brown v. Daniel reported opinion. affirmed (2008). Md.App. 949 A.2d that Re- appellate the intermediate court held Specifically, case-in-chief, in the defense’s were entitled to read spondents, pursuant from Ms. to Rule 5- excerpts Queen’s deposition statement, 802.1,10 prior which allows the use of a inconsistent evidence, subject if the witness is to cross- as substantive The concerning examination statement. court observed that, longer she was no on the witness stand at the although time, available to be as a witness in Queen Ms. was re-called by Lanay following Respondents’ reading rebuttal counsel Thus, reasoned, excerpts deposition. the court subject concerning to further cross-examination To the extent that Re- deposition testimony. her whatever counsel read into the record was not inconsistent spondents’ Queen’s testimony, with Ms. trial the court concluded that was not Because it held the Lanay prejudiced. deposition admissible to its of Rule 5- excerpts pursuant interpretation 802.1, the Special Appeals еxpressly Court declined Queen’s resolve whether the fact that Ms. individual claims longer deposition testimony were no at issue rendered the 2-419(a)(2)11 otherwise inadmissible under Rule or Rule 5- 803(a),12which, the use for respectively, permit any purpose part: provides, 10. Rule 5-802.1 in relevant following previously by statements made a witness who testifies hearing subject the trial or and who to cross-examination concerning hearsay are statement not excluded rule: (a) testimony, A statement that is inconsistent with the declarant’s (1) given subject penalty if the statement was under oath trial, hearing, proceeding perjury deposition; at a in a ... or other or (3) substantially by stenographic or recorded in verbatim fashion or contemporaneously making electronic means with the of the state- ment; .... 2-419(a)(2) provides, part: 11. Rule in relevant deposition anyone taking party ... The of a or of who at the time of officer, director, managing agent, person an or a 2-412(d) designated testify public under Rule on behalf of a or association, private corporation, governmental agency partnership, party may party any purpose. which is a be used an adverse provides, part: 12. Rule 5-803 in relevant
581 an adverse and the party’s deposition prior statement of a party-opponent. respect
With to the Un-Redacted Report, ARC the interme appellate diate court held that the trial judge did not abuse 5-708,13 her discretion in it admitting under Rule which per mits the use of otherwise if by inadmissible evidence relied on an in expert witness her or his The court testimony. observed reviewed, that Mr. Cavaliere and Dr. Paulson oppor and had consider, tunity to the data in the Un-Redacted Report ARC in forming their respective opinions. Additionally, the court held that the report un-redacted was admissible as relevant evidence under Rule 5-40114 to the extent that it showed that the testing produce lead, ARC could a positive reading for intact, if paint even the and that the existence of lead does not mean necessarily paint that the was peeling, chipping, or rule, following by hearsay The are not excluded though the even the declarant is available as a witness: (a) by party-oрponent. Statement A statement is offered against party a and is: (1) statement, party's The own representa- either individual or capacity; tive (2) party A statement of which the adoption has manifested an or truth;
belief in its (3) by A person statement a party authorized to make a concerning subject; statement (4) A party’s agent statement employee during or made agency employment relationship or concerning a matter within the scope agency employment;.... provides 13. Rule part: 5-703 in relevant (b) If jury. trustworthy, necessary determined to be Disclosure to testimony, unprivileged, illuminate reasonably facts or data re- upon by court, expert may, lied an ... in the discretion of the be jury disclosed to the even if those facts and data are not admissible in Upon request, evidence. jury the court shall instruct lite to use those only purpose evaluating facts and data for the validity of probative expert's opinion value of the or inference. provides: 14. Rule 5-401 Definition of "relevant evidence”. having any "Relevant evidence" tendency means evidence to make any consequence existence of fact that is of to the determination probable probable the action more or less it than would be without
the evidence. flaking.15 a Petition for Writ Petitioner, filed with this Court
Lanay,
Realty,
Brown v. Daniel
Certiorari,
granted.
which we
(2008).
essentially
petition
posed
954 A.2d
Md.
(1)
Special Appeals
the Court of
questions:
two
Whether
allowed
properly
Court
Circuit
holding
erred
evidence,
during
read into
Respondents
counsel for
case-in-chief,
Queen’s deposition
from Ms.
excerpts
defense’s
(2)
Appeals
and,
Special
the Court
Whether
testimony?16;
*15
by allowing Respondents
argued
judge erred
Lanay
that the trial
also
15.
Cavaliere;
deposition Mr.
esse
of
read into evidence the de bene
to
however,
this Court.
press
not
that issue before
she does
briefing,
argument,
of the
oral
and review
of full
16. With the benefit
record,
by
question,
phrased
Petitioner
her
as
we find the certiorari
petitioned
misleading.
us to decide:
petition,
a bit
She
to be
witness’[sj
party
a case at the time the
a
a
to
If witness was
trial,
obtained,
it
parly
the time of
is
deposition
not a
at
but
portions
party to read
of that
proper
permit
a
for a trial court
2—419(a)(2)[,]
Maryland Rule
pursuant
deposition into evidence
longer
not
party
a
to the case and
though
witness is no
even
unavailable.
Petitioner,
by
inaccurate as a matter of
question,
is
as articulated
Queen
right
party
for at
indisputably
a
in her own
in that Ms.
fact
trial;
end of her and
it was not until the
portion
a
of the
least
occupy
her individual claims ceased to
that
Petitioner's case-in-chief
problem
jury. A more
is
judge and
substantive
trial attention of the
2-
whether Rule
appellate court did not decide
the intermediate
that
419(a)(2)
adverse
litigant
deposition of a former
a
to use the
allows
party
The Court of
to be a
to the case.
party after the latter ceases
Appeals
Special
wrote:
interesting
parties
issues raised
not resolve the
We need
deposition
or the
of a
of
regarding
legal
of a next friend
use
status
longer party
a
previously party
a
but is no
who was
a witness
view,
by permitting
did not err
the circuit court
case.
In our
Queen's
portions Ms.
relevant
of
appellees to read into evidence
longer pressing her individual
though
was no
deposition, even
she
proceedings, be-
point in the trial
against appellees
that
claims
(1)
testimony
deposition
was admissible as
cause
the inconsistent
],
(2) to the extent that
Rule 5-802.1
[
evidence under
substantive
testimony
with the trial testimo-
deposition
was not inconsistent
error.
ny,
was harmless
its admission
121-22,
Co.,
Md.App.
583 allowed properly the Circuit Court holding erred Report? ARC the Un-Redacted to introduce Respondents follow, judgment we affirm For the reasons court. appellate intermediate Review of
Standard
ruling
admissibility
on the
a trial court’s
It often is said that
of discretion”
to the “abuse
pursuant
evidence is reviewed
Planning
Park &
Capital
v. Md.-Nat’l
Matthews
standard.
(2002);
91,
288, 300
see also
Comm’n,
71,
792 A.2d
368 Md.
419,
736,
Cochrane,
392,
942 A.2d
Md.
v.
Figgins
maintained,
(2008).
are “left to
sound
it
rulings,
Such
appeal
be reversed on
court” and will not
of the trial
discretion
Matthews, 368
of that discretion.”
shоwing
a
of abuse
“absent
Co.,
91,
Farley v. Allstate Ins.
(quoting
Application
[the
under review was based
judge’s ruling
the trial
on whether
in relation to other
weighing
a
of relevance
discretionary
on
the trial
conclusion of law. When
pure
factors
the more
weighing,
apply
involves a
we
judge’s ruling
*16
hand,
the trial
standard. On the other
when
deferential
a
we review
trial
judge’s ruling
legal question,
involves
de novo.
ruling
court’s
omitted)
419,
752 (emphasis
Figgins, Med,. 67, Md. 398 Md. 82- Sys. Corp., Hall v. Univ. (quoting of Matthews, 92, 1177, (2007)); at 792 83, 1186 368 Md. 919 A.2d A.2d at 300. transcript light peculiar problems with the from the decision. of the
trial, and strict confines we are inclined to overlook the technical issues note, however, answering question. that Peti- Petitioner's first We of necessarily negative require that we question would tioner's appellate reported court's of the intermediate decide the correctness 5-802.1, though regarding even Petitioner did not ask decision Rule of expressly in her Petition for a Writ Court to address that this Certiorari. 584 Maryland Rule 5-103
Additionally, provides, pertinent part:
(a) not may predi- Error be ruling. Effect of erroneous a that upon ruling cated admits excludes evidence unless party prejudiced by ruling.... is Thus, “manifestly even if we will wrong,” not disturb an a trial court if the evidentiary ruling by error was harm Dunn, 83, 91-92, 1180, less. v. 382 Md. 854 A.2d Crane 1185 (2004). party maintaining The that error occurred has the that the ... showing complained “likely burden error possibility, affected the verdict below.” Id. “It is not the but which probability, prejudice object appel late are reluctant inquiry. Courts set aside verdicts for errors in the admission or exclusion of evidence unless they Bell, 27, injustice.” cause substantial Flores v. 398 Md. (2007) Crane, 91-92, 919 A.2d at (quoting Md. 1185). A.2d at
Analysis Queen’s I. Ms. Deposition.
Petitioner that the urges Circuit Court committed reversible in permitting error to read into the Respondents record excerpts Queen’s testimony from Ms. as substantive earlier, evidence in the defense’s case. As noted there is a in the transcribed record of this at a gap point pertinent case however, to this issue. The parties, stipulate Petitioner objected that Respondents proffered Queen that Ms. 2-419(a)(2), of Rule party purposes thus them to allowing use her deposition any purpose.” parties “for also stipu- late that Petitioner argued ceased to be а party when her individual claims were of in disposed Respon- case-in-chief, favor her dents’ close of and Petitioner’s but that objection Petitioner’s was overruled. Maryland
Before the directives of Rule considering *17 2-419(a) (2), that, we reiterate when interpreting Maryland Rules, ordinarily employ statutory we the rules of construe- State, 397, 417, tion. Hurst v. 400 Md. 929 A.2d (2007). A cardinal in principle states that if regard language of a rule is clear and unambiguous, it will be applied in thusly a common-sense manner. Maryland Id. Rule 2-419 in provides, pertinent part:
Deposition-Use.
(a) may be used. When (2) The deposition of a or party who at the time anyone of taking officer, the deposition director, was an managing agent, 2-412(d) or a person designated under Rule to testify public behalf of a or private corporation, partnership, association, governmental agency which is a party may be used an adverse for party any purpose. 2M19(a)(2)
Petitioner maintains that Rule does not provide Respondents with an evidentiary basis for Ms. using Queen’s as deposition substantive evidence in their defense case be- cause, asserts, so she Ms. Queen ceased to be a as “party,” rule, required by the when her individual claims were disposed of in Respondents’ favor before the defense’s case commenced. Respondents have two responses. Initially, they posit that determination of a deponent’s status as a “party” purposes 2-419(a)(2) of Rule reckons back to the time that her or his taken, deposition was not the time of the deposition’s use as Thus, them, evidence. according to because Queen Ms. was a party her own right the time of her deposition, they were entitled to deposition use that “for any purpose” at trial. Alternatively, Respondents that, assert even when they of- fered Queen’s Ms. case, as evidence in their defense “party” due to her continuing status as Petitioner’s next friend. We shall discuss each of Respon- dents’ contentions turn.
This Court has not had an opportunity previously 2-419(a)(2) consider whether Rule permits a litigant to use “for any purpose” the deposition of a who person party was a in the same case at the time of the deposition, but ceased to be
586 evidence17; into was offered deposition the timе the party by
a Rule, to be presume which we however, of the wording the 2—419(a)(2) covers two deliberate, Rule our answer. directs (1) who are of natural persons those depositions: of types (2) that are of institutions representatives those of and parties, both, present in the speaks to the Rule respect parties. With party an adverse tense, “may by either be used allowing that of depositions repre- to the respect With any purpose.” for institutions, however, recog- Rule explicitly the of sentatives the a of representative as deponent’s capacity nizes that a the taking the of change between party may institutional trial, of the right the affecting the without deposition the institu- against the deposition to use opponent institution’s 2-419(a)(2) makes no similar Rule any tion for purpose. the any purpose to use for litigant a allowing for provision (either or as person as a natural party of a former deposition sta- a whose through representative) testifying an institution the time the deposition between changed tus as a party trial. deposition to use the attempts litigant the a Therefore, party deponent’s use party for an adverse 2-419(a)(2), depo- Rule the under any purpose -for deposition (or must deponent represented) that the nent the institution is offered into evidence. the deposition be a when party the of of Court agree reasoning we with regard, this Colorado, equivalent that state’s interpreted which Appeals of 2-419(a)(2) likewise, and, concluded that Rule Maryland (or thereof) is offered into a part that a deposition time determining for point the relevant evidence constitutes (or through speaking the institution deponent status of the applicability: of the rule’s purposes deponent) rule. by language supported This conclusion is essence, party of rule, deposition states that who was at the time or a person, person who is a natural an representative as an testifying agent the deposition party an adverse may be used entity party, which is a by any any Respondents direct us to decisions Petitioner or 17. Nor do courts, matter, similarly interpreting a supreme for that other stаte procedure. rule of worded in the tense as to speaks present The rule any purpose. lor circumstances, deponent of a recognizes but status both and trial. entity may change deposition to an between as 554, 22 P.3d Meagher, (Colo.Ct.App.2000) v. Rojhani (italics in original).18 ap- other states’ intermediate conclusion is echoed
Our Glendale, 3 City courts as well. See Skok v. pellate (“We (1966) therefore 413 P.2d hold Ariz.App. distinguished of a as from an party that as *19 director, ‘officer, or of a ... managing agent corporation, its party[,]’ admissibility or association which is a partnership, any any use adverse ‘for is to be by party purpose’ time the deposi- the facts which at the by appear determined necessarily they offered in evidence and not as existed tion is (citation omitted))19; at the time the was taken.” deposition Co., 597, Register Cal.App.2d v. Nat’l 200 19 Vivion Cask provides, of the Rules of Civil Procedure 18. Rule 32 Colorado pertinent part: (a) hearing Depositions. upon the of a Use of At the trial or motion interlocutory proceeding, any part deposition, or an or all of a so far evidence, may against any as admissible under the rules of be used party present represented taking deposition who was or at the of the thereof, any with or who had reasonable notice in accordance of the following provisions: (2) any deposition party taking The of a or of one who at the time of officer, director, deposition managing agent public an or of a association, private corporation, partnership, governmental or or or a 30(b)(6) agency, party, person designated which is a or a under Rule 31(a) testify may party or an on behalf thereof be used adverse any purpose. for 2009). (LexisNexis provisions Colo R. P. 32 relevant of Rule Civ. Rojhani. 22 32 were the same when the court decided See P.3d at 559. Currently, provides, Rule 32 of the Arizona Rules of Civil Procedure 19. ..., any part deposition, the trial or all of a so far as admissible “[a]t applied though of evidence the witness were under the rules as then ” present testifying, may against any party .... be used Ariz R. Civ 2009). 32(a) (LexisNexis provide P. The notes to the rule that the rule way to make clear that “it is status of the matter at reads the it does event, any controlling,” in trial which is accordance with Skok. when Skok, appellate the Arizona intermediate court decided the relevant rule 2-419(a)(2), Maryland providing: procedure w'as similar to Rule
USE OF DEPOSITIONS
588 (“With (1962) .., . 602, to the witness respect 608
Cal.Rptr.
her,
no
against
been dismissed
she was
having
the action
circumstances,
these
she
to the record Under
longer
party
within the
mentioned
the Code
categories
does not come
Procedure,
permits
depositions
per-
...
[which]
Civil
enumerated to be used
categories
sons who come within the
State Univ. Constr.
party
any purpose.”);
an
adverse
Co.,
Fund v.
& Neuman
Kipphut
1003,
A.D.2d
552
(“The
(1990)
of the statute refers
language
N.Y.S.2d
in time.
status
points
respect
deponent’s
to two
With
officer, director,
it
party,
an
of a
refers
agent
employee
as
of the
howev-
taking
deposition.
respect,
to the time of
With
er,
interested
deposition by ‘any adversely
to the ‘use’ of the
trial’.”).20
to ‘at the
language
refers back
party’,
Simmons,
on Iheme v.
148 Misc.2d
Respondents
rely
(N.Y.Civ.Ct.1990),
counter-proposi-
for the
560 N.Y.S.2d
interlocutory
upon
hearing
an
At the trial or
of a motion or
any
deposition,
proceeding,
part or all of a
so far as admissible under
evidence, may
against any
present
party
be
who was
the rules of
used
taking
represented
at the
or who had due notice
or
thereof,
any
following provisions:
with
one of the
in accordance
*20
any
deposition
party
a
or of
one who at the time of
2. The
of
officer, director, managing agent
taking
deposition
of a
the
was an
or
public
private corporation, partnership, or association which is a
or
may
party
any purpose.
party
be used
an adverse
for
Skok,
Respondents retort even at the time they offered into evidence Queen’s deposition Ms. testimony, “party” 2-419(a)(2), was a for purposes of Rule regardless of the resolution so, of her individual claims. This is Respon urge, dents Queen, times, because Ms. at all was acting also as friend, her, Petitioner’s next rendering for all intents and purposes, Petitioner, however, a “party.” contends that under law, Maryland a next friend is not a party. friend,”
A ami,” “next or “prochein is “one who brings suit on behalf of a minor or disabled person because the minor or disabled person lacks capacity sue his or her right, own or ... one who defends a suit against minor or person disabled lacking capacity Wills, to defend.” Fox v. 620, 625-26, (2006).22 390 Md. 890 A.2d We have “ stated that a next friend ‘stands much in very the relation of supra 21. See note 20. *21 observed, Fox, litem,"
22. We “guardian also in that the term ad times, by employed has been Assembly this Court and the General synonymously ‘‘prochein with the terms “next friend” and ami." 390 625, present analytical Md. at 890 A.2d at purposes, 729. For we shall having treat all threе meaning. terms as the same 590 is case, that he supposed and it is [] attorney
an
”
Katzen,
693,
v.
331 Md.
Berrain
by the court.’
appointed
State,
(1993)
707,
v.
Use
703,
(quoting
629 A.2d
712
of
Deford
629,
Fox,
(1869));
390 Md. at
see also
30 Md.
Keyser,
same). Furthermore,
recognize
we
(noting
A.2d at 731
“
the rights
to
duty
protect
court has a special
‘the trial
by
is represented
[a]
minor
who
plaintiff
interests of the
not prejudice
next friend does
to insure that the
next friend
interest, fraud,
conflict of
through
interests
rights
those
”
Pasteur,
Skevofilax, 396 Md.
Inc. v.
...
Aventis
neglect.’
(2007)
Berrain,
More than a in an action should be was a defendant an infant that whether bill of plaintiffs answer to a his next friend’s by bound complaint, iterated: is not evidence by guardian answer his an infant’s
Regularly sworn, only and it is for him, because he is not against reality It is not in making proper parties. of purpose sworn; infant, is only of the who guardian but answer infant, in of an to the interests great danger and there is him, who from against to be read such an answer permitting the contents of nothing know of years, may his tender to or not be able by guardian, in him his answer put ad litem is so it, guardian effect. And the of or of its judge himself; the matter nothing often to know as appointed, observed, guarding cannot well be and too much caution infants, only improvident not against rights the answers of but guardians, against of honest answers far views; of how say nothing may have sinister such as decree, an upon ordinarily by be bound may an infant of the bill. admitting the facts answer his guardian, concerned, therefore, course, for all The better and safer defendant, answering case, an infant is a in which every upon proof put plaintiff guardian, his manner, if bill, as in the same in his allegations material
591 answer, nothing by had been admitted unless otherwise course, by law. It is the expressly provided proper which elsewhere. prevails hill, (Md.1833). 1, Taney
Kent’s Adm’rs v.
6 G. & J.
3
later,
Almost a
this
century
pondered,
Court
Pindell v.
Rubenslein,
a
plaintiff
whether
minor
was bound
567, 575,
hearsay admissions of his next friend. 139 Md.
115
859,
(1921). There,
A.
the minor plaintiff, through his
friend,
mother as his next
sued the
alleging
defendants
their wooden
fell on him while he
gate
past
walked
it on his
store,
trial,
to the
one of
way
breaking
legs.
his
At
mother testified on direct examination that she sent the minor
sister,
aunt,
with her
plaintiff
store
the minor’s
and that
she knew
nothing
accident until her sister
brought
572,
injured child home. Id. at
While
Court has not revisited
recently
issue of
reaffirmed,
whether a next friend is a
we
“party,”
have
contexts,
other
the distinctions recognized between a next
Katzen, we held
In Berrain v.
infant
litigant.
friend and an
for a trial court to enter
that it was an abuse of discretion
as a sanction for the
plaintiffs
minor
judgment against
default
the reason-
comply
next friend to
with
plaintiffs’
failure of the
Md. at
of the defendants. 331
discovery requests
able
There,
minor
were three
plaintiffs
Berrain and Fulton are reconcilable with other cases in
which we have declined to enforce rigidly the status
a next
Mend
sеparate
as
and distinct from that of the
litigant
infant
whom the next
represents.
Leitch,
friend
In Alters v.
we held
the testimony of a next
subject
Mend is
to the same
limitations under the “dead man’s statute”25 as would be the
granted
24. We
Special Appeals
certiorari before the Court of
consid
Assocs.,
479,
ered the case. Fulton v. K & M
329 Md.
A to a personal representative, or a devisee, distributee, such, legatee or judgment as in which a or them, may against decree by against be rendered for or or or an incompetent person, may testify concerning any not transaction with 594 390, 392, 458, A.2d of a minor 213 Md. 131
testimony
plaintiff
(1956).
a
Accordingly,
plaintiff,
the next friend of minor
decedent,
a
was not competent
in a suit
the estate of
against
Id.;
a transaction with the decedent.
see
testify concerning
to
(1971).
Crabbs,
30-31,
6,
also
v.
263 Md.
282 A.2d
Snyder
Pasteur,
Skevofilax,
More
in Aventis
Inc. v.
we
recently,
an
of discretion for a trial court to
held that it was not
abuse
next
parents
a
a minor
his
as
deny
by
plaintiff, through
motion
friends,
prejudice
his claims without
order to
to dismiss
action,
his cause of
where there was no evidence
preserve
fraud,
interest,
on the
of his next
neglect
part
conflict of
435-36,
Skevofilax,
at
From the
we
foregoing
during
next friend
infancy,
rely
due to her or his
must
a
subjected to an
of
interpretation
should not be
litigation
penalize
would
discovery
effectively
rules of evidence and
a
defending
through
her or him for
or
a cause
prosecuting
friend;
justice
next
the interests of
and fairness
conversely,
infant
should not be
litigants,
a child
opponents
evade,
or
a cause
by prosecuting
defending
permitted
friend, application
next
of the rules of evidence and
through a
case,
judge
In the
the trial
discovery.
present
we resolve that
by allowing
during
erred
to read into evidence
Respondents
As
deposition testimony
Queen.
their defense case the
of Ms.
2-419(a)(2)
stated,
deposition
Rule
mandates that the
be
someone who is a
at the time the
is offered
party
deposition
friend,
into evidence. As Petitioner’s next
was not
when
offered her
into evi
“party”
Respondents
deposition
Pindell,
dence.
Nevertheless, will not reverse a if the judgment we Crane, 91-92, trial court’s error was harmless. 382 Md. at proponent ordinarily A.2d at 1185. A successful of error has that the showing complained the additional burden of error as influenced the unfavorable probably, opposed possibly, Here, carry day. verdict. Id. Petitioner is not able to complains particularly prejudiced by that she “was She obvi ruling Queen’s] credibility [Ms. trial court’s because any an issue.” does not articulate harm to her ously She testimony other than that undermined cause *26 Queen’s credibility. portion Ms. directs our attention to a She of counsel in which he closing argument Respondents’ of the “I ask to think about when I read jury, you said to Queen’s] of and she didn’t remember portions deposition [Ms. about the house. didn’t remember if anything [her] She in her father mother lived there. In fact she said Respondents didn’t.” Petitioner contends that deposition they Queen’s] not have been able to credibili- impeach [Ms. “should the chance cross-examine ty already after their counsel had of the trial court’s they advantage her.” She claims that “took deposition error the ‘read-in’ by emphasizing portions closing argument.” that, Respon-
The flaw with Petitioner’s contention is when of deposition testimony dents’ counsel read into evidence the case, used Queen during Respondents Ms. defense’s had their Queen during Ms. deposition previously impeach during cross-examination of her Petitioner’s case-in-chief. words, the features of Ms. damaging Queen’s deposition other us) (to were before testimony already which Petitioner directs of jury, regardless Respondents’ potentially duplicative Petitioner, deposition during use of the their defense case. however, complain Respondents’ does not here about use of her; their Queen’s deposition during Ms. cross-examination (which nor it from the record is intact for this appear does trial) objected part of the that Petitioner to its use at following exchange time. The from cross-examination pertinent: Now, first all were [Respondents’ you talking counsel:] Brown, Mr. your step-father, living you about with [at Subject Property?] Queen]: Yes.
[Ms. recall me in ... that Mr. Q you telling deposition Do Subject Property]? Brown didn’t live [the just A he wasn’t there. He lived being He lived there but Yes, He there. he thеre. That was his residence. lived I lived there. don’t recall.
Q you pointing Do recall out to us that Mr. ... own apartment Brown had his somewhere?
A No.
Q Okay. Subject Did Mr. Brown live at Property]? [the A Yes. *27 me refer
Q Okay. you you Let to—and I’ll give copy I’m your deposition—page thirty-three. going to hand it to if mind. There it you, you page thirty- don’t is. There is three.
A IWell said it.
...Q thirty-three, On page you were asked: “You don’t your know if father you Subject lived with at Proper- [the ty]?” wasn’t—no, “I
Answer: I am not sure. He there lived but he didn’t come there. I say So no.”
Question: “He lived there but he didn’t come there?” Answer: “He paid everything, paid bills. It their they house but don’t stay there.” Question: “We are referring Robert Brown?” Answer: “Yes.”
A Yes. do
Q you So recall testifying Brown, fact, that Mr. didn’t live at Subject Property]? [the A I I said—you said said he lived there but he don’t stay there. Yes. Now,
Q Okay. you when said in this that testimony they there, didn’t live they didn’t stay there— A mother My stayed there. Now,
Q you when said in your sworn deposition testimony there, didn’t they stay were you referring to the fact that your parents didn’t live there at times?
A No. instance, were four just told us that there you For
Q all with others. they occupied were bedrooms I what in the basement. know they stay And I said down A I said. unfinished basement? stayed
Q your parents So I said. it theirself. That’s what they AI said decorated is, they stay in the question But the did Judge]: [Trial basement?
AI said yes. basement was unfinished? And that
[Respondents’ counsel]: but it was unfinished I decorated it theirself they A said first. you with the entire time stay you Robert Brown
Q Did Subject Property]? were at [the you. to answer way A No. No is the best *28 the value impeachment does not how explain Petitioner the de- during Queen’s deposition use of Ms. Respondents’ case-in-chief, objected Petitioner to and contin- which fense’s from the use of in substance or effect protest, ues to differed which dialogue, engen- the during foregoing the deposition fact, In the foregoing Petitioner. as protest dered no from reveals, excerpt read an Respondents counsel for dialogue of Ms. during the his cross-examination deposition from Queen’s Ms. mother That concerned whether Queen. excerpt it Subject Property, is lived at step-father testimony that he referenced deposition relevant portion Respondents Counsel for argument jury. in his to closing did not Queen that Ms. closing argument also iterated in his however, that Subject at the wallpaper Property; recall new cross-examination, regard- during as well point developed the deposition came out when he read again of whether it less case. defense during Respondents’ read into evidence excerpts Petitioner asserts included also have might defense case during Respondents’ Respon- admitted that Queen in which Ms. some statements Subject Property sent to the occasionally people dents her prejudices by Petitioner believes point a repairs, make If, however, Queen. of Ms. believability undermining part evidence this in fact read into Respondents counsel for was not sufficient to Petitioner prejudice the deposition, First, in this case. Ms. jury’s verdict reversing warrant that Re- her direct examination acknowledged during to make re- Subject Property to the sent spondents people the hallway up Daniel Realty “patched pairs, testifying Second, not apparent the roof.” it is and had some men on Subject to the sent Respondent repairmen how the fact that believed, to conclude jury if influenced the Property, likely chip- not contain Subject Property that the did erroneously lead-based or otherwise. ping peeling paint, judge’s allowing Respondents, the trial error Accordingly, 2-419(a)(2), excerpts Rule to read into evidence from under their defense case Queen’s deposition testimony during on the record as to us. Because we presented was harmless such, conclude as we do not reach the issue of whether the was admissible under deposition testimony alternatively Mary- 5-802.1, Rule intermediate appellate land as so resolved court. At least Rule 5- according parties’ stipulations, upon by allowing 802.1 was not relied the Circuit Court use of the deposition.26 2-419(a)(2) discovery. passing, we that Rule a rule of observe
26. Accordingly, deposition a that satisfies the dictates of use under the rule would not be admissible in a trial if otherwise barred a nonetheless where, here, Conversely, deposition rule of evidence. as is of a 2-419(a)(2), "party” witness who is not a under Rule such a *29 might circumstances be admissible at trial as a vicarious in certain 5—803(a)(2)—(5). argue party Respondents in admission of a under Rule Queen's deposition testimony brief that constituted vicarious their Ms. (a)(2)-(4) here, They urge applicable by admission Petitioner. truth”; asserting adoption in that Petitioner "manifested an or belief its Queen was "authorized to make a statement [Petitioner] that Ms. Queen agent concerning subject”; the and that Ms. was Petitioner’s "during agency concerning gave deposition her the ... a matter scope agency.” within the of the II. The Report. Un-Redacted ARC Petitioner next contends that the Circuit Court com mitted reversible by allowing Respondents error to offer as evidence the Report. Un-Redacted ARC She maintains that it was irrelevant because it detailed the condition Subject five after she Property years and Ms. moved out. asserts that she prejudiced by She this evidence Subject because it described the at the paint Property, the however, part, rejoin most as “intact.” Respondents, experts reasonably Petitioner’s relied upon un-redacted in report forming opinions, their therefore it admis rendering sible Maryland under Rule 5-703.
Maryland provides, pertinent Rule 5-703 in part: (a) general. in particular The facts and data case upon expert opinion which an bases an or inference may be perceived by those or made known to the at or expert before the If of a hearing. type reasonably relied upon experts field in or infer- particular forming opinions upon subject, ences facts or data need not be admissible in evidence.
(b) jury. Disclosure to the If determined to be trustwor- thy, necessary testimony, to illuminate and unprivileged, facts and reasonably upon by pursuant data relied an expert (a) may, to section in the discretion of the court be disclosed even if jury those facts and data are not admissible in Upon request, jury evidence. court shall instruct the only use those facts and data for the purpose evaluating why There are we two reasons decline the invitation to address First, stated, argument. Respondents’ any allowing as error in them to during Queen's read Ms. into evidence their defense case was, event, Second, any complete transcript harmless. lack of a precludes reviewing this Court from the trial court's factual determina- testimony Queen’s deposition tion that vicarious admission Petitioner, assuming the trial court even made such a determination. 5-803(a), (“Where Maryland disputed See cmt. n. Rule there is a issue statement, representative capacity, ... as to authorization to make a any requirement, ... or other foundational the court must make a admitted.”). finding may on that issue before the statement be
601 validity probative value of the expert’s opinion or inference.
Thus, four elements must be satisfied for a document (1) to be admissible under this rule. The document must be (2) (3) trustworthy, unprivileged, reasonably upon by relied an (4) expert forming her or his opinion, and necessary to illuminate that expert’s testimony. case,
Tn the present Petitioner does argue not that the Un- Redacted Report ARC was privileged or untrustworthy. In- stead, she asserts that it was neither relied upon her by experts, Dr. Paulson Cavaliere, and Mr. nor necessary to illuminate their testimonies. Petitioner contends that the trial judge abused her discretion in concluding because, otherwise claims, (in so she Mr. Cavaliere testified deposition) only that paint on the Subject Property contained lead and Dr. Paulson (in trial) testified only that Petitioner poisoned there ingestion of lead. disagree. We
“ evidence, ‘[TJhe admissibility of including rulings relevance, on its is left to the sound discretion of the trial court, and absent a showing of discretion, abuse its ” rulings will not be disturbed on appeal.’ Dehn v. Edge combe, 606, 628, 384 603, Md. (2005) 865 A.2d 616 (quoting Co., Farley v. Allstate 34, 42, Ins. 355 1014, Md. 733 A.2d (1999)). An abuse of discretion lies where no reasonable person would share the view taken the trial In judge. re 3598, Adoption/Guardianship 295, No. 312, 347 Md. 701 A.2d (1997). 110, 118 Recently, this Court observed: ruling “[A] reviewed under the abuse of discretion stan- dard will not be reversed simply because the appellate court would not have made the same ruling. The decision under consideration has to be well removed from any center mark imagined by the reviewing court beyond the fringe what that court deems minimally acceptable.” State, King 682, v. 697, 407 Md. (2009) 967 A.2d North, (quoting North v. 1, 13-14, 102 Md.App. 648 A.2d 1031-32(1994)). case, the instant we cannot conclude that the trial judge’s ruling was so far removed from the center the same have taken could person no reasonable
mark that view. her deter- not abuse discretion
First, judge the trial did *31 relied on the Un-Redacted experts that Petitioner’s mining counsel laid the foundation Petitioner’s As Report. ARC on relied that Dr. Paulson patent it was opinion, Dr. Paulson’s Indeed, Petitioner’s when Report. ARC the Un-Redacted Version, he with the Redacted Dr. Paulson presented counsel yet fair accurate that’s a' asked, tell me you [if] “Can to determine upon that relied report, you redacted copy of (italics Property]?” Subject paint [the was lead that there Mr. Additionally, added). that it was. testified Dr. Paulson that he in de bene esse testified his Cavaliere lead- contained Subject Property that the opinion formed his Report, ARC reviewing Un-Redacted paint by based prepared. technicians which his in her discretion Second, did not abuse judge the trial necessary was Report ARC that the Un-Redacted concluding testi- experts. of Petitioner’s testimonies to illuminate the by poisoned that Petitioner was expert opinion to his fying Dr. Paulson referred Subject Property, at the lead observed, which, ARC, apparently as we generated report stated, have He “we Report. ARC was the Un-Redacted at that of the home done inspection from an documentation multiple on surface, on the paint was lead that there address found at over paint Lead-based at that address. surfaces May in inspected the home was that when 20 sites at address added). (italics Report ARC Un-Redacted 1999.” at a paint particular of lead-based that the detection clarified peeling paint that the necessarily mean location does not by Dr. connection asserted It also undermined chipping. of the ... surfaces” multiple on paint “lead Paulson between that, by clarifying poisoning and Petitioner’s Subject Property the surfaces Paulson, on paint Dr. cited report in the actually intact. to lead- reference that Dr. Paulson’s counters Petitioner is taken Subject Property the “surfaces” on paint based meant was context, really only he that what suggesting out or “areas” of the “places” paint was lead-based that there claims, mean, not so Petitioner He did Subject Property. so; however, bemay This top layer paint. in the lead was to make witness, her responsibility hеr it was expert as he was not in a manner that would he himself explained certain that courts). (let If Dr. appellate of fact alone confuse the trier was somewhere at that lead-based simply paint Paulson meant he did not on Un-Redacted Subject Property rely Petitioner had the reaching opinion, Report ARC clear that that testimony his to be develop fully opportunity We, review, not reverse the shall appellate was the case. that Dr. judge by assuming of the trial discretionary ruling meant what Petitioner now claims. Paulson that, if the trial judge
Petitioner next even complains admitting not abuse her discretion in Un-Redacted did *32 5-703, not under Rule the relevant to Report report ARC Subject Property of the the while paint the condition points Petitioner resided there from 1990 to 1994. She out in their Respondents, closing argu as reflected counsel’s ment, report winning relied on the un-redacted to bolster their chipping, flaking that there was no argument peeling, paint Subject during According at the that time-frame. Property Petitioner, did not a foundation for Respondents lay proper (as paint May the that the condition the 1999 proposition Report) accurately the Un-Redacted ARC represented reflected the condition of the from 1990 to 1994. paint waived this contention counter that Petitioner
Respondents a instruction request limiting because she did not under object Rule 5-703 and did not manner Maryland in their Report which relied on the Un-Redacted ARC they agree with Neither the closing argument. Respondents. We briefs, joint provided nor the record parties’ stipulation, Report to us that the ARC was admit- suggests Un-Redacted other than to illuminate the any purpose testimony ted for Thus, Petitioner’s assertion—that experts. Petitioner’s question was not relevant to the report un-redacted 604
paint’s Subject condition while she at the Property— resided only takes aim at the manner in which Respondents relied on the evidence.
Petitioner concedes that she never requested limiting a 5-703(b) instruction (“Upon request, under Rule the court jury shall instruct the to use those only facts and data for the purpose evaluating validity probative value of the inference.”); however, expеrt’s opinion or she seeks to excuse her failure Rule claiming Respondents did not raise 5- 703 as a basis for admitting Report. Un-Redacted ARC Her excuse is not Even convincing. Respondents if never rule, expressly joint cited stipulation provided by parties reveals that before the Respondents argued trial court that the un-redacted was admissible because report Petition- er’s on it. experts Additionally, any relied as with evidence misused, that potentially could be Petitioner could have re- quested limiting instruction under Rule 5-10527 as well. Moreover, when, object Petitioner did not during closing argument, counsel cited the Respondents’ Un-Redacted ARC as that the Report paint Subject evidence at the Property “intact” while Petitioner resided there. v. Farley See Allstate Co., (1999) (“Even Ins. A.2d Md. if Allstate’s during closing arguments comments were re- prejudicial and verdict, sulted in an it inadequate was incumbent Far- upon ley’s immediately object counsel to so that the trial judge matter.”). could rule on properly we Accordingly, resolve that Petitioner’s argument—that *33 the Report Un-Redacted ARC did not constitute relevant paint’s evidence the condition between 1990 and 1994—has been waived. provides:
27. Rule 5-105 admissibility. Limited party When evidence is admitted that is admissible as to one or for purpose party one but not admissible as to another or for another court, purpose, upon request, restrict the shall evidence to its proper scope jury accordingly. and instruct the objection, to waiving relevancy addition her also prejudiced by Petitioner fails to establish that she was use even if Respondents’ Report, of the Un-Redacted ARC was admitted evidence report erroneously as relevant peeling, paint whether or at the chipping, flaking existed Subject Property Judge Murphy’s between 1990 and as not persuaded dissent reasons. We are that a persuasively different result trial would have obtained if the court excluded Flores, Report. at Un-Redacted ARC See 398 Md. at Queen’s 919 A.2d 720. Ms. was the testimony only evidence adduced Petitioner to the claim that the support paint the Subject Property was chipping, peeling, flaking during hand, Petitioner’s residence. on the Respondents, othеr ad paint duced evidence that was intact when Petitioner initially Subject moved into the Property and that no “loose paint/plaster” was observed in 1992 the Baltimore City Department. Health The report Health prepared by the Department also revealed that Ms. the in Queen informed spector that Petitioner was poisoned at another property. Additionally, Respondents testimony adduced by one manager’s Subject Property that Petitioner’s grandpar (the lease) ents tenants identified on the inspected Subject before Property Petitioner moved in and did not find any defects, as well Subject as evidence that the Property painted and wallpapered shortly before Petitioner resid began ing there and that the did property manager any not receive complaints about that, the paint.28 Keeping in mind any “[i]n action, tort ... the burden is on the prove by plaintiff 28. property manager The fact that the any complaints not did teceivc light during came to Petitioner's property re-direct examination of the manager, Perlberg, Daniel whom she called aas witness: Q my you You lold us on inspected direct examination never |the Subject Property]. Is that correct?
A No. inspect I didn’t it. There no—can I answer that? THE COURT: Yes. Q Well— |sic| only A The reason I if complaint would answer there was a any complaints made and there weren't made. *34 606 probable it is more than of the evidence that
preponderance injury,” act his Petitioner’s caused not the defendant’s Report likely changed ARC argument—that the Un-Redacted Lib. See Med. Mut. the outcome of this case—falls short. Assocs., 41, 54, Md. 660 A.2d B. Evander & Soc’y v. Dixon (1995). 433, 439
Conclusion Special of Appeals. affirm of the Court judgment We us, be Petitioner, was not shown to the record before on found (though decision sufficiently by judge’s harmed trial erroneous) to read Respondents to hindsight permit in to be deposition during from excerpts Queen’s into evidence Ms. abuse case, the trial did not her discretion judge defense and to into evidence the Un- introduce allowing Respondents it 5-703. Even had under Md. Rule Report Redacted ARC Petitioner failed report, error the un-redacted been to admit its or its prejudiced by she was admission us that persuade use trial. APPEALS THE OF SPECIAL
JUDGMENT OF COURT AFFIRMED; IN AND OF THIS COURT COURT COSTS BY APPEALS TO BE PAID PETITIONER. SPECIAL BELL, C.J., Dissents. J., and
MURPHY, Dissents. Concurs BELL, C.J. Dissenting Opiniоn of and next friend (“Ms.Queen”), aunt Catherlina Lanay Brown, individually and behalf Lanay filed suit Realty Daniel Brown, respondents, against the petitioner, neg Wendy Perlberg, alleging Perlberg Daniel and Company, Protection Maryland Consumer violations ligence and (2005 et § 13-301 Act, Supp.) Maryland Repl.Vol., Code The counts Law Article. pertaining seq. Commercial Brown’s Queen individually Lanay were derivative that, respon- she because of the alleged claims. Specifically, omissions, resulting acts and wrongful negligent dents’ infirmities, she: Brown’s illnesses Lanay *35 “1) and damage deprived and will be suffered loss and during minority. lose the infant’s services will “2) expenses to incur required will be has been and of physi- for the services care and treatment hospital to treat and administer to surgeons required cians and and infirmities. injuries, illnesses [Lanay Brown’s] “3) administered being to witness her child required was and to witness as before described drug therapy painful emo- the Plaintiff severe blood tests which caused painful anguish. and mental tional distress “4) frequent her child for additional was to take required were follow-up poisoning visits for the of lead which medical have pediatric and above the normal visits which would over Defendant. negligence required been absent “5) and dam- has otherwise sustained and will sustain loss age.” case-in-chief, Queen, the Plaintiffs’
During plaintiffs’ -witness,1 “party,” who at that time a testified to the fact was Road, subject condition of the 3630 Reisterstown premises, of, tenancy. While she inception during, both at first “okay” they that the condition was when acknowledged in, that, for a they she testified after had lived there moved later, while, “five or six months door, in the front it was like a you
“It was like when come wall, when paint chipping you in the and the was hole was bathroom, the you go Then when in the up stairs. go And in chipping. floor -was and the windows was chipping dining leaking.” kitchen and the room it was counsel, elucidated: Directed she Now, go through things you I Okay. want “[Counsel]: you jury time and ask to tell the about mentioned one at a First, told us about the front door. Can Okay. you them. Paulson, testifying, part, expert an in relevant was Dr. Jerome 1. Also poisoning. childhood lead what, you jury describe to the members of the if anything, about the front door area of the home around you noticed five to six months after moved into the you house? door, like it Queen]: you It was when enter the looked “[Ms. like a hole was in the wall with like white stuff out of coming it looking coming like sheetrock stuff whatever was out of say it. I can’t because I don’t know. Okay. you And then also mentioned the steps,
“[Counsel]: stairs, or the to use exact tell the your you words. Can what, members of the if jury anything, you noticed about the condition of the five to six after paint starting months in, you moved on the stairs? Like the it Queen]: paint chipping, like often like
“[Ms. over paint paint starting chip. *36 Okay. And also you “[Counsel]: mentioned windows. tell the which you jury you Can members windows noticed and at 3630 Reisterstown chipping peeling paint you Road five to six months after moved in? beginning Queen]: It was like the bedrooms and the room living “[Ms. dining and the room. Okay. And also mentioned you something
“[Counsel]: about floor, tiled, the bathroom floor. The bathroom was it was it was it carpeted, painted? Describe floor to the mem- the jury? bers of Queen]: It was sort of like tile like looking
“[Ms. something somebody painted and then over of it bur- top gundy. And can tell the Okay. you jury members
“[Counsel]: what, if anything, you painted noticed about the tile floor the bathroom five to six months or so after beginning you moved in? Queen]: After a while it started chipping coming
“[Ms. know, like up, you paint chipping. Now, Okay. go I want to downstairs now into
“[Counsel]: the kitchen the—you dining mentioned room and a leak. you mentioned Queen]: Uh-huh.
“[Ms. describe to the you jury “[Counsel]: Can members of the you by what meant that? rained, I meant it Queen]:
“[Ms. when it used to come through the window like a waterfalls. How do you
“[Counsel]: mean that? Queen]: rained, Because when it “[Ms. it would come through where the wood or the board is. The water would come down really hard and it would come on the floor like and the window. Now, us, All right. you
“[Counsel]: can tell if please, what anything you happened noticed to the painted areas around the area in the kitchen and the dining room where the water was coming in? Queen]:
“[Ms. It was starting to more.” chip The respondents’ cross-examination of Ms. sought to establish discrepancies between her trial testimony and that and, given on deposition thereby, undermine her credibility. One of the avenues they pursued who, to do so was to focus on Brown, besides her and Lanay resided at subject premises during relevant and applicable At period.2 the conclusion colloquy 2. The relevant was as follows: Now, all, you "[Counsel]: first talking your step-father, were about Brown, living Mr. you. with Queen]: "[Ms. Yes. you me, telling deposition—well, "[Counsel Do recall me in not but 1: my your deposition—that someone from office who took Mr. Brown *37 didn’t live at 3630 Reisterstown Road? Queen]: just "[Ms. He lived being there but he wasn’t there. He Yes, lived there. That was his residence. He lived there. he lived I there. don't recall. Okay. "ICounsel]: Did Mr. Brown live at 3630 Reisterstown Road? Queen]: "[Ms. Yes. a motion case-in-chief, respondents made the plaintiffs’ of claims. Queen’s each of Ms. individual as to judgment court that motion. granted the tidal opposition, Without Nevertheless, a longer party was no though even their case-in- action, sought, during respondents to the chief, testimony Queen’s pre-trial deposition to read Ms. and, objec evidence, the petitioner’s over jury as substantive majority The tion, them to do so.3 court permitted trial copy you give you a Okay. refer to—and I’ll Let me "[Counsel]: you, going it to if thirty-three. I'm to hand your deposition—page thirty-three. page you There it is. There is don’t mind. page thirty-three, you were asked: you. On I’ll show it to "[Counsel]: your you at Reisterstown if father lived with "You don't know Road. wasn't—no, lived there "I I am not sure. He Answer: "[Counsel]: Question: say "He lived there there. So I no.” but he didn’t come paid everything, paid "He bills. he didn’t come there?” Answer: but Question: stay "We are they don't there.” It is their house but referring Brown?” to Robert Answer: "Yes.” Queen]: Yes. "[Ms. fact, Brown, you testifying that Mr. didn't do recall So "[Counsel]: Road? live at 3630 Reisterstown Queen]: stay said—you I he lived there but he don’t I said said "[Ms. there. Yes. Now, they testimony Okay. you said in this when ’’[Counsel]: there, they stay didn't there— didn’t live Queen]: stayed My there.” mother "[Ms. and, so, extent, Whether, they successfully highlighted the what if deposition testimony trial testi- inconsistency pre-trial her between Lanay stepfather lived with her and at the mony regarding whether her credibility, convincing jury her lack of Subject Property, thus for, by, jury. to be resolved were matters and left ruling to for the Circuit Court's parties stipulate that the basis 3. The Queen's testimony evidence was deposition as substantive admit Ms. Rule, 2-419(a)(2). captioned “Deposition-Use.,' Maryland That Rule provides: "(a) may Whеn be used. taking "(2) anyone party who at the time of deposition of a or of officer, director, managing agent, person or a an 2—412(d) public testify behalf designated under Rule
611
that,
holds,
Queen
“party”
because Ms.
was not a
correctly,
during
her
into
they
deposition
read
evidence
portions
when
case-in-chief,
to have
it was error for the trial court
their
565, 596,
it as substantive evidence.
Md.
admitted
2-419(a)(2), it explains
318-19.
Rule
Interpreting
A.2d
not,
account,
were
on that
to
respondents
permitted
that the
“any
for
Queen’s deposition testimony freely
pur
use Ms.
holding
Id. at
To be Ms. was an witness for the important It is that Ms. petitioner. Queen’s deposition likewise true and, differed from her trial a testimony testimony as result and, potentially, could have undermined her as a credibility result, Moreover, the petitioner’s case. was discrepancy before the their jury. respondents presented, during chief, cross-examination of her testimony impeachment as evidence—, Queen’s evidence—not substantive Ms. as a
testimony counterpoint Queen’s testimony Ms. at trial. did, would, if Whether that evidence or or how significantly, all, and, Queen’s credibility consequently, undermine Ms. case, not petitioner’s jury question. jury But did to answer that get question. presented When case was decision, jury notwithstanding only for that the plaintiff Brown, remaining Lanay only as to whom the evidence properly jury considered to decide her case was that case-in-chief, during impeachment amassed her evidence of Queen’s deposition testimony again had been offered and association, private corporation, governmental agency partnership, party may party any purpose." which is a be used an adverse *39 to be read into the record as substantive evidence. permitted evidence, no a Queen longer party, Never mind that Ms. was deposition testimony if she were—her as only admissible evidence—and which earlier has been admitted to substantive admitted, thus it impeach Queen, giving Ms. was nevertheless it available to combine with its emphasis making undue and incarnation, evidence, to undercut Ms. impeachment earlier as and, Queen’s credibility predictably, prejudice in turn and Lanay Brown’s case. the special required
The first on the verdict sheet question subject whether the at the jury paint premises to determine ... “flaking, peeling Lanay was or while Brown chipping, an critical resided How it was resolved was issue there[.]” and of to both sides. Its resolution paramount importance entirely, credibility also if not largely, dependent and of the evidence. witnesses trial, about the condi- jury conflicting At the heard evidence Subject the at the when the paint Property petitioner tion of indicated, Queen. Queen resided there with Ms. As petitioner. testimony testified on behalf of the Her is set the testimony forth hereinbefore. That was countered evidence tend- respondents, largely documentary who offered a Queen. Perlberg, respondent, to contradict Ms. Daniel ing Realty, the and owner of Daniel partial and also landlord documentary Realty paid evidence that Daniel to have offered subject the before Ms. premises wallpapered inside of in, assertions of Lanay suggesting any moved Queen were not to peeling flaking paint by petitioner or chipping, respondents Inspection be believed. The also offered Lead City that was conducted the Baltimore Health Report Queen and Ms. resided at the Department petitioner when they proffered, inspector who property. Significantly, circle that there “Loose Report did not completed Subject Property. According in the paint/plaster” their contention that there respondents, supported this further Subject chipping, peeling flaking paint was no or when the and Ms. lived there. The Property petitioner Queen’s that Ms. respondents presented parents, also evidence premises, inspected lessees the property upon signing the lease and found no chipping, peeling flaking paint.
“In the interest of the orderly
justice,
administration of
expense
avoid useless
to the state and to
in its
litigants
courts, it
long
has
been the settled policy of this
not to
[CJourt
reverse for harmless error.”
Johnson & Higgins,
Inc. v.
574, 588,
(1933).
Simpson,
Md.
163 A.
justification for
policy
this
is the need to conserve scarce
resources, which is accomplished when the litigants are not
forced to relitigate a case where the error had no impact on
the outcome of
cases,
the trial.
Id. In civil
the complaining
has the
party
burden of establishing that
the trial court
*40
committed an error and that the error was prejudicial. Flores
Bell,
27, 33,
v.
398
716,
Md.
(2007);
919 A.2d
719
Harris v.
Harris, P.A.,
310, 319,
356,
(1987)
310 Md.
529 A.2d
360
(citing
Shortall,
321, 330,
Beahm v.
279 Md.
1005,
368 A.2d
1011
(1977)). There is prejudice,
concluded,
our cases have
when
the error
influenced the outcome of the case. Benik v.
Hatcher,
507, 537,
358
10,
Md.
750
(2000);
A.2d
26
Beahm v.
Shortall,
321,
279
330-31,
Md.
1005,
368 A.2d
(1977);
1018
Kuenne,
State Roads Comm’n v.
232,
240
235,
Md.
213 A.2d
(1965).
567, 568
In order to determine whether an error was
prejudicial, an appellate court must proceed on a case-by-case
Beahm,
basis.
332,
As we have that, the majority has held the permitting respondents to read Queen’s Ms. pre-trial deposition testimo- to ny jury the as substantive evidence during their case-in- 596, at 318-19. at 976 A.2d 409 Md. chief was error. See hurdle, established cleared the first Thus, has petitioner the harmless, the that the error concluding the error. Queen’s of Ms. portions that the on the fact majority relies the jury by respon- to the that were read pre-trial deposition attention when jury’s to the brought been already dents had the case-in- during plaintiffs’ was cross-examined “In It reasons: A.2d at 319. Md. at chiеf. See 409 words, Queen’s features of Ms. damaging the other Respon- jury, regardless before the already were testimony their during the deposition use of duplicative potentially dents’ case.” Id. defense First, the fact of reasons. for two majority wrong with the that, technical malfunction due to a
the matter is trial, during respon- during device recording audio case-in-chief, inability parties with coupled dents’ of Ms. portions what recall, precisely to know impossible it is jury were read testimony pre-trial deposition Queen’s 409 Md. case-in-chief. See respondents’ during recollection, and fact, independent no having at 306. In A.2d stipulate as could do agree, parties all being unable have been Queen’s deposition might of Ms. portions to which respondents’ marks made based on jury, read to the the state of given In my opinion, in their trial notes.4 counsel hurdle. record, has cleared second the petitioner this *41 minimum, identity an submit, there must be I at prevail, To Ms. impeach respondents presented what the between stipulation provided: 4. The case, they permitted Appellees requested that be their “At the close of discovery deposition of Catherlina portions of the read certain case, initially party Queen to this Queen was a evidence. Ms. into case, but, Appellants’ her claims upon Appellees’ Motion at the end testimony following stipulate that the parties were dismissed. The during the may read into evidence deposition have been from the independent of what was recollection parlies have no trial. The however, evidence, following is what was the list actually into read reading possible their trial notes for by Appellees’ counsel in marked into evidence at trial....”
Queen’s testimony during petitioner’s the case-in-chief and they during what read into the record as substantive evidence To the their case-in-chief. extent that the substantive evi- evidence, differs from the because it is impeachment dence only against admissible as to Ms. and inadmissible the it the There are petitioner, prejudices petitioner. glaring in the respecting question. identity record this gaps by conjecture, the evidence cannot be established surmisе or different, speculation. To hold otherwise is to a hitherto apply standard and an unrequired, place impossible burden on the petitioner. indicated,
As do not as to what parties agree was read seen, As have jury. only we of Ms. portion Queen’s deposition relating to the residence of her step father was read into the record her during cross-examination Thus, it respondents. only portion that, case-in-chief, when read in respondents’ could argu- ably finding be the basis for harmless error. that it Assuming was read into the record during case-in-chief, the respondents’ that, petitioner argues case,5 during the other respondents’ portions 5. The good expansive marked trial counsel are deal more impeachment pursued during petitioner’s than the line of case-in- chief: (“Counsel'’) name, “[Respondents’ you your Counsel Can state J: record, please? Queen. Queen]: “[ Catherlina Road, you “[Cotinsel]: And before 3630 Reisterstown where did live? Queen]: Biddle, 911 East “[Ms. Biddle Street. off of Wilcot. you When “[Counsel]: did first move into there? Queen]: “[Ms. I don't I remember. don't know. I don't remember that. you you Do know “[Counsel]: if lived at 911 Biddle East Street more year year? than a or less than a Queen]: I am not "[Ms. sure. you living "[Counsel]: Do ever remember East Preston Street? Queen]: Say again it "LMs. you living "[Counsel]: Do ever remember at 911 Preston Street? Queen]: “[Ms. Yes. Biddle, "[Counsel]: Is 911 East they Preston and 911 East are same address? *42 Biddle, Queen]: living you, it not we were Whoever told is "[Ms. Preston Street. Lanay April had Brown? old was Brown when she How "[Counsel]: sure, was, Queen]: say—I probably will am not but I will She I "[Ms. say 15. born, any Lanay April have involve- did Brown After "[Counsel]: raising anything like that? ment in her or Objection. BRANDT Counsel]: “Ms. [Plaintiffs' No, Queen]: ma'am. "[Ms. Lanay biological Brown's father? Who is "[Counsel]: Queen]: Danny Thompson. "[Ms. know, gained legal guardianship you you formal If when "[Counsel]: Brown, any rights Thompson relinquish or Lanay did Mr. have to anything asking I don't know how it works. like that? I am because either, Queen]: gave rights, he them He don't have no because "[Ms. up. legal given up you when obtained Would he have them "[Counsel]: guardianship Lanay? Queen]: Yes. "[Ms. Brown, respect April you when true with Is same "[Counsel]: rights relinquish parental gained legal guardianship, did she her Lanay Brown? too, Queen]: gave up, yes. it She "[Ms. Danny Thompson you where is now? Do know "[Counsel]: No, don't, no, Queen]: I ma'am. "[Ms. you if he Do know is alive? "[Counsel]: Queen]: alive, He but I don't know where he at. "[Ms. you April where Brown is? Do know "[Counsel]: at, Queen]: I don't know where she is either. She is alive. “[Ms. you your at Road? Did father live with 3630 Reisterstown "[Counsel]: No, Queen]: I people’s know business. don’t I don’t those "[Ms. know. you your father lived You don’t know if with "[Counsel]: Reisterstown Road? there, wasn’t—no, Queen]: lived he I I am not sure. He but "[Ms. there, so, sayI come no. didn't there, He lived but he didn’t come there? "[Counsel]: Queen]: everything, paid paid He bills. "[Ms. referring to Robert Brown? We are "[Counsel]: Queen]: Yes. “[Ms. actually staying you Brown was Do know where Robert "[Counsel]: sleeping? Queen]: apartment somewhere. He had his own "[Ms. you the landlord of 3630 Reisters- Do know the name of "[Counsel]: town Road? Ma'am, Queen]: I know. I don’t. don’t "[Ms. *43 portions deposition may have been read into the record asserts, as substantive evidence also. Specifically, she based on the statement respondents’ during closing argument,6 that it is that the likely respondents jury read to the portion Queen’s deposition where testimony she did not recall that the subject had been property newly wallpapered and those portions which Ms. Queen admitted that the respondents occasionally people subject sent to the property to make record, repairs. On this it is not even clear that the same portion Queen’s of Ms. deposition used respondents their cross-examination of Ms. Queen during the plaintiffs’ you speaking “[Counsel]: Do remember ever with the landlord at 3630 Reisterstown Road? Queen]: “[Ms. I don't know. “[Counsel|: you Do primarily know who dealt with the landlord at 3630 Reisterstown Road? Queen]: or, mother, My maybe, my My “[Ms. mother older sister. sick, paying the bills. you Which older referring “[Counsel]: sister are to? Queen]: “[Ms. Annis. you landlord, many Do "[Counsel]: know how property times the or
manager, anyone on their chipping behalf came out to fix the and peeling paint? Queen]: about, say, before, “[Ms. I will just three times while we lived there. Now, Road, prior “[Counsel!: you 3630 Reisterstown testified that Street, you lived at 911 Preston is that correct? Queen]: "[Ms. Yes. you “[Counsel]: Who lived with at 911 East Preston Street? Queen]: Annis, Lakisha, April, “[Ms. I Robin. don’t know after that. born, what, Lanay After any, "[Counsel]: Lanay if contact has biological had with her father? “Ms. BRANDT Objection [Plaintiffs' Counsel]: Queen]: nothing “[Ms. He do don’t for her.” During closing arguments, 6. respondents counsel for the said the fol- Queen. lowing, part: “Testimony in relevant put of Ms. I all the evidence here. Ms. testified chipping peeling there was paint property, at the no you doubt about it. But I ask to think about portions when I read of her anything she didn’t remember about the house. She didn’t remember if father and mother lived there. deposition they fact she said in her didn't. She didn’t remember the wallpaper whole new when I asked her.” their case-in- jury during was also read to case-in-chief position accept respondents’ But even were we to chief. Queen’s deposition of Ms. they portion read the same case-in-chief, theirs, and in it must also Lanay both in Brown’s closing in their respondents suggested as the accepted, be more than that. they read argument, impeaching there is a difference between important, As pre-trial deposition with her witness on cross-examination as testimony jury that same testimony reading a witness is im- example, For when substantive evidence. *44 state- prior with a inconsistent on cross-examination peached ment, be used for the truth of its that statement cannot assertion, hearsay it not fall within a assuming that does (Edward Evidence, 34, § at 67 exception. See McCormick on ed.1972). Rather, statement the inconsistent Cleary, W. 2d chooses, negative if it to draw a by jury, can be used the so Evi- credibility. McCormick on inference on that witness’s ed.1972). (Edward 33, dence, Cleary, § W. 2d Substan- 66 hand, Queen’s which is how Ms. tive evidence on the other judge erroneously when the trial categorized was deposition is so jury, to read it to the not respondents the permitted can used not in evidence be limited its effect. Substantive the of the witness credibility as a foundation to diminish only oath, but it inconsistent statement under who made a prior the to establish the truth of jury also can be used the Evidence, on asserted in that statement. McCormick matters ed.1972). (Edward Thus, to Cleary, 2d due § at 601 W. used, evidence in which it can be substantive the dual nature (cid:127) evi- impeachment than quality simple takes on a different testimony, dur- Queen’s deposition For Ms. example, dence. case-in-chief, been used the the could have ing petitiоner’s only impeach Queen. to on cross-examination respondents however, al- evidentiary ruling, The trial erroneous judge’s reconfigure the adverse amplify lowed the to respondents the testimony by permitting of Ms. impact Queen’s deposition the during use it as substantive evidence to respondents does not majority’s opinion The case-in-chief. respondents’ distinc- evidentiary this important mention or appreciate even on the of it. impact jury’s its use potential tion or critical, in credibility in a case which important, More error, the on jury presented of the trial court’s as a result different, with evidence of occasions multiple, qualitatively plaintiff testimony in an witness’s important inconsistencies early first came exposure and her Its pre-trial deposition. trial, case, The proper. and it was during plaintiffs case, in the defendants’ well into the presentation second came Moreover, inconsistency presented the evidence of case. occasion, which was not even the same evidence as the second was much more arguably on the first—it presented extensive, incidents and instances—was met covering more timely objection. Overruling with a and meritorious ob- jection respondents to call attention to permitted it, and introduce inconsistency, highlight earlier evidence of addition, offering other inconsistencies. later in the trial and as substantive evidence was
testimony to, did, so, the inconsistencies designed emphasize, unduly contained. they more jury greater evidence exposed inherent, that the more
danger, jury give weight which is will See, e.g., to that evidence than it is due. United States v. (6th Cir.1993) Walker, (making point F.3d *45 testimony during jury the context of “read back” of a witness’s deliberations) Padin, v. 787 F.2d (citing United States (6th Cir.1986)); Varsalona, 710 United States v. F.2d (8th Cir.1983). 418, 421 late in Reading deposition testimony trial, testified, after some deponent the after the has and the has earlier been read into the record deponent’s deposition stand, certainly to the on the witness could impeach deponent have, had, And, and I that effect in this case. as submit indicated, evidence, case, in matter. this timing does When influence, it and deposition, may likely the well presented, case, jury did in this the the ascribes to it. Not importance Ms. only permitted Queen’s were the to revisit respondents of which it highlight discrepancies, cross-examination and were to apprised jury, they permitted—when then do so and violative of the Rules—to addi- inappropriate present discrepancies, presented, tional not earlier so as to be able to argument buttress their that Ms. was not to be be- lieved. majority’s harmless error determination is based not Indeed, an but on
only incomplete faulty logic. record also ask, reading Queen’s pre-trial deposition one must “If Ms. testimony prejudicial petitioner’s was not or harmful to the case, why respondents then would the do it?” This is the question majority that the cannot answer. That the respon- to, did, dents read sought portions Queen’s deposi- of Ms. evidence, testimony jury, tion to as substantive during they their case-in-chief makes clear that thought those case, portions their and that such evidence was helped prejudi- petitioner. They cial to the viewed the evidence as solidifying and, Queen’s the attack on in credibility doing, harming so petitioner’s case. case, In this the petitioner recognized prejudice objection. There interposed timely nothing more she party objection could do. A who on an not prevails should bear the brunt of an erroneous trial ruling, urged by party who did not. There should be some for an consequence and, ruling correspondingly, erroneous some reward to a vigilant litigant, especially where there is no in that lapse not, If there is future vigilance. litigants given “green are evidentiary rules to the light” push furthest extent that an possible, knowing appellate likely court is not to order a new trial. If the evidentiary rules this State are to mean then courts must create anything, appellate incentives trial these rules litigants apply correctly the first instance. I I join Judge Murphy’s dissent. also dissent. MURPHY, J.,
Concurring Dissenting Opinion by & which BELL, joins only. in dissent C.J. dissent, I with much in
Although agree
Judge
Chief
Bell’s
I
am not
that Petitioners were
persuaded
actually prejudiced
*46
that
Queen’s
error
occurred when Ms.
used by Respondents
during
presentation of their evi-
dence.
I therefore agree with the majority that Petitioners
are not entitled to a nеw trial on that ground. For the
follow, however,
reasons that
I dissent from the
holding
“the trial
judge did not abuse her discretion in allowing
Respondents
introduce into evidence the Un-Redacted
Report.”
ARC
State,
540,
Sims v.
319 Md.
(1990),
affirming ruling prohibited murder defendant from presenting evidence of the “rowdy” victim’s behavior several hours killed, before the victim was shot and this Court stated:
The inferential value of proof of the existence of a condition at one in time point prove its existence at a later point of depends time on a variety of circumstances.
When the object, condition, existence of an quality, or tendency issue, at a given time is in the prior existence of it is in experience human some indication of its probable persistence or continuance at a later period.
The degree of probability of this depends continuance the chances of intervening circumstances having occurred to bring existence to an end. The possibility such circumstances will depend entirely almost on the nature of specific thing whose existence is in issue and the partic- ular circumstances it in affecting the case in hand.... So far, then, as the concerned, interval time no fixed rule down; can be laid the nature of the thing and the circum- stances of particular case must control. (Emphasis in original). (3d ed.1940).
2 Wigmore
§
on Evidence
Kurz,
In . . .
Stitzel v.
18 Md.App.
308 A.2d
cert.
denied,
(1973),
When it is shown that a condition existed at a certain time, and the condition is one which its nature is relatively permanent, rather than transitory or changea- ble, it is rational to infer that the same condition existed *47 622 shown, time length for a of time and after the
before circumstances, unless the with consistent reasonably condition a in the change from which there is evidence inferred. reasonably be could however, likely change, more conditions dealing In with earlier condi- that evidence of the recognized this has Court value to be admissi- probative not have sufficient may tion ble. in original). 555-57, (Emphasis at 1324-25. at 573 A.2d
Id.
reversed a
Stitzel,
Special Appeals
the
of
supra,
Court
Baltimore
entered in favor of
that had been
vеrdict”
“directed
sustained
a
man who
young
the
of
County
against
parents
and
11,
being
automobile
when an
1970
injuries
September
fatal
on
a
the
and struck
friend left
road
the deceased’s
driven
occurred
that the accident
The
testified
driver
utility pole.
indicating
right,
a curve
sign
a road
after he passed
Unfortunately,
of that curve.
anticipation
slowed down
County’s
to Baltimore
According
was “incorrect.”
sign
road
(1)
sign
“incorrect”
when the
Traffic Engineering,
Director of
have
1, 1970,
should
Department
the
May
was installed
(2)
location,” and
at this
sign
curve
“a left reverse
installed
5, 1970,
day
on which
on October
mistake was corrected
be in the
the curve to
sign “showing
removed
Department
curve.” Id.
actual
to the direction
opposite
direction
at 433.
308 A.2d
case-in-chief, Baltimore
plaintiffs’
of the
At the conclusion
was
sign
no evidence that
that “there was
County argued
accident,” and the Circuit Court’s
of the
incorrect at the time
no
“that there was
finding
on its
verdict” was based
“directed
sign,
of an erroneous
knowledge
had
County
that the
evidence
sign
erroneous
of when the
evidence
any
nor was there
holding that
A.2d at 437. While
Id. at
became so[.]”
County,”
Baltimore
a verdict for
error to direct
was
“[i]t
stated:
Special Appeals
Court
in this case that
have found
could
jury
properly
County
May
on 1
by Baltimore
incorrectly
erected
sign corrected on
until it was
way
remained
1970 and
sufficient to
that the evidence was
1970. It follows
October
County
negligent
Baltimore
find that
jury
permit
the injury.
cause of
proximate
was a
negligence
that its
538,
Because the condition windowsill) evidence door, “transitory changeable,” or a permit in 1999 does not simply condition of the paint existed in 1994. inference that the same condition rational in 1995 Moreover, sold the Respondents property the fact that *48 the condition change [of from which a in constitutes “evidence these circum- reasonably could be inferred.” Under paint] the stances, unfairly prejudiced Petitioners were I would hold that (1) exclude the Un- erroneous failure to the Circuit Court’s (2) Respondents’ of argument and Report, Redacted ARC “circumstantial constituted relevant report that this counsel or peeling, never paint chipping, evidence” that “the lived there[.]” while flaking [Petitioners] judges trial with provides Rule 5-403 Maryland While evidence, trial do not judges to exclude relevant discretion Rule Maryland irrelevant evidence. have discretion to admit that, that is not 5-402, in pertinent part, provides “[e]vidence the issue of whether not To resolve relevant is admissible.” circum- constituted relevant Report ARC Un-Redacted case, may helpful hypothesize in it be stantial evidence this lead damage alleged paint action for jury money a trial a (1) later this Assume that year. that will take exposure place subject property child lived in the family injured of the (2) 1997, owned this property 1994 to the defendants who from (3) it in an ARC that of time sold during period until subject property who never inspector, year, that and during tests for lead conducted “subsurface” the inspec- includes a section in which report a prepared that, paint much of the to be noted “because I observed so tor of the surfaces painted and almost none chipping peeling, “ (4) ‘intact,’ took inspector were and the ARC property peeling paint. and Could photographs chipping Should report introduce the entire into evidence? plaintiffs objection overrule the defendants’ the Circuit Court that he inspector’s testimony ARC observed and chipping in 2002? peeling paint photographs Would taken in 2002 be admitted as circumstantial evidence of what the subject property looked like from 1994 to 1997 without foundational testimony that these photographs fairly accurately and showed the condition of the those paint during years? I am persuad- ed a beyond reasonable doubt that the answer to each of these
questions should be “no.”
The trial judge must order inadmissible portions otherwise admissible records be excised redacted. For example, hospital records include information about whether a person injured in an auto accident was or wearing was not a seatbelt, injured whether a person while a operating motorcycle wearing motorcycle was or was not helmet. personal injury accidents, however, actions out of arising such (1) evidence that the was not plaintiff using his or her seatbelt Article, § is prohibited by 22-412.3 of the Transportation (2) evidence that the plaintiff was not his or her wearing motorcycle § helmet is prohibited by 21-1306 the Transpor- tation Article. It clear that a defendant-driver could not get prohibited evidence before the jury merely because the plain- tiffs expert medical reviewed an “un-redacted” hospital record *49 the prohibited included information. It is clear equally that Respondents should not have been to permitted get Un-Redacted before the Report jury. ARC
Moreover, the record shows that to the Respondents argued Circuit Court that the Un-Redacted Report ARC should be admitted on the ground that it had been relied upon by experts, Petitioners’ and then argued jury this exhibit their claim that supported paint was intact while circumstances, Petitioners lived in the property. Under these abuses, “to curtail the exhibit into evi- ruling admitting [the dence subject should review as to the actual use made of be] object.” al., v. Company, Smith Ohio Oil et 10 Ill.App.2d (1956). 67, 526, 134 N.E.2d 531 I would therefore hold that the “actual use Respondents [that made of Un-Redacted Report] to be an abuse of the proved ruling.” Id.
625 that, I recognize examination, his direct during Dr. Paulson testified that “there paint was lead ... on multiple surfaces at that address ... when the home was inspected May of 1999.” Because evidence of the condition of paint in 1999 does not permit rational inference that the same condition 1994, existed in this testimony clearly irrelevant. The shows, however, record that Respondents did not object to testimony this and did not that it request be stricken. Under circumstances, these Respondents were not entitled to intro- duce their own irrelevant evidence “as an answer to [Dr. irrelevant testimony.” Paulson’s] & Susquehanna Baltimore (1853). R.R. 242, Co. v. Woodruff, Md. Weir,
In Lake Roland Ry. Elevated Co. v. 86 Md. 37 A. (1897), this Court stated: If party’s] irrelevant, evidence [a be clearly it should not be admitted on the ground that other irrelevant evidence had already introduced, been unless latter was admitted the Court after objection. If the irrelevant evidence is offered one party, the other object it, side should if it given be before its irrelevancy apparent, the Court should strike it out on proper application.
Id. at
976A. 2d 336 In re FAITH H. 35, Sept. Term,
No. 2009.
Court Appeals Maryland.
July 2009.