Patricia Lamalfa v. Janis Hearn et al.
No. 39
IN THE COURT OF APPEALS OF MARYLAND
September Term, 2017. Filed: February 2, 2018
Argued: December 4, 2017. Circuit Court for Baltimore City Case No. 24-C-14-005520
Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ. Opinion by Watts, J.
EXPERT WITNESS TESTIMONY – BASES OF OPINION TESTIMONY BY EXPERT – MARYLAND RULE 5-703 – FACTS OR DATA REASONABLY RELIED UPON BY TESTIFYING EXPERT – DISCLOSURE TO JURY – ELEMENTS FOR DISCLOSURE – Court of Appeals held that trial court did not abuse its discretion or err in “admitting” plaintiff‘s post-accident medical treatment records into evidence under
In Maryland, it is well established that “[a]n expert may give an opinion based on facts contained in reports, studies, or statements from third parties, if the underlying material is shown to be of the type reasonably relied upon by experts in the field.” U.S. Gypsum Co. v. Mayor and City Council of Balt., 336 Md. 145, 176, 647 A.2d 405, 420 (1994) (citations omitted). This Court has stated that “the underlying reports, data, or statements themselves may be admitted into evidence for the purpose of explaining the basis of the expert‘s opinion.” Id. at 176, 647 A.2d at 420 (citations omitted). This process is formalized under
This case concerns admission, under
Against this backdrop, we consider whether the circuit court properly admitted four medical records into evidence under
BACKGROUND
On October 14, 2011, Petitioner, a resident of Brooklyn, New York, was in Maryland to attend a family member‘s wedding. On the way to the wedding, Petitioner was sitting in the rear passenger seat of a small SUV that was being driven by her son, Steven Lamalfa (“Steven“). Steven drove the SUV southbound on Interstate 95 and onto an exit ramp, where it came to a complete stop. While stopped, the SUV was rear-ended by a vehicle that was being driven by Respondent.
Emergency medical technicians responded to the scene, but Petitioner did not seek medical treatment at that time. Petitioner, Steven, and the other occupants of the SUV—Steven‘s girlfriend, Gina Illardo; Petitioner‘s friend, Brigitte Rivera (“Rivera“); and Steven‘s infant daughter—eventually left the scene of the accident and attended the wedding. After the wedding, Petitioner and the SUV‘s other occupants went to a hotel for the night. The next morning, Petitioner went to the emergency room at Mercy Medical Center (“Mercy“) in Baltimore City complaining of lower back pain and some pain in her left forearm. Petitioner was treated at Mercy, released that same day, and returned to New York that night.
On October 21, 2011, a week after the accident, Petitioner sought medical treatment from Yury Koyen, M.D., of Relief
In October of 2011, Petitioner also started experiencing severe abdominal pain; however, a CT scan of Petitioner‘s abdomen and pelvis performed on October 31, 2011, was normal. Later, on March 7, 2012, Sampath Kumar, M.D., performed surgery on Petitioner to repair an epigastric hernia. Apparently, the epigastric hernia was a recurrent issue for Petitioner, who had surgery to repair an epigastric hernia in 1984.
In the meantime, on November 7, 2011, Petitioner had an MRI of her right shoulder performed, which revealed a rotator cuff injury. In December 2014, over three years later, Petitioner visited Jaspreet Sekhon, M.D., who ordered another MRI, which revealed a rotator cuff tear. Thereafter, Petitioner underwent arthroscopic surgery on her right shoulder.
On September 23, 2014, Petitioner filed in the circuit court a complaint against Respondent, alleging negligence.1 Specifically, Petitioner alleged that Respondent negligently operated her motor vehicle and caused Petitioner‘s injuries. Petitioner sought damages in excess of $75,000. From February 16 to 18, 2016, the case was tried before a jury. At trial, as part of the plaintiffs’ case, Petitioner and Steven testified,2 and videotaped de bene esse depositions of Dr. Koyen, Dr. Kumar, and Dr. Sekhon were played for the jury.3
Petitioner, who was fifty-four years old at the time of trial, testified that she worked as a hairdresser from the age of eighteen until approximately within a year of the accident, and that she did not have difficulties performing her job or otherwise have problems with her right shoulder prior to the accident. Petitioner acknowledged, however, that, in 1984, she had hernia repair surgery. As to the accident on October 14, 2011, Petitioner testified that, when the SUV in which she was a passenger was rear-ended, she “was thrust forward, sideways[,]” she hit her head, and she recalled her “shoulder or something hitting [her right] shoulder or grabbing [her] shoulder and [her] left knee.” Petitioner testified that, the evening of the
As to her right shoulder, Petitioner testified that after the accident she began experiencing right shoulder pain that “got progressively worse.” According to Petitioner, she was unable to pick up her grandchildren, lift pots and pans, or stretch too high because her right shoulder pained her and would “lock in place.” Petitioner testified that she did not seek immediate medical treatment for her right shoulder because she had moved in with her parents, and her mother was already providing care to her stepfather, who had undergone full knee replacement surgery. Petitioner testified that, in December 2014, she visited Dr. Sekhon, who recommended surgery for her right shoulder. Petitioner testified that she underwent arthroscopic surgery on her right shoulder, and that recovery following the surgery was “[l]ong and arduous.” According to Petitioner, for approximately twelve or thirteen weeks after surgery, she had to wear a sling with a bolster on her arm at all times, except when bathing. Petitioner testified that, while wearing the sling and bolster, “[s]leeping was horrendous and still is.” And, Petitioner testified that her right shoulder was “still impaired[,]” that she could not “lift it past a certain level[,]” and that she could not “bear any weight on it.”
On Petitioner‘s behalf, Dr. Koyen testified by video deposition that, to a reasonable degree of medical certainty, among other things, Petitioner‘s hernia and the rotator cuff tear to her right shoulder were caused by the October 14, 2011 accident. Dr. Koyen opined that the rotator cuff tear to Petitioner‘s right shoulder, as seen on the MRI of November 7, 2011, was consistent with a traumatic event, and is a common injury following a motor vehicle accident. Dr. Koyen acknowledged that the records from Petitioner‘s visit to the Mercy emergency room from October 15, 2011 (“the Mercy record“) did not include any mention of complaints of right shoulder pain or abdominal pain. Dr. Koyen testified that, on November 22, 2011, he prepared a report of his treatment of Petitioner, covering the period from October 21, 2011, the date of his first examination of Petitioner, to the date of the report (“the Koyen record“). Dr. Koyen acknowledged that, during Petitioner‘s initial visit on October 21, 2011, she did not complain of abdominal pain. Dr. Koyen testified, however, that, in his report, he noted that Petitioner complained of “severe pains in [her] abdominal and pelvic area[,]” and, as a result, a CT scan of Petitioner‘s abdomen was performed on October 31, 2011. Dr. Koyen acknowledged that the CT scan of Petitioner‘s abdomen was normal.
Dr. Kumar testified by video deposition that he performed surgery for a recurrence of an epigastric hernia. Dr. Kumar testified that, on March 19, 2012, after the surgery to repair the hernia, he saw Petitioner for a routine follow-up appointment, that she was healing well, and that he did not see her again after that visit. Dr. Kumar testified that, to a reasonable degree of medical certainty, Petitioner‘s epigastric hernia was caused by the accident, and,
Dr. Sekhon testified by video deposition that, several years after the accident, he examined Petitioner and ordered an MRI of her right shoulder, which revealed a rotator cuff tear. On cross-examination, Dr. Sekhon acknowledged that he was seeing certain medical reports for the first time at deposition—specifically, the 2011 MRI, the Mercy record, and the Koyen record. Dr. Sekhon also conceded that he did not have any of Petitioner‘s medical records preceding the accident to determine if she had injuries or pain to her right shoulder before the accident.
Respondent‘s case consisted of her testimony and the testimony of Louis Halikman, M.D., an orthopedic surgeon. The circuit court accepted Dr. Halikman as an expert in orthopedic surgery, and ruled that Dr. Halikman would be permitted to testify “as a physician” as to other matters, but would not be permitted to offer an opinion outside of the field of orthopedic surgery. Dr. Halikman testified that, on December 28, 2015, at Respondent‘s counsel‘s request, he examined Petitioner. During his examination, Dr. Halikman noted that Petitioner is left-handed, and that her upper arms each measured the same circumference. According to Dr. Halikman, these observations were important because he would have expected Petitioner‘s right arm to have been substantially smaller in girth than the left, given that her right arm was not her dominant arm and that she had recently had surgery on her right shoulder. Dr. Halikman testified that “[t]he fact that her muscle bulk is the same on both sides [told him] that she is probably using both of her arms in as close to natural fashion as possible.”
Dr. Halikman testified that, in addition to taking Petitioner‘s medical history and examining Petitioner, he reviewed and relied upon four of Petitioner‘s post-accident medical treatment records in formulating his opinions as to Petitioner‘s injuries. Specifically, Dr. Halikman testified that he relied upon the following four medical records: (1) the Mercy record, marked as Defense Exhibit 2; (2) the Koyen record, marked as Defense Exhibit 3; (3) an “Initial Chiropractic Examination” report prepared on October 25, 2011, by an unidentified chiropractor (“the Chiropractic record“), marked as Defense Exhibit 4; and (4) an “Initial Consultation” report dated December 13, 2011, by Aleksandr Levin, M.D., of Diagnostic Medicine, P.C. (“the Levin record“), marked as Defense Exhibit 5.
Respondent‘s counsel offered the Mercy record into evidence and Petitioner‘s counsel objected “to the document coming in[.]” At a bench conference, Petitioner‘s counsel explained:
Your Honor, I would object to the document coming in. The expert can certainly testify to it and obviously all his testimony is evidence in the case. However, the document itself is a hearsay document. It contains hearsay statements. It contains expert findings, opinions, and it contains secondary and probably even tertiary hearsay statements. . . . I would also, Your Honor, argue that in permitting some records in and not others also is far more prejudic[ial] than probative in that it‘s going to allow certain documents
to go back to the jury room without the benefit of having all of the documents. So on all of those grounds, Your Honor, I would object.
Respondent‘s counsel responded that Petitioner “had the opportunity to put in any documents that he wanted to and chose not to do it. It is a document that [Dr. Halikman] relied on in forming his opinion. And I believe it is, you know, allows it to come into evidence.” Respondent‘s counsel urged that the Mercy record “should come into evidence.” Immediately thereafter, the circuit court stated: “Objection‘s overruled. So admitted. It‘s being relied on by this expert in his review and opinion.” The circuit court reiterated: “Objection is noted. However, Court overrules the objection and allows its admission. As the witness testified that he reviewed this and relied on it in reaching his opinion.” Thus, the Mercy record was admitted into evidence.
Respondent‘s counsel offered into evidence the other three medical records that Dr. Halikman relied upon in forming his opinion—i.e., the Koyen record, the Chiropractic record, and the Levin record. Petitioner‘s counsel made the “[s]ame objection” as to admission of those medical records, and the circuit court overruled the objections and admitted the medical records into evidence.
The Mercy record, dated October 15, 2011, consisted of sixteen pages, including a page containing a section labeled “History of Present Illness,” that stated that Petitioner had been “involved in a rear-ended motor vehicle crash” the day before. That section noted that Petitioner “immediately, upon impact, reached over to the left side of the car to secure [her granddaughter‘s] car seat[,]” and that Petitioner “did not experience any immediate back pain[.]” The section stated that, over the course of the afternoon and evening following the accident, Petitioner began to experience “the onset of left-sided lower back pain[,]” and, at the time of her visit to Mercy, was complaining of left-sided lower back pain and “of a much lighter pain in the left forearm.” In a section labeled “Physical Examination: General,” the Mercy record noted that Petitioner “ambulate[d] . . . with a slight limp but not much difficulty[,]” and that Petitioner “appear[ed] in no acute distress.” The “Physical Examination: General” section stated that Petitioner‘s abdomen was “[s]oft[,]” and that there was “positive straight leg raising, [but that] she ha[d] difficulty with the lateral oblique motion on the left side.” As to Petitioner‘s extremities, the Mercy record reported that Petitioner had “full range of motion of all joints.” The Mercy record stated that the treatment plan for Petitioner included discharge with instructions to rest, to apply heat to affected areas, and to take over-the-counter pain medication as needed. The discharge summary stated that Petitioner should follow up with her doctor if her symptoms did not begin to improve after a week.
The Koyen record, prepared on November 22, 2011, consisted of five pages. In the Koyen record, Dr. Koyen stated that he first examined Petitioner on October 21, 2011, one week after the accident, and that Petitioner reported “sustain[ing] injuries to the head, left shoulder[,] and coccyx[, i.e., tailbone].” In a section labeled “Chief Complaints,” Dr. Koyen observed as follows:
The patient complains of the flashbacks of the accident; neck pains radiating to the right arm and upper back, and to the left arm and forearm; low back pains; left hip pains; periodical numbness in the right hand; right shoulder pains; weakness in the left arm; fear of sitting in a car; coccyx pains worsened by sitting; claustrophobia after accident.
In a section labeled “Recommendations,” Dr. Koyen recommended, in relevant part, that Petitioner: begin physical therapy three to four times per week for her right shoulder, among other areas; continue to take Aleve; consider undergoing an MRI of her right shoulder if problems persisted; and have an X-ray of her right shoulder. In a section labeled “Treatment,” Dr. Koyen detailed the treatments, tests, and procedures that Petitioner had undergone following her initial appointment and the results. Dr. Koyen reported that, “[b]ecause of severe pains in the abdominal and pelvis area, CT scan of the abdomen/pelvis was performed and showed no acute inflammatory processes[.]” Additionally, Dr. Koyen stated that, “[b]ecause of severe pains in the right shoulder, MRI of the right shoulder was performed and revealed possible impingement of the supraspinatus muscle and rotator cuff intrasubstance tear involving supraspinatus and infraspinatus tendons.” Dr. Koyen diagnosed Petitioner with, among other things, “[r]ight shoulder trauma with rotator cuff tear and impingement” and “[a]bdominal trauma.”
The Chiropractic record, consisting of five pages, was completed by an unidentified chiropractor on October 25, 2011, the date that Petitioner was examined. The Chiropractic record contained handwritten notations describing the reasons for Petitioner‘s visit, Petitioner‘s past medical history, and Petitioner‘s then-present complaints. In the “Present Complaints” section, the chiropractor circled “Neck Pain & Stiffness Left/Right” that “Radiates” to the “Left . . . Shoulder[,]” right shoulder pain, and left arm pain with “Numbness & Tingling Down to . . . Forearm[.]” The section labeled “Orthopedic & Neurologic Tests” showed that the chiropractor did not perform a “Shoulder Depression Test” used to detect “the presence of adhesions or injury to the soft tissues of the cervical spine[,]” or three other shoulder tests used to detect “impingement, tears or pathology[.]” In the “Diagnosis” section, the chiropractor circled diagnostic codes and diagnosed Petitioner with thoracolumbar radiculopathy, lumbar, thoracic, and cervico-thoracic joint dysfunction, a whiplash injury, headaches, and spinal subluxation. The chiropractor did not circle the diagnostic codes for shoulder injury or shoulder pain.
The Levin record, dated December 13, 2011, consisted of three pages, and was titled an “Initial Consultation” and was addressed to Dr. Koyen. Dr. Levin reported that Petitioner complained “of right shoulder pain, lower back pain radiating to the left leg, left knee pain, and weakness in the left leg.” In the section labeled “Physical Examination,” Dr. Levin noted that Petitioner was “in no acute distress[,]” that her abdomen was “[s]oft, not distended, no tenderness[,]” and that an examination
Based on his review of these medical records and his examination of Petitioner, Dr. Halikman opined, to a reasonable degree of medical certainty, that Petitioner “did not sustain an injury to her right shoulder as a result of th[e] accident.” Dr. Halikman explained:
First of all, as I mentioned, there is no immediate complaint of pain. If you injured your shoulder you don‘t need someone to tell you that it is injured. You would know it, you would be pointing it out to someone you were seeing. Also, when we look at the results of the imaging studies, there was -- the shoulder problem was clearly degenerative and it progressed over a period of time which is what you would expect. Degenerative conditions by their very nature progress over a period of time.
In addition, [Petitioner]‘s occupation as a hairdresser is one of a number of different occupations that predispose patients to shoulder problems. . . . [H]airdressers, . . . anybody who works with their arms in elevated positions develop . . . impingement. And that is the rotator cuff rubbing underneath the top of the shoulder. . . . The presentation that she had, in my opinion, was typical for a person who had worked as a hairdresser for many, many years.
Additionally, Dr. Halikman opined that the MRI of Petitioner‘s right shoulder from November of 2011 showed degeneration, and not an acute injury. Dr. Halikman testified that, if a rotator cuff tear had occurred at the time of the accident, he would have expected Petitioner “to have had treatment, injections, physical therapy and so forth and so on[,]” but that none of those things occurred. Dr. Halikman testified that a patient who experiences an acute tear to the rotator cuff would “have immediate acute pain and [] usually cannot lift the arm up. You can‘t miss it.” Dr. Halikman noted that no such findings were present at the time that Petitioner visited the emergency room at Mercy, and that, “[i]n fact, there‘s no mention at all of any complaints referable to the shoulder.”
According to Dr. Halikman, Petitioner‘s medical records showed that Petitioner did not initially complain of abdominal pain, and that both Dr. Koyen and Dr. Levin reported that Petitioner‘s abdomen was normal. Dr. Halikman opined that, when the Levin record was prepared on December 13, 2011, almost two months after the accident, “it would be reasonable to conclude that if a patient had a problem referable to those areas, it would have been evident by th[en], but it was not.”
After Respondent rested, Petitioner‘s counsel moved for judgment “on the issues of contributory negligence and negligence as a matter of law[.]” In response, Respondent‘s counsel stated that she knew of “no reason” why the circuit court should not grant the motion because, “[l]ike [she] said in the beginning, . . . it‘s a rear-ender.”
During closing argument, Petitioner‘s counsel argued that both Petitioner‘s recurrence of an epigastric hernia and the rotator cuff tear to her right shoulder resulted from the accident. Petitioner‘s counsel asked the jury to award Petitioner all of her past medical expenses totaling $9,926.05 and non-economic damages in an amount from $50,000 to $150,000.
Respondent‘s counsel argued that the evidence did not show that the accident caused Petitioner‘s hernia and right shoulder rotator cuff tear. Respondent‘s counsel mentioned the four medical records admitted into evidence, and argued that: (1) Petitioner did not complain of right shoulder pain or abdominal pain during her visit to the emergency room at Mercy on October 15, 2011, the day after the accident; (2) Petitioner did not complain of abdominal pain during her initial visit to Dr. Koyen on October 21, 2011, a week after the accident, although she mentioned right shoulder pain; (3) although Petitioner complained of right shoulder pain during her chiropractic visit on October 25, 2011, there was no mention of an abdomen complaint, and no diagnosis of a shoulder injury; and (4) Petitioner‘s right shoulder was not tender, and had full range of motion, and Petitioner‘s abdomen was soft, but not tender, during her visit to Dr. Levin on December 13, 2011. Respondent‘s counsel argued that the evidence did not support finding that the two surgeries Petitioner underwent—to repair the hernia and her right shoulder—were causally related to the accident, and that, accordingly, the evidence did not support an award for non-economic damages in the amount that Petitioner requested.
The circuit court provided a special verdict sheet to the jury, which deliberated on the issue of damages. Question 1 on the special verdict sheet asked “[w]hat measure of damages, if any, do you find the Plaintiff, Patricia Lamalfa, is entitled?” That question was followed by blank lines for “Past Medical Expenses,” “Non-Economic Damages (Pain, Suffering, Physical Impairment, etc.),” and for total damages. The jury returned a verdict in Petitioner‘s favor, and awarded Petitioner all of her past medical expenses totaling $9,926.05, as well as non-economic damages totaling $650.00, for a total award of $10,576.05. Consistent with the jury‘s award, on February 25, 2016, the circuit court entered judgment in Petitioner‘s favor against Respondent in the amount of $10,576.05.
Petitioner noted an appeal, contending that the circuit court erred in admitting the four medical records into evidence. On June 28, 2017, in a reported opinion, the Court of Special Appeals affirmed the circuit court‘s judgment and held that the circuit court did not abuse its discretion in admitting the medical records into evidence under
There is no significant difference between disclosure and admission of a writing under [Maryland] Rule 5-703 because to be able to use the writing to assess the credit, if any, to be accorded the opinion of the expert witness who relied upon it, the fact finder must be able to read the document, not just glance at it in passing. What is significant is that the writing is not to be used substantively (unless otherwise admissible for its substance). It is for that reason that the rule directs that, “upon request, the court shall instruct the jury to use the facts and data relied upon by the testifying expert only for the purpose of evaluating the validity and probative value of the expert‘s opinion or inference.” Md. Rule 5-703(b).
Here, the essence of [Petitioner]‘s complaint is that the jurors could have misused the contents of the medical reports because the reports were with them in the jury room during deliberations. Any problem with how the jurors might have used the reports was not a function of their being in the jury room but of [Petitioner]‘s failure to request a limiting instruction under [Maryland] Rule 5-703(b) either upon their admission, at the close of the evidence, or during defense counsel‘s closing argument. Had she done so, the court would have been required to instruct the jurors not to use the medical reports substantively—the very concern she now raises on appeal. Thus, her failure to request a limiting instruction is a waiver of this issue on appeal.
Lamalfa, 233 Md. App. at 155, 163 A.3d at 213 (emphasis in original) (brackets and citation omitted).
Thereafter, Petitioner filed in this Court a petition for a writ of certiorari, raising the following two issues:
- Were Defense Exhibits 2-5 inadmissible hearsay due to the failure of authentication as a condition precedent to the business records exception to the hearsay rule?
- Did the trial court err by admitting medical records pursuant to
Maryland Rule 5-703 without an appropriate foundation for establishing the truthfulness of the records?
On September 12, 2017, this Court granted the petition. See Lamalfa v. Hearn, 456 Md. 53, 170 A.3d 289 (2017).
DISCUSSION4
The Parties’ Contentions
Petitioner contends that the circuit court erred in admitting the four medical records into evidence pursuant to
Petitioner asserts that, assuming arguendo “disclosure” means “admission,” the circuit court was required to make findings as to whether the medical records fulfilled the four requirements of
Finally, Petitioner contends that admission of the medical records was not harmless error, as the medical records were inadmissible hearsay, and did not satisfy the requirements of the business records exception to the rule against hearsay. Petitioner argues that admission of the medical records allowed “the jury to place und[ue] weight on those select documents as compared to the verbal testimony and overall evidence.” Petitioner asserts that a limiting instruction would have been ineffective because the harm occurred once the medical records were admitted into evidence and permitted to be with the jury during deliberations, “instead of simply [being] disclosed[.]”
Respondent counters that, for purposes of
Respondent contends that the medical records were admissible under, and satisfied all of the requirements of,
Respondent contends that Petitioner has failed to show prejudice due to the admission of the medical records, or that admission of the medical records was manifestly wrong. Respondent argues that the record is devoid of any indication that the jury placed undue weight on the medical records, or placed any more weight on the medical records than on other evidence.
In a reply brief, Petitioner contends that
Standard of Review
In Brown, 409 Md. at 583-84, 976 A.2d at 310-11, this Court set forth the following applicable standard of review:
It is often said that a trial court‘s ruling on the admissibility of evidence is reviewed pursuant to the abuse of discretion standard. Such rulings, it is maintained, are left to the sound discretion of the trial court and will not be reversed on appeal absent a showing of abuse of that discretion. We have stated, however, that:
Application of the abuse of discretion standard depends on whether the trial [court]‘s ruling under review was based on a discretionary weighing of relevance in relation to other factors or on a pure conclusion of law. When the trial [court]‘s ruling involves a weighing, we apply the more deferential standard. On the other hand, when the trial [court]‘s ruling involves a legal question, we review the trial court‘s ruling de novo.
Additionally,
Maryland Rule 5-103 provides, in pertinent part:(a) Effect of erroneous ruling. Error may not be predicated upon a ruling that admits or excludes evidence unless the party is prejudiced by the ruling.
Thus, even if manifestly wrong, we will not disturb an evidentiary ruling by a trial court if the error was harmless. The party maintaining that error occurred has the burden of showing that the error complained of likely affected the verdict below. It is not the possibility, but the probability, of prejudice which is the object of the appellate inquiry. Courts are reluctant to set aside verdicts for errors in the admission or exclusion of evidence unless they cause substantial injustice.
(Cleaned up).5 Of course, the issue of what “disclosed” means as used in
Maryland Rule 5-703
(a) In general. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
(b) Disclosure to jury. If determined to be trustworthy, necessary to illuminate testimony, and unprivileged, facts or data reasonably relied upon by an expert pursuant to section (a) may, in the discretion of the court, be disclosed to the jury even if those facts and data are not admissible in evidence. Upon request, the court shall instruct the jury to use those facts and data only for the purpose of evaluating the validity and probative value of the expert‘s opinion or inference.
(c) Right to challenge expert. This Rule does not limit the right of an opposing party to cross-examine an expert witness or to test the basis of the expert‘s opinion or inference.
This Court has remarked that “it has been the practice in this jurisdiction for some years to permit an expert to express his or her opinion upon facts in the evidence which he or she has heard or read, upon the assumption that these facts are true.” Cooper v. State, 434 Md. 209, 230, 73 A.3d 1108, 1120 (2013) (cleaned up). ”
In Alban v. Fiels, 210 Md. App. 1, 21, 61 A.3d 867, 878-79 (2013), the Court of Special Appeals elaborated on the relationship between
Most certainly, an expert may give an opinion based on facts contained in reports, studies, or statements from third parties, if the underlying material is shown to be of the type reasonably relied upon by experts in the field. The focus of the language in Rule 5-703(a) that facts or data forming the basis for an expert‘s opinion may be relied on if of a type reasonably relied upon by experts in the particular field ordinarily relates to hearsay evidence. If such information received from others is inadmissible hearsay, it ordinarily comes in not as substantive evidence but only to explain the factual basis for the testifying expert‘s opinion. Regardless of why the facts or data within the meaning of Rule 5-703(a) are not admissible as substantive evidence, when they are permitted for Rule 5-703(a) purposes, they are not admitted as substantive evidence. Thus, upon request, the court shall instruct the jury to use those facts and data only for the purpose of evaluating the validity and probative value of the expert‘s opinion or inference. In other words, Rule 5-703(a) does not operate to admit as substantive evidence facts or data that are otherwise inadmissible. The facts or data relied upon are admissible, if at all, only to explain how the expert reached an opinion. Thus, unless inadmissible as a matter of law, inadmissible evidence, if it satisfies Rule 5-703, may be admitted, in the court‘s discretion, to explain the factual basis for an expert‘s opinion.
(Cleaned up).
In Brown, 409 Md. at 606, 976 A.2d at 324, this Court held that the trial court did not abuse its discretion in allowing the defendants to introduce into evidence an unredacted report under
During the defense‘s case, defense counsel read into evidence the transcript of the de bene esse deposition of the expert and defense counsel also offered into evidence the un-redacted ARC report. See id. at 576, 976 A.2d at 306. The plaintiff made an objection, which the trial court overruled. See id. at 576, 976 A.2d at 306. In closing argument, both parties referenced the un-redacted ARC report. See id. at 576-79, 976 A.2d at 306-08. In response to the question of whether there was chipping, peeling, or flaking paint at the subject property while the plaintiff lived there, the jury found in the negative. See id. at 579, 976 A.2d at 308. The trial court entered judgment in the defendants’ favor; the plaintiff moved for a new trial, arguing that the trial court had erred, in relevant part, by allowing the defendants to introduce the un-redacted ARC report; the trial court denied the motion; and, the plaintiff appealed. See id. at 579, 976 A.2d at 308. The Court of Special Appeals affirmed the trial court‘s judgment. See id. at 579-80, 976 A.2d at 308.
In this Court, the plaintiff argued that the trial court erred in allowing the defendants to offer into evidence the un-redacted ARC report, which, the plaintiff asserted, was irrelevant because it detailed the condition of the subject property five years after she had moved out; the plaintiff also maintained that she was prejudiced by the un-redacted report because it described the paint at the subject property as being intact for the most part. See id. at 600, 976 A.2d at 320-21. This Court observed that, with respect to the four elements that “must be satisfied for a document to be admissible under”
We concluded that the plaintiff‘s contention that the un-redacted ARC report was irrelevant was waived because the plaintiff failed to request a limiting instruction under
[The plaintiff] concedes that she never requested a limiting instruction under
Rule 5-703(b) . . . ; however, she seeks to excuse her failure by claiming that [the defendant]s did not raiseRule 5-703 as a basis for admitting the Un-Redacted ARC Report. Her excuse is not convincing. Even if [the defendant]s never cited expressly the rule, the joint stipulation provided by the parties reveals that [the defendant]s argued before the trial court that the un-redacted report was admissible because [the plaintiff]‘s experts relied on it. Additionally, as with any evidence that potentially could be misused, [the plaintiff] could have requested a limiting instruction underRule 5-105 as well. Moreover, [the plaintiff] did not object when, during closing argument, [defense] counsel cited the Un-Redacted ARC Report as evidence that the paint at the Subject Property was “intact” while [the plaintiff] resided there.
Id. at 604, 976 A.2d at 323 (cleaned up). This Court also determined that the plaintiff had “fail[ed] to establish that she was prejudiced by the [defendant]s’ use of the Un-Redacted ARC Report, even if the report was admitted erroneously as evidence relevant to whether peeling, chipping, or flaking paint existed at the Subject Property” when the plaintiff lived there. Id. at 605, 976 A.2d at 323. Accordingly, we held not only that the trial court did not abuse its discretion in permitting the un-redacted report to be introduced into evidence, but also that, even if it had been error, the plaintiff had failed to demonstrate “that she was prejudiced by its admission or its use at trial.” Id. at 606, 976 A.2d at 324.
On appeal, in pertinent part, the mother contended that the trial court had erred in admitting the Lish report into evidence and relying upon it in reaching its conclusions. See id. at 165, 47 A.3d at 1029. The Court of Special Appeals disagreed, and, after quoting
Therefore, the [trial] court was permitted to admit the Lish Report because Dr. Snyder considered it in reaching her opinions and conclusions, even though the Lish Report contained otherwise inadmissible hearsay. The [trial] court was permitted to consider the Lish Report for the purpose of evaluating the validity and probative value of Dr. Snyder‘s opinion.
Id. at 166, 47 A.3d at 1030. The Court of Special Appeals also rejected the mother‘s contention that the trial court had impermissibly considered the Lish report as substantive evidence, determining that the trial “court was permitted to consider the Lish Report to evaluate the validity of Dr. Snyder‘s opinion, and there [was] no indication that the [trial] court considered the Lish Report as substantive evidence.” Id. at 168-69, 47 A.3d at 1031. The Court of Special Appeals concluded that, “even if the [trial] court erroneously considered the Lish Report as substantive evidence, such error was harmless” because the mother “testified that she had been diagnosed with bipolar disorder, and her testimony regarding her bipolar diagnosis was properly admitted as substantive evidence.” Id. at 169, 47 A.3d at 1032. As such, the Court of Special Appeals determined that the mother had failed to demonstrate prejudice. See id. at 169, 47 A.3d at 1032.
Analysis
Here, we hold that the circuit court did not abuse its discretion or err in admitting the medical records—the Mercy record,
We begin by examining the plain language of
To be sure,
Notably,
Additionally, we observe that, in applying
We readily acknowledge that in none of these cases did this Court or the Court of Special Appeals expressly address the meaning of “disclosed,” or whether “disclosed” means “admitted” for purposes of
At oral argument, in response to a question as to whether this Court might look to
An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.
Advisory Committee Notes concerning the 2000 amendments to
Rule 703 has been amended to emphasize that when an expert reasonably relies on inadmissible information to form an opinion or inference, the underlying information is not admissible simply because the opinion or inference is admitted. . . .When information is reasonably relied upon by an expert and yet is admissible only for the purpose of assisting the jury in evaluating an expert‘s opinion, a trial court applying this Rule must consider the information‘s probative value in assisting the jury to weigh the expert‘s opinion on the one hand, and the risk of prejudice resulting from the jury‘s potential misuse of the information for substantive purposes on the other. The information may be disclosed to the jury, upon objection, only if the trial court finds that the probative value of the information in assisting the jury to evaluate the expert‘s opinion substantially outweighs its prejudicial effect. If the otherwise inadmissible information is admitted under this balancing test, the trial judge must give a limiting instruction upon request, informing the jury that the underlying information must not be used for substantive purposes. See
Rule 105 . In determining the appropriate course, the trial court should consider the probable effectiveness or lack of effectiveness of a limiting instruction under the particular circumstances.
In short, we conclude that disclosure means admission for purposes of
At oral argument, Petitioner‘s counsel readily admitted that he did not request that the circuit court give the limiting instruction provided for in
From our perspective, although we have addressed the significant issue of whether under
We are unpersuaded by Petitioner‘s contention that holding that disclosure means admission under
Here, with respect to those four elements, we determine that the record demonstrates that the medical records in this case satisfied the four elements for disclosure under
determinations with respect to the four elements of
The circuit court is presumed to know and properly apply the law. See Aventis Pasteur, Inc. v. Skevofilax, 396 Md. 405, 426, 914 A.2d 113, 125 (2007) (“It is a well-established principle that trial judges are presumed to know the law and apply it properly.” (Cleaned up)). In this case, just because the circuit court expressly mentioned only one of the four elements of
Under the distinctive circumstances of this case, it is clear, based on the record, that the medical records satisfied all four elements of
this case, two of the four elements are not in dispute. We agree that the medical records were unprivileged and reasonably relied upon by Dr. Halikman in forming his opinions, and we examine only the elements of trustworthiness and necessity to illuminate Dr. Halikman‘s testimony. The record demonstrates that the medical records were trustworthy—the medical records were prepared by the treating hospital and Petitioner‘s own treating physicians post-accident. And, Respondent indicates on brief that Petitioner‘s counsel provided the medical records to Respondent‘s counsel before trial. Also, the medical bills generated by the providers who authored the medical records were offered into evidence by Petitioner to support her claim for damages.8
Likewise, the record demonstrates that the medical records were necessary to illuminate Dr. Halikman‘s testimony. Petitioner filed the complaint in 2014, three years after the accident; during the interim,
injury to Petitioner‘s right shoulder did not result from the car accident and that any injury to the abdomen would have been evident within months after the accident, but was not—and, given the nature of Petitioner‘s complaints and the time period over which Petitioner sought medical treatment, the medical records were necessary to illuminate Dr. Halikman‘s testimony and to aid the jury in understanding the basis for Dr. Halikman‘s opinion. In short, all four elements for disclosure under
Because there was no error on the circuit court‘s part, and because, by failing to request a limiting instruction, Petitioner waived any issue as to the weight the jury may have accorded the medical records, we need not examine whether there was harmless error. Nonetheless, we conclude that, even if admission of the medical records was error, such error was harmless. Petitioner has failed to demonstrate prejudice from admission of the medical records, or to otherwise show that the jury placed undue weight on the medical records. The record is completely devoid of any indication that the jury placed undue weight on the medical records, or even that the jury placed more weight on the medical records than on the other evidence adduced at trial. Cf. Gillespie, 206 Md. App. at 169, 47 A.3d at 1031-32 (“[A]ssuming arguendo the [trial] court erred in admitting the Lish Report into evidence as substantive evidence, the error was harmless. . . . The burden is on the complaining party to show prejudice as well as error. The complaining party must demonstrate that the prejudice was likely or substantial.” (Cleaned up)).
In sum, we hold that the circuit court properly admitted the medical records under
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. PETITIONER TO PAY COSTS.