*1 forum, wrong Nuneses in the over their spent by time restored, objections, remedy cannot be is a new repeated City against Leung for Baltimore trial the Circuit Court and Commock. THE COURT OF SPECIAL APPEALS
JUDGMENT OF BE PAID BY THE PETITION- AFFIRMED. COSTS TO ERS.
No. 1998. Appeals Maryland. Court of May 1999.
entered,
Levin,
principles
Corp.
stated
Keene
under the
v.
Fader,
(1993),
Doering
Argued before and RAKER, RODOWSKY, CHASANOW, WILNER and CATHELL, JJ.
CATHELL, Judge. of Baltimore Appellant Mayor City appeals Council City from a in the Circuit Court for Baltimore verdict entered Darla claims the trial appellee Appellant favor of J. Theiss. finding right object court erred in waived its appellant respect portions trial with to the admission of the video- appellee’s expert medical witness. The taped that, upon Special Ap- trial court ruled based the Court Goodman, in Davis v. peals’ opinion Md.App. (1997), appellant
A.2d 798 waived its made videotaped deposition specify during because failed to objections. for its Appellant ap- pealed Special Appeals. the Court This Court issued writ of certiorari on its own motion before the intermediate appellate arguments court heard the matter to address the by this important appeal. issue raised
I. Facts Appellee Darla J. Theiss fell broke her ankle while walking to her car from a Brooklyn hardware store area Appellee Baltimore. filed a civil action the Circuit Court for Baltimore from City seeking damages Mayor City Baltimore, appellant, injuries Council she sustained as a result of the fall. A jury appellee, awarding found favor of $128,000in damages. her M.D., Myerson,
Dr. Mark S. was one of physicians who appellee deposed videotape treated and was on as an expert *4 for appellee. During medical witness appel- counsel Dr. at about questioned Myerson great length lee’s his injuries, opinion appellee’s possible as to treatments available her, recommend, which treatment he would and some estimates for the cost of the treatments. Dr. eliciting When Meyerson’s testimony deposition, appellee’s at counsel often, always, questions but not failed to qualify seeking opinion by asking opinion doctor’s whether his was “within a attorney typi Appellant’s probability.”1 reasonable medical lacked the “reasonable questions to the cally objected by stating the language, usually simply probability” medical grounds. After one “objection” stating any and without word “objecting that he was explained counsel appellant’s question, instances, In a few other question.” form of the to the objections for unrelated gave grounds counsel appellant’s record, attorney it appears appellee’s From the appeal. this objec for for attorney only ground once his asked appellant’s tion, explanation. a brief attorney gave appellant’s for which objections for the ground not related to the This also was issue here. trial, objec- its presented beginning appellant
At for stated that its judge. Appellant to the trial tions form proper were not objections was that expert opinion for the “counsel the doctor [asked] because with the expert opinion proper it as an framing without upon Special based the Court terminology.” judge, The Goodman, Md.App. in Davis v. holding Appeals’ (1997), objec- waived the appellant found that had A.2d 798 one, is not which except overruled all tions and played appeal. videotaped deposition in this The at issue and, above, appellee. in favor of as noted found jury to the for review: following question Appellant presents objec overruling [appellant’s Did the trial court err clearly which would deposition opinion questions, tions to trial, for the reason improper have been asked not set forth his reasons [appellant] counsel for had objections during deposition? affirm. that the trial court did not err and shall
We hold
II. Discussion rely mainly in this case on the parties testimony Special and the Court of Rules governing require- opinion unnecessary address in this the nature of 1. It is language questions designed to elicit medical qualifying ments for testimony. *5 239 Goodman, 378, in Davis v. Appeals’ opinion 117 403- Md.App. (1997). 04, 798, 700 Although A.2d 810 application Maryland clearly Rules leads to the today, result we reach see State, infra, the common law of this in place long before the rules, adoption supports also our affirm decision to that, trial court holding and our when objecting during a answers, questions, or any irregu other error or larity may at objecting be cured party must state the ground objection for the or the objection is waived.
A. Common Law early As as this recognized that the to deposition testimony must be stated taking along with the so “that opportunity to change the form question] might [of the be given.” Hardcastle, (1885) Brown v. 63 Md. (citing (1882)). Kerby v. Kerby, Brown,, 57 Md. In appellees objected at trial to certain testimony filed the case because question posed pretrial proceeding was leading. The trial court objection. overruled the We affirmed because appellees failed to state the ground for their when the was asked pretrial proceeding, stating: “All the exceptions to testimony because of the leading character of the interrogatories[2] overruled, are be cause, at the time the interrogatory propounded, ground of objection noted, was not stated and that opportunity to change the form thereof might given.” be Id. Kerby, the case cited and interpreted by Court, the Brown we advised objections questions the form of posed before a com missioner must “be made at the time propounded, order to Brown, 2. The interrogatories, perceive term as we its use in referred generally questions. style of the time was to use the word interrogatory general in its sense. 3, Kerby partition was a case for real estate in which apparently propounded were before a commissioner. Kerby, 57 form.” correction into admissible a chance for
give held: at 361.4 We leading, alleged are interrogatories far as the So too late. objection comes exceptionable, the therefore form; always required being only as Such *6 a give order to time in propounded, at the to be made The into admissible chance correction form. for commissioner. noted before the have been should added). therefore, omitted) follows, (citations It (emphasis Id. for opportunity an in order to afford depositions, that stated sufficiently must be correction, problem alleged objection is made. the time the Tatham, later, 116 Md. v. years Doggett twenty-five
Over
(1911),
the issue
we revisited
147, 151,
A.
378
The
deposition.
a
propounded during
objections
to
in that case:
the issue
first described
to
regard
with
question
raises
exception
The fourth
The
adjudication in this State.
is no exact
which there
Virginia
being
was
taken
A. Williams
evidence of Charles
35 of the Code
of section 16 of article
provisions
under the
represented at the
plaintiff
was
Laws.
of Public General
not, and on
evidence,
was
but the defendant
of this
taking
object-
15th
was
question
reading
though no such
leading,
that it was
ground
to
upon
ed
at the time
made or noted
to have been
objection appears
of the defendant
taken. On behalf
testimony was
when the
hearing
court]
entitled at the
[in
that he was
urged
it is
character,
leading
ground
on the
of its
object
question
to the
support
proposition: Baltimore
Kerby
cases in
of this
4.
cited four
Jones,
(1874);
Id. Disagreeing with argument defendant’s and noting the purpose requiring objecting counsel to state the objection, the Court held: long has recognized State, [I]t been the rule this a question where supposed objectionable upon ground, this the objection, and the reason it must be ], noted at the time in order to [of afford party propounding the question opportunity to reframe it in such that it would not be open objection. to this form The rule is most salutary and wise if any regard one is to evidence, be had for the rules of the mere expense convenience or party litigant can not be permitted outweigh the enforcement of the general rule. *7 added). (emphasis Id. Brown, We have not Doggett, overruled Thus, or Kerby. this Court has required since at least 1885 that objecting counsel to questions asked a during curable, which are provide grounds must for the deposition. Our understanding of the common law is further supported by later cases that requirement address the at that time for stating grounds for objections at trial. Prior to the (and enactment of Maryland Rule 2-517 its predecessors),5 which provides grounds that for objection given need not be at trial unless requested, appears it that in to preserve order objection trial, grounds made had to be stated even absent request. In Iron Clad Manufacturing Co. v. 360, 386, 112 Stanfield, (1910), 76 A. a bare objection was made to question asked a witness. Although 2-517(a), 5. Rule previously which promulgated had been as and, that, prior Rule 522 Appeals Court of provides part grounds objection that "[t]he for the need not be stated unless the court, initiative, request party, at the of a or on its own so directs.” appears not clear from the Court’s it opinion, it is completely asked trial. We question had been stated: grounds The not show that the record does appeal] it when it was made but is now [on were stated objectionable leading contended that it because it was was the very question and also because it asked the witness that jury were to decide. too for the first It is late now raise time That leading. that was should have been question that raised below when was asked so examining proper counsel could have put inquiry Practice, 274; if he to do form' desired so. Poe’s sec. Brown Hardcastle, 495; v. Kerby Kerby, v. 63 Md. 57 Md. [at] [at] 361.
Id. Manufacturing, Kerby,
In Iron Clad we cited Brown and cases, objec- holding both volunteered, tions must be even at trial. We also cited Brown Kerby Baltimore & Ohio Railroad Co. v. approvingly (1908). Black, 642, 653, A. ex rel. 107 Md. State Black, objec- we specifically questions posed referred tions thereto made The ... exceptions at trial. [6] We said: all urged in this solely ground objected that-the to were upon leading from questions, but does the record this appear Court, specific in the trial no ground made objec- objection being there made. think the We exception Apparently, general specificity. 6. was made at trial without case, “exception,” term as used 1908 Black was the in the formal ruling attempting preserve method then used for an adverse *8 ruling purposes appeal. aggrieved party After an adverse the asked exception ruling court an At clerk to note to the on the record. the trial, exceptions all of conclusion of the taken would constitute a Exceptions, appeal. the basis See Bill which would form for Mont- McNeece, 194, 671, 202-03, gomery County v. 311 Md. 533 A.2d 675 (1987). speaking The Court in Black in context of a was mere general resulting general exception, holding and that unless not, then, specificity, exceptions with even made did sufficient preserve appeal. issue
243 tion to a as time it question leading should made at the is it Mr. put, and before is answered. Poe so the rule states Practice, 261, Poe’s sec. “The reason if such says, is that had been at the time was question made obviated, put, it probably could and would have been and it fair spring objections would not be therefore to such after- wards. is especially testimony This the rule cases where is taken a commission.” To sustain this he under text cites Cooke, Jones, 447; 174; Smith 31 v. Md. Jones v. 36 Md. Hardcastle, Kerby, 57 Kerby v. Md. 361 and Brown v. [at] 63 Md. 495. Smith v. was a where Cooke case [at] commission, depositions Kerby were taken under a v. cases, Brown v. Kerby equity Hardcastle were where v. rule is established. Jones Jones was a case Orphans’ testimony Court where the was before lay taken not Judges. testimony We have found a case where the prims, arisen, taken nisi orally which this has but we no reason perceive why rule should not be the cases, same in plainly such and Mr. Poe lends authority his to this view in the citation above. exceptions These there- fore are not on that ground. tenable By no longer necessary it was to proffer voluntarily trial the grounds upon which were We said based. Castranda, in Baltimore Transit Co. v. State ex rel. 194 Md. 421, 438, (1950), citing A.2d Court of Appeals Rule 17, which promulgated present had been in 1945: “Under our rules relating appeals, ordinarily necessary to state an objection, requested unless trial court.”
We addressed the old exceptions practice in Montgomery
McNeece,
v.
County
(1987),
The a later review was question appellate for preserve order law. on the common See McCormick firmly ingrained (E. ed.1972). The Cleary § Evidence 118-19 2d and its exception, for the rule of contemporaneous reason Bill of requirement with the additional a interaction by and signed, were set forth Exceptions prepared Procedure, D. Basic Civil 254-55 Professor Milton Green ed.1979): (2d Exceptions bring
The of a Bill of was to before purpose appellate the court review matters which otherwise common law to the would not on the record due appear the reporters there no court to record fact that were trial. was testimony proceedings and the This Af- of days recording before the shorthand and devices. II if a litigant believed ter Statute Westminster it a ruling, court erred in a he could make matter had “saving exception.” example, his For if counsel by record of witness objected had asked a and and counsel thought court had overruled erroneous, “If I ruling say, he the court please, was could The exception your ruling.” save an honor’s desire to then the trial and call the judge obliged stop was who, his on quill pen, scrivener with would make record completed, this parchment.... When document signed the course of by judge. During would be exceptions might trial be “saved.” At numerous they together of the trial would be bound and conclusion judge Exceptions Bill of certified the trial as the case, they be attached to become a part and would and on with methods of appeal. Today, the record modern antiquated preserving court this method of reporting, “excep- obsolete court record has become rules make omitted). (footnote unnecessary, tions” (alteration 202-03, original). at 675 Id. at A.2d went on: Court court stenographers required
With the advent of proceedings, verbatim accounts trial the need contem- poraneous exceptions By adoption ceased to exist. “unnecessary 1945 of Appeals formalitfy]” noting exceptions rulings outmoded State, orders of the court was ended. Elmer v. (1965).
6-9,
rated in into Md. Rule 1984 2- part became of Rule 517. (alteration 204,
Id. at 533 A.2d at original). 676 in The Court then discussed the rule’s on in ap- effect banc circuit court peals: appellate accomplished
The modernization of procedures by Appeals rules, Court of 17 Rule and successor while fully purposes effective for of ordinary appeals, had no on effect procedure in be followed to in appeals banc courts. 1984, effect, Prior Rule 510 in specifically remained requiring the of by exceptions. reservation issues means of result, As a an procedure outmoded remained to unneces- sarily in complicate appeals. banc Aggravating the situa- tion attorneys was the fact that coming the bar after 1945 were unfamiliar with practice noting of excep- formal rulings tions to or practice orders—a that had been second- predecessors. nature to their Because the requirement exception that an be noted on the day point record or decided, question in banc appeals essentially were in in unavailable those judge cases which a filed an order with the parties by Moreover, clerk and notified the mail. there was uncertainty concerning the within time which an
246 signed by to be exception writing
oral had reduced 458, v. 41 397 judge. Wolfe, Md.App. the trial See Faber (1979), an must be holding exception oral A.2d 270 Compare a time.” writing within “reasonable reduced Thomas v. Ford, supra, Md. [346] at 348 [(1885)]. taking problems cognizance of these Aware this by Washabaugh [v. Court Washa penned footnote baugh], supra, [393] n. 6, A.2d [(1979)], Court the Rules Committee this recommended procedure of Rule 510 so that the substantial revision would to. the taking appeal parallel, an banc extent procedure taking appeal an possible, 2-551, July provid effective Special Appeals. ed, in pertinent part: permitted a by by review court banc
"When Constitution, judgment party may have Marylánd by any point determination of reviewed a. filing a notice for in banc review within by court banc filing appeal. Rule 1012 for prescribed time *11 by making in banc review are reserved for Issues in in 2-517 2- the manner set forth Rules and 520. (footnotes omitted). 204-05, 533 at
Id. at A.2d 676 indicate, to Rules infra, despite suggestions As we shall issues, they preservation deposi- that as relate Committee tions, stringent, suggestions, those unlike made less relating appeals, to in banc circuit court have not been issues recommended; therefore, the common law rules accepted or survived. have
B. of Maryland Discovery Rules in rule-making capacity, The Court of its Appeals, discovery Maryland of adopted part uniform rules as Laws, 719; Chap. 1941. See 1941 Md. see also Md. Rules Rules, Maryland to 2-434. including Rules 2-401 discovery, not entire field of relating preempt rules do Rather, law not ex discovery procedure. principles common Maryland ap- with should be inconsistent Rules pressly
247 v. plied conjunction with the rules. See Gardner Board of (1990) Comm’rs, 63, 80, 208, 320 Md. A.2d 216 County 576 (“The revision the Maryland Rules which became effective 1, 1984, July abrogate did all of the case pleading law and which theretofore at practice equity, existed law and and the new do not purport Rules to state within their text the universe of Maryland pleading practice and law.”). Nothing contained in the is Maryland Rules inconsis- tent with the common law rule stated the cases we have Finally, discovery discussed. rules are compre- broad and in scope liberally hensive and should be See E.I. construed. Forma-Pack, Inc., du de 396, Pont Nemours & Co. v. (1998); 718 A.2d Hayden Porter Co. v. Bul- 452, 460, (1998). linger, Md. 713 A.2d rules, Turning discovery to the relevant Rule 2-415(g) provides:
All during made a deposition shall be recorded An testimony. with to the of taking manner answers, to the form of or the oath affirmation, or conduct parties, other of error or irregularity might kind be obviated or removed objected to at the time its occurrence is waived timely objection unless a is made deposi- tion. An objection to of a competency witness to the competency, relevancy, or materiality testimony is not waived failure to make before or during a unless one might have if presented been obviated or removed that time. [Em- phasis added.]
Because the doctor’s deposition testimony the case before us trial, as videotaped testimony used Rule 2- 416(g), relating videotaped audiotaped depositions, *12 2-^fl9(a)(4), relating Rule the all to use of depositions, also Rule apply. 2-416(g) provides:
The objections officer shall keep log of all made during deposition the and shall reference them the time shown on the clock on camera videotape or the or audiotape subject to to shall be taken objected Evidence
indicator. or intending videotape A to offer objection. party the notify shall the court and in evidence audiotape deposition of the writing parts of that intent and all parties for within sufficient time to allow deposition to be offered or upon before the trial objections and acted to be made deposition or of the shall be part to all hearing. Objections on rulings within sufficient time to allow for writing made hearing. or editing tape for of the before the trial them and designations objections permit further and may The court In justice excluding objectionable testimo- may require. as counsel, may objections or the court ny comments or or be videotape audiotape copy that an edited order person tape suppress trial playing or that the made event, no howev- objectionable portions tape. er, audiotape or be affected original videotape shall editing process. 2-419(a)(4) videotape treating “A of a Rule states: be used any expert may or of witness consulting physician or testify is available to though even the witness any purpose for that it was to be taken deposition specified if the notice discovery relating videotaped The rules for use at trial.” rules; rath depositions supplant general discovery do not er, those rules.7 they supplement alter, 2—419(a)(4) emphasize 2-416 do not unless 7. We that Rules and 2-415, regulate generally expressly provided, 2-411 to which Rules primary videotape taking depositions. purpose of the The provisions depositions upon as for audiotape provisions, as well 2-417, depositions by telephone, questions, Md. written Rule 2-418, expand taking Rule is to the methods available for depositions. videotape audiotape provide rules for additional The depositions; they general taking supplant do not rules methods of Therefore, Maryland 2-416(g) underlying law. or the common ("A intending videotape audiotape deposition party offer notify writing parties and all of that intent evidence shall court ... time to allow for to made and acted within sufficient added)), postde- hearing." (emphasis requires a upon trial before hearing deposition objections. position, pretrial court rule on replace rulings objections. designed in-court on such This is audiotape law videotape and rules not a substitute the common requirement for an be made at the that the *13 and, deposition Rule 2-415 relates to as generally procedure above, (g) we stated subsection mandates the manner in which
and under what be situations should made. The Rule, times, which has revised from been several was derived portions former Rules 422.8 Notwith standing changes these several the deposition procedure to years, rule over the Rule and its 2-415(g) predecessor rules relating objections have remained the substantially same. For example, provided: former Rule c. 2.
2. Waiver Unless Objection. Seasonable An or error at irregularity occurring the oral examination manner taking in the form of the answers, affirmation, or or in the oath of parties conduct and an error of any might kind which obviated, removed, or if promptly presented, cured unless waived seasonable thereto is made at taking deposition.
The deposition objection substance this rule has remained same, despite several concerns raised in past. Appeals Standing Court of on Committee Rules of Practice (“Rules “Committee”), however, Procedure Committee” declined to responsive recommend changes those con- cerns. For example, minutes from various Rules Committee meetings relating to Rule 2-415(g) proposals indicate that modifying the Rule have been considered. The minutes of 16, 1987, January meeting of the Rules Committee indicate that the Committee was in part concerned with whether the regular deposition applied videotaped depositions rules object whether the failure to at the taking of videotaped light constituted waiver in videotape the special being itself subsequent proceedings. or risk waived for Accordingly, procedure obtaining rulings court on made here, depositions, such generally only as those at issue apply objec- preserved properly tions videotaped deposition by or audiotaped stating ground upon which the is based. revised, significantly 8. The updated, Rules were and renum- bered in 1984. objections until the permit delaying seemed
provisions hearing. change A consid- proposed postdeposition, pretrial whether appeared Committee concern ered objections to be made “curable” required pretrial hearing: later at the itself rather than regarding policy question of a Agenda Item 3.'Consideration *14 2-419(d). and 2-416(g) Rules Richards, Discovery Chairman of the Subcommittee Ms. the consider- issue for Committee’s presented policy the a Committee that she had received ation. She informed the the Com- Henry Greenberg, Esquire asking from I. letter a of attending videotaped deposition parties mittee whether trial, objections at make all an intended for use must expert, objections if they as were trial the at the the explained Richards letter would be waived. Ms. not made objections, certain described situation where time raised for the first before during were 2- objections on Rule relying trial. The court allowed 419(d) that: provides part which 2-412(e), (i), 2-416(g), and
Subject 2-415(g) to Rules 2-417(c), hearing be made at a objection may part all or of receiving trial to evidence evi- require reason that would exclusion present testifying. if were then dence the witness on the Appeals Standing Committee Minutes (Jan. Procedure, 16,1987). Rules Practice and Rule there videotape 2-416(g), rule quoting After Rule objections should be made under was discussion of when Mr. The minutes reflect that Committee member 2—416(g), objec- “that curable Sykes except Melvin J. commented tions, objections within a only required to make party can rule on the time before trial so that court sufficient also allow objections. may He further noted that court (emphasis has Id. at objections begun.” after the trial added). distinguished
Mr. Albert D. Brault curable and noncurable objections, suggesting by implication, Sykes, as Mr. had objections during deposition. to be curable were made The minutes following: reflect the videotape
Mr. Brault remarked that of out-of- depositions experts precautionary state are used as a measure because subject to delays. trials often He added further that flexibility in important, the rule is and that the rule should require objections during non-curable to made be deposition. course added).
Id. at 35 Rules (emphasis Committee decided no necessary. change 2-416(g) Rule Additionally, on with comments file the Rules Committee reflect that relating 2-415(g) Rule the Committee consid- Biddison, ered certain comments A. presented James Jr. Mr. 2-415(g) Biddison suggested changed provide that there would not be a waiver of an even no were made He deposition. proffered that practice requiring depositions in order to *15 preserve depositions them for trial “to get bogged caused go down and off on a tangent up by and are broken countless objections. It like a situation Court where you have a Judge to rule on such objections.” Comments to the Court of Appeals Standing Committee on the Rules Practice and of (Comment Maryland Procedure on 2-bl5(g) 58, Rule No. Jr.) (on Biddison, Committee). A. James file with the Rules The Rules adopt Committee declined to pro- Mr. Biddison’s posal or recommend it to the Court. history
The Rule 2-415 of reveals other instances which the Rule was reviewed and approved without substantive As change. noted a 1973 meeting, Rules Committee example, the Rules Committee considered several suggestions by the Baltimore Gas and Electric Company, including recommendation “that Rule 413 b be amended an effort to discourage attorneys objecting from taking of depositions.” Minutes Appeals Standing of (June Procedure, Committee on the Rules Practice and 3-4 1973). that such action would The Committee “reasoned voted to [recom- not have desired effect and therefore the matter was no It was also felt change. mend] subject.” place 412'c by proper Rule which is covered similar language c. 2. contained to Rule 412 rule, See also Minutes the Court supra. see present Practice and on the Rules Appeals Standing Committee 1980) Procedure, the Rules Committee’s (noting 18 (Sept. to 2^404(j)(3)(B), predecessor pres- approval of former Rule style only attempt improve with 2-415(g), ent Rule clearly and minutes Although these language). comments determinative, as to they guidance do lend some are not its the Rules attention and brought Committee’s issues changes such ultimate to decline recommend decision It is far back as procedure rule. clear that as weakening 1973, the declined to recommend Rules Committee at deposi- the waiver of concerning the provisions tions. mentioned, as we exam Appeals,
The Court
have
Special
deposi
relating
videotaped
and the rules
2-415(g)
ined
Goodman,
396-404,
A.2d
Md.App.
v.
tions Davis
case
806-10,
facts
similar to the
strikingly
a case with
of a
us.9
case
the videotaped
before
That
involved
objected to
plaintiffs’ counsel
During
doctor.
counsel, usually
questions
opposing
asked
many
At
“objection,
to strike.”
stating
“objection” or
move
only
trial,
objec
for his
counsel stated
plaintiffs’
in proper
were not
form because
tions was that the
his
but was not asked
express
opinion,
was asked
doctor
degree of
opinions were based on a “reasonable
whether his
judge
A.2d
Id. at
at 807.
probability.”
medical
*16
Goodman,
Md.App. at
n.
ty might timely objection that be cured a had been made deposition, objecting party must state the before the conclusion of the so that deposition, the opposing party will have a chance to or cure obviate the error or irregularity.
Id. 403-04,
often to questions for invalid no reasons Moreover, counsel, all. reason at they although so, required to do object often (e.g., or answers hearsay) answers containing where the error or irregularity could not possibly even if problem corrected were brought attention those attendance at deposition. realities, Given these well known the interpre- tation of Rule 2-415(g) advanced appellants would allow counsel at to interpose scores of non- *17 a valid interpose frivolous and then
specific and immediately in a that could be question to a defect objections might well cause barrage cured. The frivolous in to the defect or answer question overlook opponent immediately interpretation curable. Such an that was run afoul of the rule and would purpose would not fulfill the interpreted that the Rules be requirement the to fairness administration. secure (brackets 400-01, original). Id. at 808-09 A.2d recog- holding, Special its the Court of reaching Appeals requiring primary goals 2-415(g) that one of the nized for his or her specify ground to the objecting party the irregularities objection to curable errors and described the to the provide questioner opportunity rule is to the taking is place. the while the obviate mistake Indeed, 2-415(g), the versions of Rule previous all the to be made for error “that language requiring an time of its might objected be obviated or removed to the is the language constant. in this Implicit occurrence” remains the making objections: problem correct purpose specific objection may be Although ground at that time. the the made, is parties when the often obvious both objection. may multiple grounds not or be might there form, instance, such as question may objectionable For judice, in the case sub quickly by questioner curable time, the also At the same rephrasing question. immediately not curable and therefore a may be irrelevant and by court. The upon be ruled later the trial properly matter relevancy but questioning may recognize problem counsel objecting simply as to form. Had the problem party objection, of the of the ground advised the counsel questioning form of stating, “Objection; improper questioning such as counsel have cured expert,” questioning might medical thus time question, saving defect valuable rephrasing to or trial. prior resources important, objector unless an states with Even more his than mim- objection, the nature of rather specificity some ie., icking rule, of the general language “objection determine, question,” impossible form the it is based itself, transcript objec- upon whether the when proper tion made frivolous. In other merely words, is, addressing issue, when waiver whether the objection would have curable if been it had been properly objected stated, judge normally the trial *18 limited to ground objection the for the made at the point deposition place time when the took and cannot new consider given judge’s reason some months later at trial. The trial whether, waiver determination at depends upon the time the objection was, been, made, or objectionable could have the matter was curable or noncurable. If matter the was curable nonquestioning object, and the party either to or failed failed objection, specify to the basis the matter is If the waived. curable, the matter to objected ground with properly the the specified, objection and cured the Therefore, preserved. the issue of waiver is at frozen the time the In order for trial deposition. judge to deter- ground mine whether the for might was “one which been have obviated or removed presented” during the deposition, a sufficient for objection necessarily foundation an must have proffered been order for the trial to court determine later whether the irregularity or could have been at the of the deposition. cured time specific Unless for grounds proffered the deposition, at Rule cannot as operate it was to at permit intended: curing of objectionable irreg- other ularities. we to Were law change common and hold that grounds not be at need stated the deposition, objecting would party be afforded months or years before the trial commences, in which he or she would have an opportunity to up think for legitimate grounds when, at made, it time was such grounds were not obvious or intended. The requirement objecting attorney an state the for an a deposition also promotes policy considerations the rules relating behind to videotaped testimony videotaped expert witness testimo- this amended the Rules
ny. governing discovery specifically taking for rules provide recording As depositions videotape audiotape devices. discussed, governs the technicalities for 2-416(g) supra, 2-419(a)(4) and Rule objections during videotaped or any of a videotaped deposition physician that the provides trial, regard- may expert any purpose be used witness its availability. Regarding recommenda- less of that witness’ rules, the adopting videotaped deposition with respect tions promote minutes reflect that strove Rules Committee litigation keep an effort to videotaped depositions use of minimum economy and for the and convenience costs to courts, example, For one expert witnesses. parties, opinion expressed individual work to probably would permitting videotape depositions wealthy making experts advantage parties by of less them, that an be expert generally would more available in his office or at some other non- willing testify more Furthermore, fee. less of the setting a modest court testimony. his necessary acquire time would expert’s *19 on the Appeals Standing the Court Committee Minutes of of (Mar. 8,1980). Procedure, In a Practice and 5-6 & Rules of in the Com- committee note to former Rule as-reflected Minutes, stated: mittee’s the Rules Committee economy that and The Committee believes considerations of expert arranging medical and testimo- convenience for coupled ability videotape convey with the to most ny, of of in-person and available impressions the from information deposi- use videotape the unrestricted testimony, justify from, “live” such wit- testimony tions as a substitute for nesses. discovery rules
Id. at It is clear the drafters the 12-13. videotaped depositions to desired broad use video- relating in an effort to the cost and time taped depositions decrease deposition practices. associated with traditional Holding objecting questions, to certain an- that counsel swers, irregularities depositions need and otherwise curable objections for specify not the his or her would limit purpose videotaped deposition rules and goals the discovery general unnecessary delays rules and lead to the hand, appellant’s costs. For case at example, the counsel, the objected by appellee’s counsel to asked ground objection except failed to the for his on one specify but bare occasion. This same was entered several more times at each time appellee’s counsel failed certainty” to include the of medical lan- degree “reasonable subsequent questions. only to his guage Appellant argued form; is, trial judge that these related to stated for the first appellant postdeposition, pre- time appellee’s hearing neglected language trial counsel to use asking opinion doctor’s degree within reasonable objected The error certainty. appellant medical one of form appellee’s question because counsel did not ask the using form, language, appellant argues which is re- quired expert opinion. elicit This is the type contemplated under Rule Had 2—415(g). appellant specified objection clearly for his enough appellee so that error, question could have might obviated have been expert corrected while remained available. “[SJandbag- ging” counsel opposing by attempting to defer the issue of proper form the point process, trial, immediately prior when necessary correction is new, but witness is properly available answer a framed question, contrary are tactics to the purposes which the videotape deposition rules and 2-415(g) were designed to address.
III. Conclusion We emphasize that the rule we espouse today is not new; the common law has recognized this procedure since at *20 discovery codify 1855. policies procedures least rules have Therefore, that been in nearly years. effect we affirm the trial court preserve and hold that order to a deposition objection of taking deposition, “the manner a form answers, affirmation, the or questions to the oath or or any or to other kind error parties, conduct of the
the if objected or removed might that be obviated irregularity occurrence,” 2-415(g), party Rule the time its the for the ground must state the or making objection attorney asking that the objection enough specificity with or problem address the and cure questions reasonably can answer, irregularity. or objectionable question, obviate Otherwise, any that waives party, question, as to objecting at trial. and answer objection the admission BALTI- THE COURT FOR OF CIRCUIT JUDGMENT AFFIRMED; AP- TO BE PAID BY MORE CITY COSTS PELLANT. BELL, J.,
RODOWSEY, joined opinion by concurs and files C.J.
RODOWSEY, Judge, concurring. I respectfully disagree with separately I write because has my view analysis opinion. the Court’s text, beyond its Maryland 2-415(g) Rule greatly enlarged construction, way in which beyond its proper beyond in which litigators administer the rule and the circuit courts Further, it. its construction primarily the Court bases apply on policy on reasons are debatable that encroach adversary system. 2-415(g) reads: be dining All a shall
“Objections. made An to the manner of testimony. recorded with answers, to to the form of or taking affirmation, or to parties, oath to the conduct of or obviat- irregularity might other kind of error or is objected at the time of its occurrence ed removed during timely objection deposi- is made unless waived to the An to the a witness or competency tion. materiality competency, relevancy, testimony make it before or waived failure to have is one that might unless the if presented or removed at that time.” been obviated *21 of expressly require ground does the rule Nowhere objections be stated for those that would waived objection objection if is not made. expedite deposi- of the rule is to purpose
The self-evident of object ground is no need to at all “unless tions. There might is one that have been obviated removed if at is that presented general that time.” rule rather, deposition; they not even at a are de- required are ferred, deposition testimony to be made if and when the is in court. To that the requirement offered evidence add deposition of must be stated at the prolongs deposition. construction,
Further, ordinary under the rules of the mean- of a should be consistent with the rules as ing given part rule 2—415(b) “[w]hen a whole. Rule tells us that is examination, upon taken oral examination and cross-examina- in the trial of deponent may proceed permitted tion of the as court, In open open an action court.” when an to the of grounds made admission evidence “[t]he court, objection need not unless at the request be stated 2-517(a). initiative, or on its own so Rule party directs.” Thus, if one beyond wording 2^415(g) looks the literal context, larger to the one is directed to a conclusion that is contrary to that the Court espoused by today. Maryland 1986 the Board of State Bar Governors discovery guidelines, guidelines
Association approved approved by Judges. were the Conference of Circuit Court (1999), Maryland Annotated Code Md. Rules at 171. The Maryland Discovery Litigation Guidelines were revised of the Maryland February Section State Bar Association Although Maryland Discovery 1990. Id. “are Guidelines officially part Maryland of the Rules have not been Court, adopted approved by” arranged this we nevertheless reproduced part to have them as of the introduction to Chap- Maryland ter 400 Title Rules because the “Guide- lines, revised, may significant interpreting as be of value applying” Chapter Objections 400. Id. “Guideline 9: objecting to the form “[attorneys states
Depositions” encouraged, requested, hortatory language objection.” This reason for the state the that the statement of mandatory to a is antithetical 2-415(g). into Rule today reads Rules, they as relate on the Commentators any necessity practitioners not alerted have depositions, *22 that are to be objections required those grounds stating P.V. to avoid waiver. See a order deposition made at Schuett, Commentary, Rules Maryland L.M. Niemeyer & (2d ed.1992); Grimm, Taking and 2-415, P.W. at 281-82 Rule Lawyers Maryland A Handbook Depositions, Defending for (1991). 5.4, § at 46-47 that references position takes the majority opinion (1911), 376, Tatham, 147, 151, A. 378 116 81 v.
Doggett Hardcastle, 484, (1885), v. Kerby 495 63 Md. Brown v. 345, (1882), stating to 57 Md. 361 Kerby, 2- Rule to read into for Any have not been overruled. 415(g), those cases because eroded, however, by in my opinion, such requirement, 1, 1945. Md.Code Court on November rules this adopted 10(c)(1) B. of the rules (1939,1947 Rule Cum.Supp.), Appendix of Practice and of the General Rules depositions relating of the last sentence the substance presented Procedure 8(a) of the then while Rule 2-415(g), Rule present as deponents proceed for oral examination provided rules 2034. At the same time at the trial. Id. permitted In Appeals was added. 17 of the Rules of the Court Rule for it appeal provided the record preserving connection with “[ujnless court, necessary it (cid:127)that, by the requested in circum- objections except for to evidence grounds state the necessary heretofore have been stances in which would objection.” Id. at 1995. grounds for special call attention moved to Rule 522 d In this Rule was provision Procedure, which Maryland Rules of newly adopted “[ujnless court, necessary it is not requested by provided, Md.Code to evidence.” to state the (1957) 18,1956; 1,1957). The January July effective (adopted from change Rule 522 following explains Note Committee Rule 17: former words, following following eliminated the
“The Committee ‘... in circum- except in subsection d 1: the word ‘evidence’ necessary have been which it would heretofore stances objection.’ This was the special grounds call attention to of Appeals of the next to last sentence part last Rule 17.” into incorporated newly adopted Rule 522 d was 2-517(a). 2-517(a) (1984 RepLVol.). Md. Rule complication majority’s opinion
An additional
arises
repeated
City’s objections
going
from its
references to the
as
questions,
to the form of the
as
the issue concerned the
Assuming
of Rule
that an
2-415(g).
second sentence
form of
for some reason other than
question may
to the
lie
nature,
to elicit a
question’s leading
seeks
opinion,
stating
medical
without
the standard of reasonable
(or
not, in
certainty
probability)
my opinion,
medical
does
a defect of form.
present
*23
Goodman,
source of the
is Davis v.
117
problem
(1997).
378,
Davis,
In
Md.App. concluded, on of Special Appeals summarily opinion based an Appeals, type the Missouri Court of that the above-described of went the form of the “An question. questions put to an were not framed expert certainty’
in terms of
medical
has
held to be
‘reasonable
been
to form. See Turnbo
v.
St.
by Capra
City of
Charles,
851,
932
856
117
(Mo.App.1996).” Md.App.
S.W.2d
4,
any
397 n.
are not to render their with the talismanic certainty” words “reasonable medical or “reasonable medical in order for the to be admissible. probability” opinion Howev- er, establish, is used to expert opinion testimony where
262 such evidence must damages, of causation or
example, proof speculation not be based on sufficiently probable 296 Md. Corp., v. Sales conjecture. Pierce Johns-Manville (1983); 666, 1020, v. Baltimore 656, Kujawa 464 A.2d Co., 203-04, 167 96, (1961); 195, Ager A.2d 224 Md. Transit 420-21, 469, Co., 132 A.2d 213 Md. v. Baltimore Transit (1957). 472-73 medical with “reasonable expert opinion
An who states effect, is, in probability” or “reasonable medical certainty” opinion of which the is held. degree conviction with stating certainty, reflects an “This standard of ‘reasonable’ medical that the likelihood of one objectively well founded conviction other; expert not is greater any is than does mean cause cause, of or that the cause is discerna- ‘personally certain’ States, v. United 532 A.2d certainty.” ble to a Clifford omitted). (D.C.1987) (citation 640 n. 10 An is not rendered with reasonable expert opinion necessarily is not inadmis- certainty probability reasonable when, in opinion may be admissible example, sible. For evidence, the combination amounts conjunction with additional of Bros. proof to sufficient causation. Charlton probable Garrettson, 85, 94, 51 A.2d Co. v. Transp. (1947) (“The not requires proof probable, merely possi- law hoc, ble, facts, including Reasoning post causal relations. logical fallacy, sequitur. a non recognized hoc is a propter relation, events, causal plus proof possible But sequence relation, causal may proof probable amount cause.”). equally probable other absence evidence Thus, expert that asks a medical witness for an question for the to be stated with asking opinion without opinion, certainty” proba- or “reasonable medical “reasonable medical in its form and insufficient bility,” question improper Rather, asks for expert opinion. to elicit the such *24 that stated expert opinion might requisite be with admissible, standing or to be alone. Ad- certainty probability court, trial missibility by is a determination that is made 5-104(a). by the facts of this Consequently, using Md. Rule the Court has moved grounds, a statement of require case and, effect, is recognized leading question beyond easily in the last sentence exception general to the rule applying That raises a far- 2-415(g) to a matter substance. of Rule reaching policy question. majority opinion policy
The reasons advanced debatable, engraft I that we should but do not believe fairly 2-415(g) having on Rule without requirement this new it, any giving consider and without expressly Rules Committee such requirement. to the Bar to comment on opportunity is the problems deposition practice persistent One by interject- who sets out to obstruct the attorney objections. The ultimate resort control ing repeated application is an attorney, unfortunately, obstructionist enough sanctions is difficult when Obtaining sanctions. attempt justify can the conduct attorney obstructionist vagueness requirement to the complained pointing in order to avoid waiver where “the that be made that have been obviated might of the is one ground if at that time.” The downside of the presented or removed gives that the obstructionist requirement Court’s new ammunition, against more attorney protection even more sanctions, path by requiring be stated. today deposition practice which the Court steers also down I attorney. attorneys, conscientious can foresee impacts the State, Lusch v. von 279 Md. fearful that the rule (1977), be to the statement of applied 368 A.2d 472-73 will advancing every ground at the conceivable grounds, as one that might might be considered deposition. obviated or removed at the I Finally, majority opinion am concerned that the weakens re- system. my interpretation the adversarial Under of the quirements 2-415(g), objecting attorney only of Rule need object, examining attorney moving and the has the choice of backfilling any perceived deficiency. on to correct Given standard, the elusiveness of the “unless the might is one that have been obviated removed time,” impose objecting at that we should not on presented *25 examining counsel on educating counsel the added burden testimony Objecting in that has been elicited. deficiencies in the duty object has a to then curable deficiencies counsel examination, duty counsel has a to conduct the examining manner, deposi- in when the proper particularly examination trial, testimony testimony is to be used lieu live tion objections, to rule on the duty and the court has court. parties when the are before the of which stated in which counsel chooses to objecting In those instances cooperative, ground for the order to be state the so counsel has concluded undoubtedly counsel does because objecting is no detriment to the client. But counsel that there preparing opposing forced to assist counsel should case, counsel concludes that adversary’s objecting where interests legitimate require the client’s the Rule. proceed compliance literal with majority’s between the the instant matter difference my analysis does not alter the result. The analysis all deponent was cured when the testified that problem were held to a reasonable opinions expressed he had degree probability. of medical joins BELL has authorized me to state that he Judge
Chief
herein.
expressed
the views
COUNCIL OF UNIT OWNERS OF PLACE CONDOMINIUM. 86, Sept. Term, No. 1998. Appeals Maryland. Court of
May 1999.