Under the Maryland Rule Governing Basis of Expert Testimony, "Disclosure to the Jury" is Ruled Equivalent to "Admission into Evidence"

Lamalfa v. Hearn, 2018 Md. LEXIS 50, 2018 WL 679687 (Md. Feb. 2, 2018)

In early February, the Maryland Court of Appeals held that materials relied upon by an expert witness that are “disclosed to a jury” are also considered “admitted into evidence” provided that they are: 1) trustworthy; 2) unprivileged; 3) reasonably relied upon by the expert in forming his/her opinions; and 4) necessary to illuminate the expert’s testimony.

The Court considered this issue in the context of a motor vehicle accident arising out of Baltimore City. In October of 2011, the Petitioner was rear-ended while on her way to a family wedding. The Petitioner chose not to seek medical treatment at the scene of the accident, but over the course of the next several weeks, developed upper and lower back pain, hip pain, arm and shoulder pain, abdominal pain, and multiple forms of emotional distress. She underwent surgeries for a hernia and a rotator cuff tear.

In September of 2014, the Petitioner filed suit against the Respondent seeking compensation for her medical injuries. At trial, the Respondent introduced Dr. Louis Halikman as a defense expert witness in orthopedic surgery. Relying on four sets of post-accident medical records, Dr. Halikman testified that the Petitioner’s surgeries were not causally related to the October 2011 accident. Over the Petitioner’s objections, the court admitted the medical records that Dr. Halikman had relied upon, into evidence. At the conclusion of trial, Petitioner requested the jury for an award between $50,000.00 - $150,000.00. The jury returned a verdict for $9,926.05 in medical bills and $650.00 for pain and suffering, for a total award of $10,576.05.

The Petitioner appealed her award to the Court of Special Appeals, which affirmed the circuit court’s judgment. The Petitioner then appealed to the Court of Appeals, arguing that the circuit court erroneously admitted the records that Dr. Halikman relied upon, without the appropriate authentication or foundation establishing the truthfulness of the records.

Under Maryland law (Md. Rule 5-703(b)), courts may disclose to the jury, materials that expert witnesses rely upon, if the materials are: 1) trustworthy; 2) unprivileged; 3) reasonably relied upon by the expert in forming his/her opinions; and 4) necessary to illuminate the expert’s testimony.

In this case, the Court evaluated whether the term “disclosed” in the Rule, also means “admitted into evidence,” and concluded that it does, if the evidence satisfies the aforementioned four factors. The Court reasoned that the Rule does not distinguish between “disclosure” and “admission of evidence” because its language does not limit the definition of “disclosure.” Had the legislature meant to limit the term, it would have specified so in the Rule. Further, the Court adopted the Court of Special Appeals’ rationale, stating that for a jury to use the materials and thereby evaluate the expert’s credibility, the jury must also be able to read those materials. The Court noted that nothing in the Rule prohibits giving the materials to the jury just as if the materials had been admitted into evidence. The Court concluded by holding that even if the circuit court erroneously admitted the medical records, that error was harmless because nothing had indicated that the jury had placed any undue weight on the records.

This decision sets a notable precedent because it allows for any facts, data, and materials (relied upon by an expert witness) that are properly disclosed to a jury (under Md. Rule 5-703(b)) to also be automatically admitted into evidence at trial.

- Associate Rima Kikani