Alban v. Fiels

JAMES R. EYLER (Retired, Specially Assigned), J. This case arises out of an automobile accident that occurred on June 11, 2009, in Baltimore County. There was evidence that the at-fault driver left the scene immediately after the accident, returned a few minutes later while the injured driver and passenger were still at the scene, laughing as he drove by, and then left the scene again. The issues are whether, in a personal injury claim based on negligent driving, the Circuit Court for Baltimore County erred in excluding testimony (1) by witnesses to the accident that they told the injured driver, while she was still in her truck, that appellee had fled the scene, returned and drove by the scene, laughing as he did so and (2) by the injured driver’s treating psychologist that the injured driver told him about that conduct and that it formed the basis for his opinion as to a portion of the injured driver’s emotional injury. We shall affirm and explain.

Factual and Procedural Background Introduction Ruth A. Alban and her husband John J. Alban, Sr., a passenger in her vehicle, appellants, were injured after their truck collided with another truck, operated by Michael A. Fiels, appellee. This lawsuit ensued, liability for negligence was uncontested, and the case was tried on the issue of compensatory damages. A jury awarded non-economic damages in the amount of $5,000 to Ms. Alban, “zero” damages to Mr. Alban, and noneconomic damages in the amount of $5,000 to both the Albans for their joint claim for loss of consortium. The trial court entered judgment for $10,000 plus costs.

Unable to convince the trial court to award them a new trial, the Albans brought this appeal. They complain that the trial court erred in precluding evidence of Mr. Fiels’s conduct after the accident, arguing it was relevant to at least a portion of Ms. Alban’s “psychic and emotional injuries”. ⁵ The traffic accident happened when Mr. Fiels failed to stay in his lane on Hyde Park Road and collided with a pickup truck driven by Ms. Alban. Police reported that the “Front left of [Mr. Fiels’s truck] struck the front left of [the Alban’s truck].” According to Ms. Alban, she was unable to get out of the truck after the collision and remained there until firemen arrived, who assisted her. Mr. Alban exited the pickup truck through the right passenger door.

Mr. Fiels left the scene of the accident immediately after the collision. He drove into an area without an outlet, however. He turned around, drove by the accident scene without stopping, and continued on his way. A witness followed him, and Mr. Fiels was soon arrested at a nearby shopping mall.

Witnesses at the scene would have testified, if permitted, that Mr. Fiels was laughing when he drove by the accident scene while Ms. Alban was still in her truck. The Albans, who were in their 70s, were taken to the University of Maryland shock trauma center where they were evaluated and released. They complained of neck, back, and shoulder pain, and Ms. Alban complained of an injury to her knees. The Albans consulted an internist, Dr. Mark Abraham (“Marcelle”) Reischer.

They received physical therapy and pain medication. The primary claim for damages, however, made clear at the time of trial, was Ms. Alban’s claim for emotional distress, manifested primarily by crying, anxiety, and sleeplessness. Preliminary Rulings On October 30, 2009, the Albans filed suit in circuit court seeking compensatory damages for injuries due to Mr. Fiels’s negligence and “intentional acts of outrage.” The complaint contained four counts. Count one asserted a claim for damages for physical and emotional injuries to Mr. Alban, and count two asserted a claim for damages for physical and emotional injuries to Ms. Alban, both based on negligent driving.

Count three asserted a claim for “Intentional Acts of Outrage.” In that count, the Albans alleged that Mr. Fiels intentionally left the scene and, after reaching a dead end, ⁶ reversed direction, drove past the scene of the accident, and fled. Count four asserted a joint claim for loss of consortium. In each of counts one, two, and four, the Albans sought $500,000 in damages. In count three, they sought $1,000,000.00 in damages for “intentional misconduct.” On March 16, 2011, Mr. Fiels filed a motion to dismiss or for partial summary judgment, asserting that “Count III of Plaintiffs’ Complaint fails to state a recognized cause of action for Intentional Acts of Outrage against [him].” At the beginning of trial, on May 2, 2011, the court addressed Mr. Fiels’s motion.

Counsel for the Albans argued that count three was intended to assert the tort of intentional infliction of emotional distress, as it is known in Maryland law. This cause of action, he asserted, was based on Mr. Fiels’s outrageous conduct. The trial court ruled that the count did not allege all of the elements of that cause of action and granted the motion. The Albans do not challenge that ruling on appeal.

After that ruling, Mr. Fiels’s counsel moved to “exclude any testimony regarding [his] failure or alleged failure to immediately stop at the accident scene.” Mr. Fiels admitted liability as to negligence and argued that such testimony was no longer relevant because of his admission of liability and dismissal of count three. His counsel argued in the alternative that, assuming such evidence were relevant, its probative value would be outweighed by its prejudicial impact. Following extensive argument, the trial court excluded evidence relating to Mr. Fiels’s post-accident actions, explaining her decision, in pertinent part, as follows: THE COURT: All right. I mean the difficulty though is under the case law, a lot of what you’re talking about are simply not appropriate elements of damage or relevant for consideration by the jury.

The damage,— I’ve heard the argument and, with all due respect, at some point I rule on it and you and I are going to disagree ⁷ on it. I understand from a human standpoint what you’re talking about and, you know, I’m certain if I thought somebody caused me injury, smirked, drove off or could have cared less, I’d be outraged. But the question isn’t outrage, it’s a question of what were the physical injuries that were caused, the extent and duration, the psychological injury that she sustained and to that extent, you’ve got to let me finish. THE COURT: To the extent that your doctor got in testimony[ 1 ] that part of her PTSD is going to be related to being trapped in the car and worrying whether she would live or die, that’s clearly relevant and clearly admissible.

To the extent she also stated that part of the thing that contributed to that was that he didn’t even bother to see if she was okay, that’s coming in and I think that that’s marginally admissible but it’s in the middle of an answer and counsel’s not jumping up and down and screaming I should try and parse that out somehow. But his behavior afterwards, the fact that he’s at a Food Lion shopping and the fact that other people will say he smirked in some way, those things don’t relate to her damages and her injury. All they do is invite outrage and, you know, punitive response from a jury as opposed to an appropriate dispassionate consideration of what’s the nature and extent of her injury. So for those reasons, I, I am granting the Motion in Limine as to the after behavior of the defendant.

I don’t think it’s relevant or admissible. The Albans’ Proffer Following the trial court’s ruling, the Albans’ counsel proffered the testimony that his clients would elicit if permitted to do so. Because it is the exclusion of this evidence that forms the basis of the Albans’ arguments on appeal, we set forth their proffer in its entirety: ⁸ [THE ALBANS’ COUNSEL]: If Your Honor please, I’d like to proffer evidence that has been excluded and we’d start back actually with the deposition of [Mr. Fiels] who stated, the question was asked of him, and I would have called him, we’re, we’re now back in June 11th of '09, “When you struck the vehicle occupied by the Albans, did it occur to you that someone might be injured in that vehicle? “Answer: No. “Did you have any concerns over whether anyone was injured in that vehicle? “Answer: At the time, I was worried about myself.” Again on his deposition, I had asked him, “So I understand that you were having a panic attack because you hit somebody, but you weren’t concerned over whether anyone was injured? “Answer: I can’t tell you what my thoughts were at the time but I was concerned about myself, yes. “Question: But nobody else. Is that correct? “No, not at that time.” The witnesses, if they had been allowed to testify, Mrs. Stella Cox would testify that she heard the collision, she didn’t see the collision, she heard the horn, she heard the collision, she immediately ran out and she saw the truck, a large white unmarked truck driving southbound on Hyde Park Road.

Knowing that there was no way out in that direction, she called to her nephew, who was working in the yard, to follow that truck. The nephew, Antoine Stamper, who would testify, had, had he, that he followed the truck and then followed the truck back past the scene again, the truck slowed and then sped up to go and drove approximately a mile away into a Food Lion shopping center, parking his vehicle and then getting out to go. Ms. Cox back [sic] would continue with her testimony that while she was standing behind the pickup truck, she observed the defendant’s truck proceeding towards her, slowing down, he looked over at her and laughed and sped up and sped away. ⁹ Mr. Raymond Doetseh, D-o-e-t-s-c-h, would testify that likewise he had, he had heard the collision, he ran out to see what was going on, and he saw the truck going past him into Hyde Park. He waited, he knew that again that vehicle would have to come back.

Minutes later, he sees the truck coming back with damage to its left side or the driver’s side of that vehicle with the mirror ripped off and what have you, and the same situation, the driver looked at him, laughed and then sped up and, and left the scene. The, and that would basically be it. It is not apparent from this proffer whether these witnesses told Ms. Alban while she was still in her truck that Mr. Fiels had laughed as he fled the scene. During the course of the argument, however, the Albans’ counsel asserted that the witnesses would so testify, and we treat that assertion as part of the proffer.

The Albans’ Relevant Testimony at Trial The Albans both testified. Ms. Alban recounted that, after the collision, her husband managed to exit the truck. She could not get out, but asked her husband to “see where the [driver of the other vehicle] is[.]” The driver — Mr. Fiels— was not at the scene. Ms. Alban chronicled the treatment for her physical injuries.

With respect to her emotional well-being, she recounted: [THE ALBANS’ COUNSEL]: Okay. Now during that time, did you have any other complaints other than those physical ailments that you talked about? A. My nerves. I couldn’t sleep.

I kept thinking of this is it, you know. He’s going to kill both of us at one time. And I still think about it. Q. What do you think about it?

A. I just get scared and, and I take anxiety medicine because I just cry, sit and cry. I don’t know why. I guess ‘cause I’m reliving it. I don’t know.

When I wake up in the ¹⁰ morning I get tears in my eyes and I don’t know why. I guess I dreamt. Q. Okay. Now what was it that concerns you about the thing that caused you, if you know, to cry or be that nervous?

A. I just keep thinking and reliving and, and I, I guess the main thing is I keep thinking he didn’t care. You know, if somebody cares, they would have tried to help me or not run away, you know. I thought he didn’t care and I care for people and I worry about people. Well just in my mind to think somebody don’t care, like I’m just trash sitting there or something.

He came by again and, and still seen me in the truck and still didn’t stop. Q. Okay. When does it, when do you have these thoughts or they’re day and night or when? A. I have a lot of anxiety attacks.

Ms. Alban was referred to Dr. Harvey Gewanter, an experienced clinical psychologist. Ms. Alban testified that she went to see Dr. Gewanter for a consultation but did not return because she did not want to take the time to see him, even though she felt that she still needed his assistance. She finally returned to see him, 16 months later, at her husband’s urging. During his testimony, Mr. Alban underscored the emotional trauma his wife had suffered — she would often be crying — and said that this had been “going on for the last two years[.]” Expert Testimony On April 21, 2011, the Albans took the video deposition of Dr. Gewanter.

This deposition was played for the jury. Dr. Gewanter first saw Ms. Alban on August 20, 2009, when she presented with complaints related to the automobile accident. Ms. Alban told him the experience was “frightening,” and described the accident as “a hit-and-run situation, where, apparently, a man had struck her car and rather — and then he fled the scene[.]” Dr. Gewanter testified that Ms. Alban was ¹¹ “really having a lot of difficulty sleeping.” He also related that she talked about reduced motivation, depression, sadness, and being “very upset about the situation.” Dr. Gewanter diagnosed Ms. Alban with Post Traumatic Stress Disorder, but added that it was resolving somewhat. He explained that Ms. Alban “was exposed to a very traumatic event.” He opined that Ms. Alban’s condition was caused by the fact that she was “locked in her car by the force of the impact, and she felt trapped in there, as she described it to me.

She was frightened. She was trapped, and she felt her life was in danger.” With respect to Mr. Fiels’s post-accident conduct, Dr. Gewanter continued: And I think also, she shared with me that the gentleman who hit her car left and did not stay and attend to — to see if she was okay. And that was a very, very upsetting piece of the whole story, as well. As she felt — she could not understand why the man would not stop and see about her well-being.

And this was a big piece of her being upset and agitated and feeling like ... this was a very irresponsible thing for a person to do when you were in an accident. At the time of the initial consultation, Dr. Gewanter thought that Ms. Alban would probably benefit from additional counseling, but recalled that she did not pursue it. He opined that Ms. Alban “has always had this anxiety since the time of her accident.” He initially thought that it was resolving but then testified: “I think that anxiety was probably always there and I think this recent [unrelated] injury [to her arm] just made her worse, exacerbated the whole condition that was already there.” On cross-examination, when asked to comment on his report that Ms. Alban’s symptoms were improving or resolving nine weeks after the accident, Dr. Gewanter agreed that she was “getting a little better.” Notwithstanding, he initially thought Ms. Alban was suffering from Post Traumatic Stress Disorder. He explained that she would recall dreams and waking ¹² thoughts about being trapped in the car and “this man fleeing the scene.” On further cross-examination, when asked whether Ms. Alban exhibited all of the elements of PTSD, Dr. Gewanter acknowledged that Ms. Alban “did not have all the components of a Post Traumatic Stress Disorder by definition, by textbook definition, but she had features clinically that would suggest she had a Post Traumatic Stress Disorder.” When asked to explain how a chronic condition such as PTSD would show improvement “at the ... nine or ten week mark,” and whether this was unusual for a diagnosis of PTSD, Dr. Gewanter amended his earlier diagnosis and opined that Ms. Alban “probably has generalized anxiety disorder.” Commenting on Ms. Alban’s statement that she did not return for treatment with him because she “never felt the need to return for any further sessions,” Dr. Gewanter suggested that she felt she could manage with medication.

He acknowledged that her original generalized anxiety may have resolved in the 16 months between her first and second visits with him. On redirect examination, Dr. Gewanter opined that it was “very likely” that Ms. Alban’s “generalized anxiety disorder manifested itself as a result of the traumatic incident of the collision of the two vehicles.” He also explained that “[g]eneralized anxiety disorder is anxiety about more than one situation.” The Albans presented the testimony of Dr. Reischer, who was accepted as an expert in a number of specialties, including internal medicine, physical medicine and rehabilitation, and pain medicine. He is not a psychiatrist, and did not complete a residency in psychiatry. Dr. Reischer saw both Mr. and Ms. Alban on June 24, 2009.

With respect to Ms. Alban, based on the patient’s history, Dr. Reischer testified that “[s]he has had significant post traumatic anxiety, has been started on Lorazepam with some benefit but still breaks into tears periodically.” When asked to explain, Dr. Reischer said that “since this accident, she had developed significant psychological abnormalities, psychologi ¹³ cal problems.” He prescribed medication for Ms. Alban’s post traumatic anxiety. Dr. Reischer saw Ms. Alban again on July 15, 2009. He testified that “the post traumatic anxiety was improving as well, although she still had episodes when it was bothering her significantly.” After he saw Ms. Alban one month later on August 19, he referred her for a psychological evaluation because she complained of “increasing difficulty with flashbacks related to the post traumatic anxiety[.]” Ms. Alban then saw Dr. Gewanter, as discussed above. When he saw Ms. Alban on August 81, 2009, Dr. Reischer observed that she had seen Dr. Gewanter and “was doing significantly better and was improving at this point.” Dr. Reischer last saw Ms. Alban on April 11, 2011, and recalled that, at that time, her predominant symptoms were related to her post traumatic stress and anxiety.

He opined that she was permanently disabled, with the post traumatic anxiety a predominant aspect. We will recite additional facts as appropriate. Discussion Contentions on Appeal The Albans contend the trial court erred in excluding evidence of Mr. Fiels’s post-accident conduct because it was relevant to the jury’s understanding of the cause and extent of Ms. Alban’s emotional and psychological injuries, and its probative value was not outweighed by the danger of undue prejudice. They maintain that the court’s ruling was prejudicial because the jury did not receive evidence that was part of the factual basis for the opinions of their experts, Drs.

Gewanter and Reischer, especially the foundations of the former’s “opinion on Ms. Alban’s psychic and emotional injuries.” As a result, the jury was without the testimony that would provide an accurate context for Ms. Alban’s continuing psychological and emotional injuries, part of the Albans’ damages claim ¹⁴ under Ms. Alban’s negligent driving count and their joint loss of consortium count. 2 Mr. Fiels contends the evidence in question was irrelevant, and in any event, the court did not abuse its discretion because any probative value the evidence may have had was outweighed by the danger of undue prejudice. Standard of Review The decision whether to admit evidence ordinarily is entrusted to the discretion of the trial court. See J.L. Matthews, Inc. v. Md.-Nat’l Capital Park & Planning Comm’n, 368 Md. 71, 91-92 , 792 A.2d 288 (2002); Butler v. S & S Partnership, 207 Md.App. 60, 110 , 51 A.3d 708 (2012) (citations omitted). By the same token, regardless of a trial court’s prerogative in this regard, certain evidentiary rulings by the trial court are subject to plenary review.

Relevant evidence is that which has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Md. Rule 5-401. A trial court “does not have discretion to admit irrelevant evidence.” Ruffin Hotel Corporation of Maryland, Inc. v. Gasper, 418 Md. 594, 620 , 17 A.3d 676 (2011); Md. Rule 5-402. Maryland cases have thus recognized: While the “clearly erroneous” standard of review is applicable to the trial judge’s factual finding that an item of evidence does or does not have “probative value,” the “de novo” standard of review is applicable to the trial judge’s conclusion of law that the evidence at issue is or is not “of consequence to the determination of the action.” Gasper, 418 Md. at 620 , 17 A.3d 676 (citations omitted). The determination that evidence is relevant does not end the inquiry.

A trial court’s ruling, as to whether the admission of even relevant evidence would be unduly prejudicial, is reviewed for an abuse of discretion. See Schneider v. Little, ¹⁵ 206 Md.App. 414, 434 , 49 A.3d 333 , cert. granted on other grounds, 429 Md. 303 , 55 A.3d 906 (2012). See also, Crane v. Dunn, 382 Md. 83, 100 , 854 A.2d 1180 (2004). Analysis The trial court ruled that the disputed evidence relating to Mr. Fiels’s post-accident conduct was not “of consequence to the determination of the action.” The parties, apparently unclear as to whether the