Araiza v. Roskowinski-Droneburg

RODOWSKY, Judge. In Osztreicher v. Juanteguy, 338 Md. 528 , 659 A.2d 1278 (1995), we granted certiorari to consider whether medical expert witnesses may be required to produce their tax and financial records to the opposing party for possible use in impeachment. Id. at 530 , 659 A.2d at 1279 . There we were unable to reach the issue because the party who opposed production had acquiesced in the adverse judgment sought to be appealed.

Id. In the instant matter we issued certiorari on our own motion, and prior to consideration of the case by the Court of Special Appeals, in order to address substantially the same question. Again, we do not reach that issue. Here, the trial court ruling complained of is grounded on a conventional exercise of discretion in quashing a trial subpoena.

The instant case is a medical malpractice action that originated in Health Claims Arbitration (H.C.A.). See Md.Code (1974, 1995 Repl.Vol., 1995 Cum.Supp.), §§ 3-2A-01 through 3-2A-09 of the Courts and Judicial Proceedings Article. Prior to the H.C.A. hearing the parties agreed to waive further proceedings in arbitration, and a complaint was filed in the Circuit Court for Frederick County. The plaintiff was Heather Jean Roskowinski-Droneburg (Plaintiff), and the defendants were Gerardo Araiza, M.D., Gerrit J. Schipper, M.D., and their professional corporation, Drs.

Araiza and Schipper, P.A. (Defendants). On Thursday, January 26, 1989, when Plaintiff was nineteen years old, Dr. Schipper performed an outpatient laparoscopy 1 on Plaintiff and confirmed that she suffered from endometriosis. 2 The 'substance of the malpractice claims was that Dr. ³¹⁷ Schipper negligently injured Plaintiffs bowel while performing the procedure and that, from Thursday, January 27, through Monday morning, January 30, while Dr. Araiza was responsible for follow-up service, he negligently failed to recognize and treat Plaintiffs signs of bowel perforation. Plaintiff developed peritonitis and loss of bowel function that required subsequent surgeries, including a colostomy, a colostomy reversal one year later, and skin grafts.

At trial Plaintiffs expert witness on the standard of care in performing the laparoscopy and concerning follow-up care was Marshall Klavan, M.D., of Pennsylvania. Dr. Klavan is the expert whose financial records were sought by Defendants. While Plaintiffs claim was still pending in H.C.A., Defendants noticed Dr. Klavan’s deposition for January 27, 1992, at his office in Pennsylvania. The notice of deposition included the following request: “Deponent will bring with him, in addition, all documents, records, notes, correspondence or other documents indicating for the last five (5) years, the amount of hours billed and compensation the Deponent has earned in his review, testimony, court or panel appearances in medical legal cases.

Deponent will also produce all records and other documents indicating for the past five (5) years the identity of the cases, the parties and the attorney by whom he was retained in all such medical legal cases.” The notice’s certificate of mailing to Plaintiffs counsel is dated January 14, 1992. From the standpoint of compelling production of the requested documents by Dr. Klavan at the deposition, it appears that Defendants did not utilize the available procedures. Maryland Rule 2-412(c) in relevant part provides: “A non-party deponent may be required to produce documents or other tangible things at the taking of the deposition by a subpoena. If a subpoena requiring the production of documents or other tangible things at the taking of the deposition is to be served on a party or nonparty deponent, the designation of the materials to be produced as set forth ³¹⁸ in the subpoena shall be attached to or included in the notice and the subpoena shall be served at least 30 days before the date of the deposition.” For a deposition of a non-party to be taken in Pennsylvania, 42 Pa.Cons.Stat.Ann. § 5326(a) (Purdon 1981, 1995 Supp.) meshes with Md.Rule 2-412(c).

The Pennsylvania statute provides that “[a] court of record of [Pennsylvania] may order a person who is domiciled or is found within [Pennsylvania] to give his testimony or statement or to produce documents or other things for use in a matter pending in a tribunal outside [Pennsylvania].” Plaintiff filed a motion in H.C.A. for a protective order against production of financial data by Dr. Klavan. No protective order was obtained, and the deposition proceeded as scheduled. 3 Portions of Dr. Klavan’s deposition testimony are in the record extract of this appeal in the form of exhibits to motions of the parties. Dr. Klavan testified that his annual income derived from forensics over the preceding ten years ranged between $60,000 and $70,000, but that in some years it approached $100,000. Forensics work represented from ten to twenty percent of his time.

In one year Dr. Klavan was paid $65,000 to $75,000 for forensics by a single Maryland ³¹⁹ attorney. Defendants also proffer that Dr. Klavan “recognized [as] his” a list that Defendants had obtained from their insurance carrier of 118 cases in which Dr. Klavan had testified. Dr. Klavan did not produce his tax returns at the deposition. He said that they are filed jointly with his wife and that he would not produce them even if he were ordered by a court to do so.

He testified that he did not possess any federal 1099 tax forms, and that he does not maintain a record of his bills for medical legal evaluations and testimony. Neither after receipt of the motion for protective order and prior to the deposition, nor following completion of the deposition of Dr. Klavan, did Defendants move to compel discovery. Under Md.Rule 2-432(b) “[a] discovering party ... may move for an order compelling discovery if ... (7) a nonparty deponent fails to produce tangible evidence without having filed written objection under Rule 2-510©.” Rule 2—432(b) was not directly applicable inasmuch as Plaintiff had filed a written objection.

Nor could Defendants invoke the procedures for compelling discovery, after written objection, as provided by Rule 2-510© because Defendants had not subpoenaed the requested documents. The interrelation between Rule 2-432(b)(7) and Rule 2-510© is the subpoena. “A subpoena is ... required to compel a nonparty ... to ... produce designated documents or other tangible things at a deposition.” Rule 2-510(a). Trial of this action was scheduled to commence on October 24, 1994. In that month Defendants renewed their quest for material for possible use in impeaching Dr. Klavan.

Defendants obtained from the Clerk of the Circuit Court for Frederick County two subpoenas duces tecum for Dr. Klavan, returnable at trial. One copy, issued October 11, 1994, was directed to be served on Plaintiffs counsel in Maryland. That counsel refused service, and the process server left a copy of the subpoena, and of its attached schedule of documents to be produced, with the attorney’s receptionist. Defendants obtained a second subpoena on October 18, 1994 that was ³²⁰ presented on October 19 by Pennsylvania counsel for Defendants to the Court of Common Pleas of Delaware County, Pennsylvania, the venue of Dr. Klavan’s medical office.

By an order dated October 20 that was personally served on Dr. Klavan on Friday, October 21, the Pennsylvania court ordered that the Maryland subpoena be served. It appears that the Pennsylvania court was acting pursuant to 42 Pa.Cons.Stat. Ann. § 5324.' 4 Defendants have not briefed and argued the efficacy of this service in Pennsylvania. The schedule attached to, and incorporated by reference into, the Maryland subpoena included the following among the documents to be produced: “Doctor Klavan will bring with him, in addition, all documents, records, notes, correspondence or other documents indicating for the last five (5) years, the amount of hours billed and compensation he has earned in his review, testimony, deposition, court or panel appearances in medical legal cases and copies of his Federal 1099 tax forms for the past five (5) years. Doctor Klavan will also produce a list of the medical legal cases in which he was retained for the past five (5) years indicating the identity of the cases, the parties and the attorney by whom he was retained.

Doctor Klavan will produce a list of all of the laparoscopy cases which he has performed in the past five (5) years.” On Monday morning, October 24, the parties respectively filed in open court motions in limine, together with supporting memoranda. Defendants at that time predicated their motion on the validity of the service in Pennsylvania of the Maryland trial subpoena. Plaintiff predicated her motion on “principles similar to a Motion to Quash.” Maryland Rule 2-510(e) provides in part that “[o]n motion of a person served with a subpoena to attend a court proceeding ... the court ³²¹ may enter an order that justice requires to protect the person from annoyance, embarrassment, oppression, or undue burden or expense. ... ” After hearing argument on behalf of the parties and after considering the parties’ memoranda during a recess, the trial court granted Plaintiffs motion and denied Defendants’ motion. Following a jury trial, the verdict was in favor of Dr. Schipper and against Dr. Araiza and the professional corporation (Appellants).

Appellants principally argue that the financial data should have been ordered to be produced. I In ruling on the motion in limine, the circuit court assumed for purposes of the ruling that service of the Maryland trial subpoena in Pennsylvania was effective, but the court considered it “to be extensively burdensome” to require the witness, on at most three days notice, to produce a list of laparoscopy cases that he did not ordinarily keep and had not made, covering a period of five years. The court also concluded that production of the 1099s was unduly burdensome. The court noted that the problem of Dr. Klavan’s refusal to produce financial information had been known for at least two and one-half years, but that, on only three days notice, Defendants had sought to resolve the problem by having the court either order Dr. Klavan to produce the 1099s or prohibit Dr. Klavan from testifying.

The latter, the court found, would be “extremely prejudicial and burdensome to the [Pjlaintiff.” On the other hand, for purposes of cross-examination, Defendants had the financial information described by Dr. Klavan in his deposition testimony. With respect to Defendants’ request for a list of cases in which Dr. Klavan had testified in the preceding five years, the court pointed out that Defendants had a list of 118 such cases which had been identified on deposition by Dr. Klavan. Thus, the ground of decision by the circuit court did not address whether, or the extent to which, a court may compel the production of financial information by non-treating, ³²² medical expert witnesses who testify with some regularity for plaintiffs or for defendants. The decision of the circuit court in this case is an appropriate exercise, applicable to the facts of this case, of the judicial discretion recognized in Md.Rule 2-510(e).

See 2 J. Poe, Pleading and Practice § 239, at 178 (1925 Tiffany ed.), where the author cites, at note