Davis v. Petito

EYLER, DEBORAH S., J. Joanna Davis, the appellant, and Michael Petito, the appel-lee, are the divorced parents of Sophia Petito, a minor child. In a custody modification proceeding, the Circuit Court for Wicomico County ruled that Davis did not prove her allegation that Petito had sexually abused Sophia. Ultimately, the court concluded that, although there was no material change in ⁴⁹² circumstances in the form of sexual abuse by Petito, Davis’s unproven allegations of sexual abuse against Petito had brought about a material change in circumstances, namely that Petito’s relationship with Sophia had been interrupted for over a year and Sophia had been led to believe that Petito was someone to fear. On that basis, the court modified the prior visitation schedule with the objective of fostering reunification between Sophia and Petito.

In addition, the court ordered Davis to pay $80,773.54 (approximately half) of Petito’s attorneys’ fees. On appeal, Davis poses three questions for review, which we have rephrased: I. Did the circuit court err in precluding her rebuttal expert witness from testifying?

II

Did the circuit court err in ruling that certain statements made by Sophia to a therapist were inadmissible hearsay not covered by the hearsay exception for statements made for purposes of medical diagnosis and treatment?

III

Did the circuit court err in awarding attorneys’ fees to Petito? For the reasons to follow, we shall affirm the circuit court’s judgment. FACTS AND PROCEEDINGS Joanna Davis and Michael Petito were married in December of 1998 and were granted an absolute divorce on April 11, 2006. Sophia, born on October 22, 2003, is their only child.

Prior to the absolute divorce, the court granted a limited divorce and gave Davis primary physical custody of Sophia with Petito having overnight visitation with Sophia every other weekend and every other Wednesday. The parties shared legal custody. Custody and visitation remained the same after the absolute divorce was granted. Davis lives with her mother.

During the relevant time periods, Petito lived some of the time with his parents and ⁴⁹³ some of the time with his girlfriend, Christina Torres, and Torres’s daughter Jules. Sophia spent some of her overnight visits with Petito at her paternal grandparents’ house and some at Torres’s house. In the fall of 2008, Sophia, then almost 5, started acting out when it was time to leave with her father for their scheduled visits. She screamed and cried and refused to go with him.

According to Davis, Sophia began having nightmares around this time as well. Sophia also held her bowels while at her father’s house. Both parents agreed that she should start seeing a therapist. On October 20, 2008, Sophia started therapy with Donna Leffew, a licensed clinical professional counselor (“LCPC”).

Leffew conducted separate intake interviews with each parent at the start of the sessions. Prior to meeting with Sophia for the first time, Leffew met with Davis. She met with Petito shortly after the sessions had started. Both parents reported similar issues with Sophia, including difficulty sleeping, nausea, and anxiety.

Davis informed Leffew during her intake interview that Sophia had reported a nightmare in which “a monster came in the room and it poked her in her heiney.” During her sessions with Leffew, Sophia was asked about her nightmares and drew pictures of a monster with a protrusion (“his thing”) around his waist level that she said stuff came out of and could get into her. She became extremely anxious when discussing the monster, raising her voice and scribbling hard on her paper. As the sessions progressed, Sophia told Leffew that she saw the monster only when she was with Petito. At one point, she told Leffew that the monster “looks like daddy” and smelled like him.

She also acted out her nightmares with dolls, always using a lizard doll to represent the monster and placing it on top of a girl doll, face to face, lying down on the couch. Sophia never told Leffew that her father had committed any act that would constitute sexual abuse, however. On December 8, 2008, Leffew made a report of suspected sexual abuse to the Wicomico County Department of Social ⁴⁹⁴ Services (“DSS”). That same day, Sophia was interviewed by Anita Murphy, a DSS investigator.

Sophia made no specific disclosures of abuse to Murphy. Murphy recommended that an extended forensic evaluation be performed. Sophia underwent a physical examination on December 4, 2008, and again on January 15, 2009. Both were performed by Jennifer Wehberg, M.D., and revealed no physical evidence of abuse.

The Wicomico County Sheriffs Department conducted a separate criminal investigation of the report of suspected sexual abuse. On December 3, 2008, Detective John Seiche-pine, who is assigned to the Wicomico County Child Advocacy Center (“CAC”), was given Sophia’s case. He observed from a remote location Murphy’s initial interview with Sophia. The next day, Detective Seichepine interviewed Petito at the CAC.

Petito denied having had sexual intercourse with his daughter, otherwise touching her inappropriately, or ever masturbating in her presence or in her bedroom. He acknowledged blacking out while drunk but denied consuming alcohol while Sophia was in his care. With Petito’s cooperation, the Sheriffs Department obtained a search warrant for his parents’ home and for Torres’s home. During the search of Torres’s home, a light was used in Sophia’s bedroom to detect possible semen.

Several stains fluoresced on the nightstand next to Sophia’s bed, on the floor next to the bed, on the floor near Sophia’s dresser, and on the dresser itself. All of the stains were swabbed and DNA testing was performed. All were negative for semen. On December 29 and 31, 2008, Farah Smith, an LCPC, conducted an extended forensic evaluation of Sophia.

During Smith’s sessions with Sophia, the child reported that a monster came into her bedroom at night and “poked her in the butt.” She described the monster as making grunting noises and said that it looked like Petito. She also said the monster only came when she was staying with Petito at Torres’s house. At the conclusion of the evaluation, Smith recommended a finding of indicated child sexual abuse. Smith concluded that Petito likely had masturbated in Sophia’s presence. ⁴⁹⁵ On December 22, 2008, Davis filed an emergency complaint for immediate custody of Sophia based on the allegations of abuse.

On December 31, 2008, Petito was arrested and charged with a third-degree sex offense. His case later was placed on the stet docket upon the condition that he have no contact with Sophia, aside from court-ordered therapeutic visitation, pending the outcome of the instant case. In February of 2009, without Petito’s knowledge, Leffew resumed therapy sessions with Sophia. 1 Leffew continued to hold sessions with Sophia until July 15, 2009. During that period, Leffew met with Sophia seven times.

The sessions ceased after Petito learned of the therapy and refused to allow it to continue. In the meantime, on March 5, 2009, Petito filed a counter-complaint for modification of custody. He sought joint physical and legal custody of Sophia with an expanded access schedule. He also sought a decrease in child support, occasioned by a change in Davis’s income, and an award of attorneys’ fees and costs.

The case was scheduled for a hearing before a master to take place on September 3, 2009. That day, a continuance was granted after Davis’s rebuttal expert was excluded. (We shall discuss the exclusion of that expert witness in greater detail, infra.) The hearing was rescheduled to take place before the court in November. In the interim, the parties entered into a consent order pursuant to which Sophia would begin therapy with Christy McGurgan, an LCPC with Worcester Youth and Family Counseling Services, and would begin therapeutic visitation with Petito supervised by Cathy Beers, a social worker.

Beginning on November 23, 2009, the case was tried to the court over six days in 2009 and 2010. 2 The matter was ⁴⁹⁶ bifurcated, with the first five days of trial being devoted solely to the issue of alleged sexual abuse and the last day of trial being devoted to all remaining issues, including other grounds for modification of custody, attorneys’ fees, and a contempt complaint against Davis for failing to take Sophia to court-ordered therapeutic visitation with Petito. During the first part of the trial, Davis testified and called nine witnesses, including Leffew, Smith, Detective Seichepine, and Petito. Leffew and Smith both were qualified and accepted by the court as experts. Petito testified in his case and called four witnesses, including Kathleen Killeen, Ph.D., whom he had designated as an expert in “clinical psychology, child development, psychopathology and treatment, evaluation and training of child sexual abuse, and forensic interviews with children.” Finally, counsel for Sophia called McGurgan.

At the conclusion of all the evidence related to the allegations of sexual abuse, the court advised the parties that it would make its decision on the issue prior to commencement of the second phase of the trial. On February 12, 2010, the court issued a memorandum opinion ruling that Davis had failed to prove the allegations of sexual abuse against Petito. The court noted that Davis had relied heavily upon the testimony of Leffew and Smith regarding their interviews with Sophia. The court explained Davis’s theory that sexual abuse had occurred as follows: [Davis] asks the Court to find that the “monster” is [Petito], and that [Petito] commits these sexually abusive acts on the minor child.

To agree with [Davis], the Court would have to connect the dots linking the “monster’s” conduct to sexually abusive conduct and linking the “monster” to [Peti-to]. The court determined that Davis had failed to meet her burden of proof in this respect. The court emphasized that neither Smith nor Leffew had offered a “consistent, credible opinion! ]” as to what, if anything, had transpired between Petito and Sophia. Leffew had been unable to opine as to any specific abusive conduct by ⁴⁹⁷ Petito.

Although Smith had testified that Petito had “poked Sophia in the butt” and had “masturbated in [ ] Sophia’s presence,” the court discounted Smith’s testimony, in reliance upon the opinions of Petito’s expert, Killeen. Killeen had testified, generally, that Sophia’s statements were “insufficient to support a finding of sexual abuse.” In Killeen’s opinion, Sophia’s resistence to visitation with her father was consistent with a “loyalty conflict[ ]” often seen in children after divorce when the parents are in a “high conflict” relationship. Emails between the parents had established to the court’s satisfaction that Davis and Petito’s relationship post-divorce was one of ongoing hostility. Killeen also had testified that Leffew and Smith’s interview methods were improper for a child of Sophia’s age.

Specifically, they had used “leading, suggestive, and yes/no questions.” According to Killeen, these interview methods are improper because most five-year-old children will want to please and agree with their interviewers and will answer yes/no questions affirmatively, even when they know the answers to be false. This can lead to “source memory problems,” ie., that in future conversations the child will build upon her own previous, false answers. The court cited an example from Sophia’s interview with Smith during which Sophia had misunderstood a word that Smith had used in posing a question and then had tried to incorporate the misunderstood word into her response. The court also credited Killeen’s opinion that it was the interviewers, not Sophia, who first made the link between the monster and Petito and who suggested that the monster was real, not imaginary.

Killeen had testified that, once these suggestions were made to Sophia, her subsequent disclosures were suspect. Killeen also had opined that the interviewers seemed to approach the sessions with a predetermined belief that sexual abuse had occurred. For that reason, they had failed to consider alternative hypotheses, such as the possibility that Sophia was upset with her father because he had spanked her. ⁴⁹⁸ The court found Killeen’s testimony to be “convincing and credible” and concluded that Davis had “failed to meet her burden of showing that it is more likely than not that sexual abuse by [Petito] has occurred.” The court was particularly persuaded by “the significance of the fact that the minor child has not ever independently connected the ‘Monster’ to [Petito] and [Petito] to sexual abuse.” The court also found that, even in the face of “leading, suggestive, and improper questions, the minor child [] never affirmatively confirmed these connections.” After the court issued its memorandum opinion, the remaining issues were tried for one day. The court thereafter issued a second memorandum opinion and an order finding both parents to be fit; ordering that Davis would remain the primary physical custodian; awarding Davis sole legal custody (because the parties’ relationship was too contentious to continue joint custody); setting forth a detailed, phased schedule of therapeutic and supervised visitation followed by a regular visitation schedule that slightly increased Petito’s access to Sophia; finding Davis in contempt for failure to abide by the prior visitation order; and awarding Petito $80,773.54 in attorneys’ fees.

After timely motions to alter or amend were filed by both parties and the court issued an amended judgment, Davis noted this appeal. We shall include additional facts in our discussion of the issues, as necessary. DISCUSSION I. Exclusion of Expert Witness The trial date in this case originally was scheduled for September 3, 2009. A scheduling order directed that expert witnesses were to be disclosed within 60 days of trial (by July 6, 2009), and that rebuttal experts were to be disclosed within 15 days thereafter (by July 21, 2009).

On June 24, Petito ⁴⁹⁹ identified Killeen as an expert to rebut the anticipated testimony of Leffew and Smith and to challenge the investigative techniques used by the interviewers in the case. On July 2, Davis identified Leffew and Smith as experts who would testily in her case-in-chief. Then, on July 23, Davis identified Joanna Silberg, Ph.D., a psychologist, as a rebuttal expert who would counter Killeen’s testimony. Petito did not challenge Davis’s designation of Silberg as being untimely.

During a deposition five days later, Petito’s lawyer informed Davis’s lawyer that he was planning to challenge Silberg’s designation because Petito and Petito’s criminal defense attorney in the related criminal case previously had spoken to Silberg over the telephone to determine if she would testify on Petito’s behalf in that case. On August 14, 2009, Davis filed a motion in limine asking the court to rule before trial as to whether Silberg could testify. She stated in the motion that Silberg had no recollection of any contact with Petito or his attorney; that Silberg does not maintain records of telephone calls she receives in which people seek to retain her as an expert; and that Silberg did not believe it would pose an ethical conflict for her to testify on Davis’s behalf. Davis later filed an affidavit from Silberg to that effect.

Petito filed an opposition in which he stated that “[t]he privilege which creates a conflict does not lie in the purview of Dr. Silberg to exercise, but rather the privilege lies with Mr. Petito.” He attached two affidavits, one that he had signed and one signed by his criminal defense attorney. Petito’s affidavit stated that, during the pendency of the related criminal case, he had had “occasion to speak with Dr. Joyanne [sic] Silberg with regard to the facts in the case, her thoughts with respect to those circumstances, and her availability as a possible expert witness” for Petito. Petito’s criminal defense attorney averred that as part of [his] representation of Mr. Petito, [he] had the occasion to speak to Dr. Joyanne [sic] Silberg with respect to the circumstances of the matter that resulted in the criminal charges against [his] client, her thoughts with ⁵⁰⁰ respect to those facts, and her possible availability as an expert witness on behalf of [his] client. The affidavits did not state that Silberg ever had been retained as an expert witness by the defense in the criminal case, and it is apparent that she was not retained. 3 On August 31, 2009, the court issued an order that “the motion [in limine ] is denied.” It was entered the following day. 4 When the parties appeared before a master on the September 3, 2009 trial date, it became apparent that there was confusion over whether the order denying the motion in limine was intended to leave the question whether Silberg could testify open for decision during trial or whether the order affirmatively precluded Silberg from testifying.

Initially, the master issued her own ruling excluding Silberg as a witness and then denied Davis a requested continuance to designate a new rebuttal expert. After further discussion, however, the master conferred with counsel in chambers and then contacted the judge who had issued the order denying the motion in limine. The judge immediately amended the August 31, 2009 order by interlineation, to state: “It appearing that the above ruling [denying the motion in limine ] was not clear to all parties, Dr. Silberg may not testify.” The master then withdrew her own ruling and granted a continuance until November 23, 2009, suggesting that this would allow Davis to “retain an alternative rebuttal expert.” The docket entries state that Davis’s motion for a continuance to designate a new expert was denied, however, and do not otherwise reference a deadline for designating a new rebuttal expert. 5 ⁵⁰¹ On September 14, 2009, Davis designated Jennifer Weh-berg, the medical doctor who had examined Sophia after Leffew had made the report to DSS, as both an expert witness in her case-in-chief and a possible rebuttal expert. Ten days later, Davis filed a motion to extend time to identify a rebuttal expert or, alternatively, to again postpone the trial.

In the motion, she explained that she recently had changed counsel and now was being represented pro bono by the non-profit Sexual Assault Legal Institute (“SALI”). Her new lawyer was seeking another rebuttal expert and anticipated designating one in the next few days. Petito opposed Davis’s motion. Sophia’s counsel did not oppose an extension of the deadline to name a rebuttal expert, but opposed any postponement of the trial date.

On October 26, 2009, the motion to extend time and/or postpone the trial date was denied. Davis had not identified another rebuttal expert before then. As noted, the trial began on November 23, 2009. Davis did not renew her objection to the exclusion of Silberg’s testimony.

She also did not proffer to the court the testimony that Silberg would have offered to rebut Killeen’s testimony. On appeal, Davis contends the circuit court erred by applying an incorrect legal standard in deciding to preclude Silberg from testifying as an expert witness. The error was prejudicial, Davis maintains, because it left her without an expert witness to rebut Killeen’s testimony. She posits that, for the court to preclude Silberg from testifying based upon Silberg’s prior contact with Petito and his criminal defense lawyer, the court had to find 1) that it was objectively reasonable for Petito to believe he and Silberg had entered into a confidential relationship and 2) that Petito actually had shared confidential information with Silberg.

Davis complains that the court made no such finding and, more important, there were no facts in evidence that could have supported such a finding. Petito counters that this issue is not preserved for review because Davis failed to make a proffer of Silberg’s testimony; even if the issue were preserved, the court did not abuse its ⁵⁰² discretion or err in excluding Silberg; and, if there was an abuse of discretion or error, it was not prejudicial because Davis was afforded a full opportunity to designate a new rebuttal expert. 6 We begin by considering the preservation issue. Rule 5-103, entitled “Rulings on Evidence,” 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, and ...

(2) ... [i]n case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer on the record or was apparent from the context within which the evidence was offered. A Committee Note to the rule states that it “is not intended to preclude the making of objections or offers of proof by a motion in limine ” and cites to the Court of Appeals’ decision in Prout v. State, 311 Md. 348 , 535 A.2d 445 (1988). 7 In Prout , at the outset of a jury trial in a criminal case, before any witnesses were called, the defendant made an oral “motion in limine ” seeking permission to cross-examine the complaining witness about her prior criminal convictions. The trial court denied the motion, which had the effect of excluding the evidence. 8 When the complaining witness later was called ⁵⁰³ to testify, the defendant did not renew his motion, attempt to cross-examine the witness about her prior convictions, or make a proffer to the court. The Court of Appeals held that the propriety of the trial court’s ruling was preserved for appellate review, opining: Whether a trial judge’s ruling granting a motion in limine may be reviewed on appeal when there is no subsequent proffer of the evidence at trial presents a question of first impression in this Court.

Typically, a motion in limine is a motion made before or during a jury trial outside of the hearing of the jury, the purpose of which is to prevent the jury from hearing certain questions and statements that are allegedly prejudicial to the movant. Specifically, the motion usually seeks an order restricting opposing counsel from offering questionable evidence before the judge has had an opportunity to rule on its admissibility. Evidence is most often sought to be excluded because it is incompetent, irrelevant, immaterial, privileged, or otherwise inadmissible. See generally McCormick on Evidence § 52, at 128 (E. Cleary 3d ed.1984).

Thus, the real purpose of a motion in limine is to give the trial judge notice of the movant’s position so as to avoid the introduction of damaging evidence which may irretrievably infect the fairness of the trial. Obviously, the trial judge may either grant or deny the motion. If the trial judge admits the questionable evidence, the party who made the motion ordinarily must object at the time the evidence is actually offered to preserve his objection for appellate review. However, when the trial judge resolves these motions by clearly determining that the questionable evidence will not be admitted, and by instructing counsel not to proffer the evidence again during trial, the proponent of the evidence is left with nothing to do at trial but follow the court’s instructions.

Under these circumstances, the court’s ruling controls the subsequent ⁵⁰⁴ course of the trial and the proponent’s objection is preserved for review without any further action on his part. Id. at 355-56, 535 A.2d 445 (footnote omitted). See also J.L. Matthews, Inc. v. Maryland-National Capital Park and Planning Comm’n, 368 Md. 71 , 106 n. 29, 792 A.2d 288 (2002) (stating that it is “well-established that after the judge’s preclusion of the evidence [on a motion in limine ], Petitioner was not required to proffer that evidence at trial.”). In Simmons v. State, 313 Md. 33 , 542 A.2d 1258 (1988), decided soon after Prout , the Court held that a claim of error in the granting of a motion in limine precluding the appealing party’s expert witness from testifying was preserved for review without a proffer being made during trial.

In Simmons , at the outset of trial, the State moved in limine to preclude the defendant from calling his proposed expert in psychiatry. After the jury was selected, and during a recess, the court heard argument on the motion. Defense counsel explained that he intended to call the psychiatrist to testify about the nature of the defendant’s subjective beliefs at the time he committed the crime. The court ruled that the expert could not testify.

The trial continued and defense counsel never sought to call the psychiatrist as a witness or to proffer her testimony. On appeal after conviction, the defendant contended that the court’s ruling precluding the psychiatrist’s testimony was in error. The State responded, inter alia, that the issue was not preserved for review. Ultimately, the Court of Appeals held that, once the court granted the motion in limine, the defendant was not required to call the expert witness to the stand or to further proffer her testimony.

The Court explained that, when a judge has ruled on a motion in limine by excluding the evidence in question, and intends the ruling to “be final” and unconditional, then to require the proponent of the evidence “to make a more specific proffer or to offer the evidence again during the trial in order to preserve the issue for appellate review is unwarranted and would unduly interfere with the orderly progression of the trial.” 313 Md. at 38 , 542 A.2d 1258 . ⁵⁰⁵ In the case at bar, Prout and Simmons control the outcome of the preservation issue. The prehearing ruling denying the motion in limine, and hence directing that Silberg would not be permitted to testify, was a final and unconditional ruling, as the September 3, 2009 amendment to the August 31, 2009 order denying the motion in limine made clear. 9 As discussed, supra, Davis filed a motion in limine asking the court to permit Silberg to testify. The motion was denied by line order. She subsequently argued the issue before the master originally assigned to the case, resulting in the court’s issuing a revised order clarifying that Silberg would not be allowed to testify at the merits hearing.

When the merits hearing eventually commenced, Davis did not raise the issue again or otherwise proffer to the court the testimony that Silberg would have given. Under the authority of Prout and its progeny, however, she was not obligated to make a proffer once the court had finally ruled on her motion in limine. Petito argues, in tandem with his failure to timely object argument, that Davis failed to proffer to the trial court the substance of Silberg’s expected testimony. For the same reasons we have discussed above, a proffer was not required at that time.

Petito’s written and filed amended designation of Killeen as a rebuttal expert witness stated that she would “opine that the protocol, standard of practice, information gathering techniques, interview process, investigation and extensive forensic evaluations of [Sophia] as it relates to sexual abuse was not appropriately conducted and that there was no reliable information to conclude [Sophia] was sexually abused.” ⁵⁰⁶ Davis’s written designation of Silberg, filed two days later, stated that Silberg. would be called “to rebut the opinions, findings and testimony of [Killeen].... ” Accordingly, when the ruling on the motion in limine was made, before the first scheduled trial date, the court knew that Silberg would testify that the interviews and evaluations of Sophia by Leffew and Smith were appropriately conducted and that there was reliable information to conclude that Sophia was sexually abused. This amounted to an adequate proffer of Silberg’s anticipated testimony. We now turn to the substantive question whether Silberg properly was precluded from testifying as an expert witness for Davis based on her prior contact with Petito. In Maryland, the trial court is vested with broad discretion in ruling on whether to admit or exclude expert testimony.

Massie v. State, 349 Md. 834, 850-51 , 709 A.2d 1316 (1998). On review of such a decision, we only will reverse a judgment upon a determination that the trial court abused its discretion or made an error of law or “some serious mistake.” Franch v. Ankney, 341 Md. 350, 364 , 670 A.2d 951 (1996). In advancing her argument that the trial court erred in precluding Silberg from testifying, Davis primarily relies upon Butler-Tulio v. Scroggins, 139 Md.App. 122 , 774 A.2d 1209 (2001). In that case, the plaintiff cut her wrist on a piece of glass and was operated on by Scroggins, a defendant.

Afterward, the plaintiff continued to experience pain and eventually underwent a second surgery performed by another doctor. The second doctor discovered that a micro-surgical suture needle had been left in the plaintiffs wrist during the first surgery. Two years after the second surgery, the plaintiff consulted with a plastic surgeon, complaining of continuing weakness, abnormal sensation, and decreased movement in her hand. The plastic surgeon (Dr. Leuthke) advised the plaintiff that she was suffering from a median nerve injury.

He did not recommend further surgery, however. At the end of the consultation, the plaintiff asked Leuthke if he “ ‘could support ⁵⁰⁷ her claim of negligence’ ” against Scroggins and the hospital where her first surgery had been performed. Id. at 132 , 774 A.2d 1209 . Leuthke replied that the micro-surgical needle left in the plaintiffs hand during that surgery would have had “little, if any effect” on her current condition and that he could not support her claim.

Id. The plaintiff sued Scroggins and the hospital for medical negligence. At trial, she called two expert witnesses. Over objection, the defendants called Leuthke to testify as an expert.

He testified consistent with the opinion he had given the plaintiff. He also testified that his impression after examining the plaintiff was that she was “hoping for someone or a physician to support her claim of negligence.” Id. at 134 , 774 A.2d 1209 . The jury returned a verdict in favor of the defendants. On appeal, the plaintiff argued that the trial court had abused its discretion in permitting Leuthke to testify as an expert witness against her.

She asserted that 1) as her treating physician, Leuthke owed her a fiduciary duty, which he violated by testifying for her opponent; 2) the probative value of Leuthke’s testimony was outweighed by its prejudicial effect; 3) allowing Leuthke to testify threatened the integrity of the judicial process; and 4) Leuthke had had an improper ex parte contact with the defendants’ lawyers. Relying largely upon the absence of a physician-patient privilege in Maryland, we held that Leuthke did not violate any fiduciary duty. As to the probative value issue, we pointed to civil cases in Maryland in which experts retained by one party, but not actually called to testify by that party, were allowed to be called as witnesses for the other party. See Rubin v. Weissman, 59 Md.App. 392, 403 , 475 A.2d 1235 (1984).

We noted, moreover, that the Court of Appeals has held that an expert witness called by one party can testify that he or she previously had been retained as an expert by the other party. See Mayor and City Council of Baltimore v. Zell, 279 Md. 23, 28 , 367 A.2d 14 (1977) (defendant in condemnation action permitted to elicit testimony from an appraiser ⁵⁰⁸ that he previously had been retained as an expert for the City); Levitsky v. Prince George’s County, 50 Md.App. 484, 495 , 439 A.2d 600 (1982) (County permitted to elicit testimony in a condemnation action that an appraiser testifying on its behalf previously had been retained by the defendant). Observing that Leuthke had not been retained as an expert witness by the plaintiff, we rejected the contention that the plaintiff had been unfairly prejudiced by his testimony on behalf of her adversary. As to the integrity of the judicial process, we looked to two federal district court civil cases cited by the plaintiff.

In the first, W.R. Grace & Co. v. Gracecare, Inc., 152 F.R.D. 61 (D.Md.1993), corporate counsel for W.R. Grace, the plaintiff, had contacted a trademark attorney by telephone to retain his services to assist with trial preparation in the particular trademark case at issue (and another trademark matter). Corporate counsel had discussed the marks at issue, some legal issues that had arisen, arguments being made by the defendants, and “some of’ lead outside counsel’s and corporate counsel’s thoughts “on certain issues in the case.” Id. at 63 . W.R. Grace’s corporate counsel testified that he thought an attorney-client relationship had been formed between W.R. Grace and the trademark attorney with respect to the trademark case and that they would be communicating further about it. W.R. Grace paid the trademark lawyer for the 30 minutes the telephone call lasted.

About a month later, the same trademark attorney was retained as an expert witness by the defense in the trademark case. W.R. Grace filed a motion to disqualify him. The defense filed an opposition in which defense counsel asserted, by affidavit, that the expert had told him that he briefly had discussed a case with corporate counsel for W.R. Grace, but not any substance or theories or even the names of the defendants, and that he had assumed when he did not hear anything more that he was not being retained. Explaining that it had “the inherent power to disqualify experts” and that that power derived from “the necessity to ⁵⁰⁹ protect privileges which may be breached when an expert switches sides,” the court granted the motion to disqualify the trademark attorney as an expert witness for the defense.

Id. at 64 . Applying a two-part test previously adopted in Paul v. Rawlings Sporting Goods Co., 123 F.R.D. 271, 278 (S.D.Ohio 1988), the court stated that it was required to determine whether the attorney or client acted reasonably in assuming that a confidential relationship of some sort existed [with the expert], and, if so, whether the relationship developed into a matter sufficiently substantial to make disqualification or some other judicial remedy appropriate. Id. (internal quotation omitted).

The court presumed that such a relationship is sufficiently “substantial” when “there is ‘a reasonable probability that confidences were disclosed’ which could be used adversely later.” Id. at 65 (quoting Stitz v. Bethlehem Steel Corp., 650 F.Supp. 914, 916 (D.Md.1987)). It also emphasized the expert’s status as an attorney, observing, “Where there is a confidential relationship with an attorney-expert, a court should search for the reasonable probability that the attorney-expert has confidences on the matter at issue, and not simply that confidences passed.” Id. In the second case, Cordy v. Sherwin-Williams Co., 156 F.R.D. 575 (D.N.J.1994), the plaintiff was injured in a bicycle accident on a railroad crossing owned by the defendant. He retained as an expert a forensic engineer who specialized in bicycle accidents.

Plaintiffs counsel gave the expert a three-ring binder documenting his investigation, including his impressions of the case, witness interviews, and a report by another expert witness. The expert billed the plaintiff for 27 hours of work and rendered at least one oral opinion to plaintiffs counsel. He later resigned and refunded his retainer. Subsequently, he was retained by defense counsel.

The plaintiff then moved to preclude him from testifying. The district court noted that the party seeking disqualification bears the burden of establishing the existence of a confidential relationship with the expert. The court applied a two-part test similar to that used in W.R. Graze, supra: ⁵¹⁰ “First, was it objectively reasonable for the first party who retained the expert to believe that a confidential relationship existed? Second, did that party disclose any confidential information to the expert?” Id. at 580 (citing Paul, supra, 123 F.R.D. at 279 ).

The court also considered the competing policy objectives when expert disqualification is at issue. It concluded that both prongs of the test had been satisfied, opining that it was a clear cut case given that the expert actually had been retained by the plaintiff. This Court declined to extend the W.R. Grace holding to the facts in Butler-Tulio . We reasoned that the W.R. Grace case was distinguishable because the expert witness there was an attorney and the existence of an attorney-client privilege was outcome determinative.

We also distinguished Cordy because the plaintiff in Butler-Tulio never had retained Leuthke as an expert witness and because, unlike in Cordy , when significant disclosures had been made, Leuthke had been given “only a bare bones medical history and description of appellant’s claim.” Butler-Tulio, supra, 139 Md.App. at 149 , 774 A.2d 1209 . Ultimately, we affirmed the trial court’s decision allowing Leuthke to testify. The case at bar, like Butler-Tulio and the other cases discussed above, is a civil action. Unlike any of those cases, however, the initial contact with Silberg, the expert witness at issue, happened in the context of a criminal case, with the contact being made by the criminal defendant (Petito) and his defense counsel.

The Maryland body of caselaw pertaining to expert witness disqualifications in criminal cases differs markedly from the caselaw on that issue in civil actions. In State v. Pratt, 284 Md. 516 , 398 A.2d 421 (1979), superseded by statute on other grounds, defense counsel in a murder case retained a psychiatrist to examine the defendant to render an opinion as to whether she was insane when she shot and killed her husband. Criminal agency was not disputed and the outcome of the trial depended upon a jury’s finding on sanity. The psychiatrist opined that the defendant had not been insane at the time of the homicide.

At trial, the State ⁵¹¹ attempted to call the psychiatrist as its own witness. The defendant objected on the ground of attorney-client privilege. The trial court overruled the objection and permitted the State to call the psychiatrist to the stand. On appeal after a finding of sanity and a conviction, this Court reversed, holding that the defendant’s communications with the psychiatrist were within the scope of the attorney-client privilege.

Pratt v. State, 39 Md.App. 442, 446-51 , 387 A.2d 779 (1978). The Court of Appeals agreed. It held that the scope of the attorney-client privilege extends to agents whose services are required by counsel for a criminal defendant to properly prepare the client’s case for trial. The Court explained: Initially, we observe that, given the complexities of modern existence, few if any lawyers could, as a practical matter, represent the interest of their clients without a variety of nonlegal assistance.

Recognizing this limitation, it is now almost universally accepted in this country that the scope of the attorney-client privilege, at least in criminal causes, embraces those agents whose services are required by the attorney in order that he may properly prepare his client’s case. Consequently, in line with the views of the vast majority of the courts in our sister jurisdictions, we have no hesitancy in concluding that in criminal causes communications made by a defendant to an expert in order to equip that expert with the necessary information to provide the defendant’s attorney with the tools to aid him in giving his client proper legal advice are within the scope of the attorney-client privilege. 284 Md. at 520 , 398 A.2d 421 (citations omitted). Indeed, the State in Pratt did not dispute that the defendant’s communications with the psychiatrist were within the scope of the attorney-client privilege. Its contention was that the privilege had been waived.

The Court concluded that it had not, and that the trial judge should have precluded the State from calling the psychiatrist retained by the defense as an expert at trial. ⁵¹² Likewise, in Rubin v. State, 325 Md. 552 , 602 A.2d 677 (1992), the Court of Appeals held that certain information a private investigator had gained in the course of his retention by the defendant was protected by the attorney-client privilege and therefore the trial court had erred in allowing an employee of the investigator to testify as a State’s witness about the information. The defendant had hired the investigator in the course of a divorce action, to find out whether her husband was committing adultery. As she became friendly with the investigator, she told him that she herself had had an affair and that her husband had tried to poison her boyfriend. The investigator referred her to a criminal defense attorney, whom she retained.

The attorney contacted prosecutors, gave them the information about the attempted poisoning, and obtained a commitment that the client would not be prosecuted in connection with the attempted poisoning if she cooperated with police and told the truth about the situation. Meanwhile, the defendant arranged a meeting with her husband and shot and killed him. She then contacted the investigator, who arrived with one of his employees, and showed him the body. At the investigator’s urging, she contacted her attorney, who also came.

Later that evening, when they all were together, the investigator’s employee saw six rounds of live .22 caliber ammunition in the defendant’s handbag. He contacted the police and, following an investigation, the defendant was indicted for murder. At trial, the State presented evidence that the victim had been killed with a .22 caliber handgun and called the investigator’s employee to testify about the live rounds he had seen in the defendant’s purse on the night of the shooting. Over objection, the court allowed that evidence in.

The defendant was convicted. On appeal, one of the defendant’s contentions was that the trial court had erred in allowing the State to call the investigator’s employee to testify about what he had seen in the defendant’s purse. The Court of Appeals, relying upon Pratt, agreed that, for purposes of the criminal charges against the defendant arising out of the shooting death of her husband, the communications, including all information passed between ⁵¹³ the defendant and the investigator (and his employees), were covered by the attorney-client privilege. Accordingly, the trial court had erred in allowing the State to call the investigator’s employee as a witness.

The Court of Appeals held that the error was harmless, however, because there was other overwhelming evidence against the defendant. This Court was presented with a similar question in Morris v. State, 59 Md.App. 659 , 477 A.2d 1206 (1984). There, the defendant was found guilty of murder and arson. Before trial, defense counsel had retained a scientific expert to analyze the contents of a stain on the shirt the defendant had been wearing at the time of the crime.

Because the defense refused to stipulate to chain of custody, the court ordered the prosecutor to deliver the shirt to the laboratory where the tests were to be performed and to be present during the testing. Apparently, the testing yielded a result that was not helpful to the defendant but was helpful to the State. When the State subpoenaed the expert witness to testify at trial, the defense filed a motion to quash on the ground that allowing the State to call the witness as its own expert at trial would violate the attorney-client privilege. The trial court denied the motion and permitted the expert witness to testify at trial on behalf of the State.

On appeal, we affirmed the judgment. We distinguished State v. Pratt on the ground that the expert witness’s opinions, based on the tests he performed on the shirt, were purely scientific and did not depend upon any disclosures by the defendant: [T]he experiments conducted by the expert with the shirt worn by the defendant and the opinions he reached as a result of these scientific explorations were not predicated upon any information furnished by the defendant to either his attorney or to the expert and were not therefore