Frankel v. Deane

Bennett Frankel, et al. v. Casey Lou Deane, No. 43, September Term, 2021. Opinion by Gould, J. EXPERT TESTIMONY – MEDICAL MALPRACTICE The trial court’s admission or exclusion of expert medical testimony is reviewed on an abuse of discretion standard. When assessing the admissibility of such testimony, the court may not resolve disputed material facts or witness credibility issues; such issues are for the jury to decide. The court abuses its discretion when it excludes testimony based on the court’s factual determinations on genuinely disputed issues.

EXPERT TESTIMONY – MEDICAL MALPRACTICE Under Meda v. Brown, 318 Md. 418 (1990), in a medical malpractice case, if the expert cannot ascertain the precise cause of the injury, inferential reasoning is permissible to establish the elements of breach and causation so long as each inference is supported by expert testimony. Circuit Court for Calvert County Case No.: C-04-CV-18-000396 Argued: March 7, 2022 IN THE COURT OF APPEALS OF MARYLAND No. 43 September Term, 2021 ______________________________________ BENNETT FRANKEL, ET AL. v. CASEY LOU DEANE ______________________________________ *Getty, C.J. Watts Hotten Booth Biran Gould McDonald, Robert N. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Gould, J. Watts, J., dissents. ______________________________________ Filed: August 25, 2022 *Getty, C.J., now a Senior Judge, participated in the hearing and conference of this case while being an active member of this Court. After Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this being recalled pursuant to Md. Const., Art. IV, document is authentic. § 3A, he also participated in the decision and 2023-03-20 14:04-04:00 adoption of this opinion.

Gregory Hilton, Clerk BACKGROUND A This is a medical malpractice case arising out of the removal of Casey Lou Deane’s lower and upper wisdom teeth by Dr. Bennett Frankel. Dr. Frankel performed the surgery on January 14, 2016.1 Ms. Deane signed consent forms and was, according to Dr. Frankel’s medical notes, “told of possible complications, mainly pain, burning, paresthesia lower lip, chin, tongue[.]” When Ms. Deane awoke after the surgery, she was in pain and couldn’t speak or feel her tongue. She was told to go home and rest and was assured that her condition would improve once the anesthesia wore off. But that did not happen.

Ms. Deane had a follow-up appointment with Dr. Frankel several days after the surgery. Dr. Frankel’s notes from the visit reflect that Ms. Deane complained of pain, paresthesia, and tingling on the front third of both sides of her tongue. Ms. Deane recalled being told “to give it more time to heal[,]” but denied reporting any improvement. Dr. Frankel’s notes also indicate that Ms. Deane had a follow-up appointment scheduled for one week later, which Ms. Deane did not attend.

Regarding that appointment, the notes state, “patient’s complaints getting better” and “not coming back.” Ms. Deane recalled no conversation with anyone from Dr. Frankel’s office about the follow-up appointment. She did recall, however, not wanting to go back to Dr. Frankel 1 Because this is an appeal from a summary judgment, we recite the facts in the light most favorable to the non-moving party, Ms. Deane. because she could not feel her tongue, and yet he told her that she was “okay” and assured her that in time the problems would resolve. She testified, “[s]o I think I was just done.” Several months after the surgery, Ms. Deane’s symptoms continued to show no improvement, so she called Dr. Frankel’s office and scheduled an appointment with a different doctor, Dr. Clay Kim for April 18, 2016. What transpired at Ms. Deane’s appointment with Dr. Kim is in dispute.

Dr. Kim’s progress notes state that Ms. Deane complained that her tongue was numb but also stated that she was “getting better and still tingling” and that her “whole tongue [was] not numb anymore,” and that “. . . [n]ow only [the] right anterior tongue is numb.” The notes also reflect that Dr. Kim examined her mouth and conducted some neurosensory tests, stating, “right anterior 2/3 with mild pain perception, direction, and soft touch sensation intact[.]” Dr. Kim diagnosed a “likely neuropraxia injury” and noted that referral to a “neurologis[t]” might be necessary, but that he recommended “observation for now” and that the “[p]atient will schedule for the above procedure[s].”2 The notes do not reflect that Dr. Kim tested Ms. Deane’s sense of taste or her reaction to hot or cold stimuli. Ms. Deane maintains that, contrary to Dr. Kim’s notes, she told him that her tongue was numb on both sides of the front of the tongue, that it was difficult to talk and eat, and that she was experiencing pain, throbbing, and tingling. She recalled that Dr. Kim poked her tongue with something, but did not recall him mentioning the possible need to see a nerve specialist. 2 It’s not clear to which procedures Dr. Kim’s notes were referring. 2 Roughly six months after the surgery, Ms. Deane still could not feel her tongue, which prompted her to do some research. She found information on bilateral lingual nerve injuries which seemed to produce the same symptoms as those she had been experiencing.

Lacking dental insurance, Ms. Deane did not follow up with another oral surgeon. About two years after her surgery, she decided to call a lawyer, who, in turn, referred her to Dr. Richard Kramer, a dentist who was board-certified as an oral and maxillofacial surgeon. Dr. Kramer’s practice included third molar extractions and diagnosing nerve injuries. After conducting a series of sensory tests on Ms. Deane, Dr. Kramer prepared and sent a report with his findings to her attorney.

His report said: “[t]he injury here is likely a bilateral neurotmesis.”3 Dr. Kramer also opined that, due to the time between the date of the surgery and his evaluation, the injury was permanent. B In August 2018, Ms. Deane filed a malpractice claim against Dr. Frankel and Southern Maryland Oral and Maxillofacial Surgery, P.A. (“Southern”), the practice that employed Dr. Kim. Ms. Deane alleged that she suffered permanent loss of feeling in her tongue because Dr. Frankel severed the lingual nerve while extracting her wisdom teeth, 3 “Neurotmesis is a complete transection of a peripheral nerve.

The severity of peripheral nerve injury can be classified as neurapraxia, axonotmesis, or neurotmesis. Neurotmesis will produce complete sensory and motor deficits to the skin and muscles innervated by the injured nerve.” See Alexjandro J. Matos & Orlando De Jesus, Neurotmesis, NAT’L LIBR. OF MED. (last visited Aug. 12, 2022), https://www.ncbi.nlm.nih.gov/books/NBK559108/#:~:text=Neurotmesis%20is%20a%20 complete%20transection,innervated%20by%20the%20injured%20nerve. 3 and because Dr. Kim failed to promptly refer her to a nerve specialist.

Ms. Deane subsequently amended her complaint to add Dr. Kim as a defendant.4 C Ms. Deane designated two experts: (1) Dr. Kramer, to provide expert testimony on the nature and extent of her alleged injury; and (2) Armond Kotikian, D.D.S., M.D., a board-certified dentist in oral and maxillofacial surgery, to testify on standard of care and causation. Dr. Kramer Dr. Kramer testified at his deposition that the standard of care for diagnosing nerve injuries was set forth in the “Nerve Evaluation Protocol 2014” from the California Association of Oral and Maxillofacial Surgeons (the “2014 Protocol”). The 2014 Protocol recommends a four-part test for providing “a framework upon which evaluation and treatment options could be based.” Dr. Kramer routinely used that test in his practice to diagnose lingual nerve injuries, including with Ms. Deane. Dr. Kramer explained that he “performed pressure, two-point discrimination, taste, and sensation of sharp” on Ms. Deane.

He acknowledged that the test was partly based on the subjective reporting of his patients but stated that he tries “to make it as objective . . . as [he] can.” With Ms. Deane, he used the fluff of a wooden Q-Tip to determine if she could feel a light touch, a broken end of the Q-Tip to test if she could feel a sharp touch, and a metric 4 Dr. Frankel, Dr. Kim, and Southern are collectively referred to herein as the “doctors” or “petitioners.” 4 gauge to measure the distance at which she could distinguish touching sensations in two places. He observed that Ms. Deane had no feeling and no ability to discern feeling in two places on the front two-thirds of both sides of her tongue. Dr. Kramer also conducted a temperature test on Ms. Deane’s tongue, and again, “[t]here was no response.” In addition, Dr. Kramer performed a taste test with a local anesthetic, which is known to be bitter. He put the anesthetic in several different places on Ms. Deane’s tongue, including at the back.

Ms. Dean reported no taste in the front bilateral parts of her tongue. As to the subjective nature of the taste test, Dr. Kramer explained that, for most people, “when you do that, if they can taste it, you can look right at them and know they’re tasting it.” As noted above, Dr. Kramer opined that “[t]he injury here is likely bilateral neurotmesis,” or, as described in his deposition, a “complete transection of the lingual nerve bilaterally[.]” His report also stated that Ms. Deane “will experience no further improvement in her condition[,]” and that the injury was permanent. Dr. Kramer gave two reasons for his opinions: (1) the neurosensory tests showed that Ms. Deane had no feeling in the area of her tongue in front of the wisdom teeth; and (2) the fact that Ms. Deane had no sensation in her tongue two years after the injury meant that the lingual nerve had been severed because otherwise, he would have expected to see some improvement due to nerve regeneration. Dr. Kramer did not review either Dr. Frankel’s or Dr. Kim’s notes prior to his examination.

When asked if a neurosensory exam three months after surgery would have been pertinent to his opinions on nerve injury in this case, Dr. Kramer said “[p]ending the 5 outcome of that exam. Yes.” He then explained that “[b]y example, . . . if someone did an exam of her at three months and she had a normal sensation, that would be quite pertinent to the outcome . . . [b]ecause she didn’t have normal sensation when I saw her nearly two years after the injury.” He testified that seeing improvement three months after surgery, as reported by Dr. Kim, was inconsistent with the conclusions he reached from his examination two years after surgery because if the symptoms had been improving at three months, Ms. Deane’s condition would not have subsequently deteriorated. Dr. Kramer opined that the only diagnosis consistent with Ms. Deane’s persistent loss of taste sensation or feeling in her tongue for two years was a complete severance of the lingual nerve. Dr. Kotikian Dr. Kotikian was designated to testify that “Ms. Deane has developed full anesthesia of her tongue, bilaterally and a likely severance of her lingual nerves, bilaterally, following the extraction of [the lower wisdom teeth] by Dr. Bennett F. Frankel[.]” In addition, he would testify that: (1) the injury “likely occurred while the third molar in question was being sectioned and the bur traversed the lingual plate causing the lingual nerve to be severed”; (2) the injury could have been avoided by placing “a retractor or a periosteal elevator . . . between the lingual plate and periosteum during the time of sections and/or adequate buccal and distal troughs . . . around the teeth”; and (3) the failure to take either precautionary step deviated from the standard of care in oral surgery practice and caused Ms. Deane’s injuries.

Further, Dr. Kotikian would testify that “if the teeth [had not been] transected, then the surgeon cut the flap too widely and outside the intended surgical field.” According to Dr. Kotikian, “each is a deviation from the standard of care.” 6 Dr. Kotikian was also designated to testify that Dr. Kim should have recommended that Ms. Deane take steroids and should have referred her to a neurosurgeon “or nerve repair specialist[,]” as such “treatment . . . is most effective when performed within the first 1-3 months post injury.” At his deposition, Dr. Kotikian testified that he based his opinion on the totality of Dr. Kramer’s diagnosis, Ms. Deane’s testimony concerning her symptoms, relevant scientific literature, and his own experience avoiding permanent lingual nerve injuries by using a retractor/elevator or drilling adequately around the buccal side of the teeth. Dr. Kotikian explained that he was skeptical about the notes from Drs. Frankel and Kim because it was not possible that Ms. Deane had an improvement in sensation, given that Dr. Kramer’s tests found that she exhibited symptoms of total nerve severance, and that nerves do not degenerate over time; if anything, they improve. As to whether Ms. Deane could have been lying to Dr. Kramer in response to the tests he performed, Dr. Kotikian expressed doubt, stating: “when we do these examinations, we’re actually poking and prodding, so if they’re not feeling anything, it’s very obvious because if we stick a needle in there, they’ll jump if they have sensation.” Dr. Kotikian further explained that although a lingual nerve injury is a known risk of wisdom teeth extraction, such injuries are usually temporary, whereas a complete severance of the nerve is permanent.

And, he explained, an oral surgeon could do everything correctly and still cause a temporary nerve injury, but could not completely sever the nerve without deviating from the standard of care. According to Dr. Kotikian, that’s because lingual nerve severance means that the lingual plate must have been crossed 7 in the performance of the extraction, or a retractor was not used to protect the nerve from improper drilling. D Dr. Frankel and Southern both moved for summary judgment, which was, for all intents and purposes, later adopted by Dr. Kim after he was added as a defendant.5 Petitioners argued that there was “no direct or physical evidence of injury or medical circumstances sufficient to allow an expert opinion ‘inference’ that surgical negligence occurred in this matter[.]” Relying on this Court’s opinion in Meda v. Brown, 318 Md. 418 (1990), they contended that inferences of negligence and causation require “sufficient direct and physical evidence[,]” and that “Ms. Deane’s self-serving statements made during litigation and accusing both Dr. Kim and Dr. Frankel of fabricating her reports of improved sensation do not create a dispute of fact sufficient to overcome summary judgment in this matter.” Dr. Frankel further argued that under Meda, the “evidence must show the injury is not something that happens in the absence of surgical negligence[,]” and that the risk of “[t]emporary and/or permanent lingual nerve injury during the extraction of wisdom teeth is well known . . . and . . . does happen when appropriate and reasonable surgical techniques are used.” Dr. Frankel contended that “Dr. Kotikian also testified that lingual nerve injury is a recognized and material risk” of the surgery performed on Ms. Deane. Dr. Frankel argued that “[t]here is absolutely no direct or physical evidence of any injury or abnormal 5 The parties treated Dr. Kim as a party defendant during the summary judgment proceedings, even though Ms. Deane did not add him as a defendant until after the hearing. 8 trauma to [Ms. Deane’s] anatomy” and that the “entire alleged ‘inference’ that negligence occurred is itself based on an invalid and/or speculative ‘inference’ that a specific injury happened.” Putting it less charitably, Dr. Frankel averred that “the entire factual basis of [Ms. Deane’s] case depends on [her] experts’ rewriting the medical history pursuant to the self- serving statements of [Ms. Deane] made for purposes of litigation.” Thus, he contended that the expert testimonies of Drs.

Kramer and Kotikian were inadmissible under Meda, the Frye-Reed standard, and Rule 5-702, and that without expert testimony, Ms. Deane could not present a prima facie case of negligence. In response, Ms. Deane argued, among other things, that genuine disputes of material facts precluded summary judgment, particularly regarding the reliability of Dr. Kim’s and Dr. Kramer’s assessments. Summary Judgment Hearing The court held a hearing on the summary judgment motions on August 7, 2019. As the arguments progressed, the court determined that a Frye-Reed hearing was necessary to consider the admissibility of the testimony of Ms. Deane’s experts.

Although the court made a tentative decision to grant summary judgment in favor of Southern and Dr. Kim on the claim that Dr. Kim negligently failed to refer Ms. Deane to a neurosurgeon, the court deferred ruling on the remaining issues pending the Frye-Reed hearing. The Frye-Reed Hearing In advance of the Frye-Reed hearing, petitioners submitted a bench memorandum, contending that the court should exclude Ms. Deane’s expert witnesses based on Frye-Reed 9 principles. Petitioners argued that: (1) Ms. Deane’s theory of liability was inadmissible because the injuries she incurred were known risks of her procedure that could occur without negligence; (2) Dr. Kotikian’s testimony that she suffered “bilateral severed lingual nerve” damage was inadmissible because it was based on subjective complaints and not on exploratory surgery; and (3) Ms. Deane’s experts’ assertion that the standard of care required a lingual tissue retraction technique was inadmissible because that technique was not generally accepted as being beneficial. Petitioners supported their memorandum with Ms. Deane’s consent form as well as scholarly articles on trigeminal nerve injuries following third molar removal, lingual nerve injuries and nerve damage, and micro neurosurgery of the lingual nerve.

Petitioners did not dispute that the sensory tests conducted by Dr. Kramer were generally accepted methodologies in the medical community, but instead argued that the diagnosis Dr. Kramer made from the test results was not a generally accepted conclusion. In other words, petitioners argued that there was an “analytical gap” between the tests administered by Dr. Kramer and the conclusions that he and Dr. Kotikian drew from them.6 Ms. Deane likewise filed a memorandum, which she supported with party and witness depositions, excerpts from the 2014 Protocol, scholarly articles on trigeminal nerve 6 The phrase “analytical gap” refers to the concept discussed by the United States Supreme Court in General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997), and adopted by this Court in Blackwell v. Wyeth, 408 Md. 575, 606-07 (2009). As explained in Rochkind v. Stevenson, 471 Md. 1 (2020), the analytical gap issue in Blackwell “was whether the Frye-Reed test applied ‘to the analysis undertaken by an expert where the underlying data and methods for gathering this data are generally accepted in the scientific community but applied to support a novel theory’ of medical causation.” Id. at 17 (quoting Blackwell, 408 Md. at 596 ). 10 injuries and the accuracy of clinical neurosensory testing for nerve injuries, and a chapter from a textbook, Clinical Evaluation of Nerve Injuries. Ms. Deane argued that Frye-Reed did not apply because the neurosensory testing technique that her expert utilized was not novel.

Further, she contended that under Maryland Rule 5-702, her experts had sufficient factual support for their opinions, including deposition testimony, medical literature, applicable guidelines, medical records, clinical exercises, training, and education. The Trial Court’s Ruling On April 20, 2020, the circuit court issued a 97-page Memorandum Opinion and Order (the “memorandum order”), granting the summary judgment motions and dismissing Ms. Deane’s complaint with prejudice as to all defendants. Rather than provide our own summary of the court’s ruling, we shall refer to the court’s summary set forth at the outset of its opinion: [T]his Court found herein, applying Maryland’s Frye-Reed Standards, Meda v. Brown, 318 Md. 418, 428 (1990), and Maryland Rule 5-702 principles of law, that Dr. Kramer’s 2018 opined conclusion as to the possible severance in 2016 is based primarily on his examination of Plaintiff almost two years after the fact, and on the Plaintiff’s shaky, uncertain self-reporting to him then in 2018 without him having reviewed the professionally detailed notes and records of Dr. Frankel’s and Dr. Kim’s treatments and examination of Plaintiff, which this Court found met Maryland’s Frye-Reed Standards of scientific, clinical, and analytical reliability as well as to be based on such requisite methodology as required therein. Thus, the Court further found herein that Dr. Kramer’s opined conclusions at the time of his April 2018 examination of Plaintiff, which serve as the lynchpin for Dr. Kotikian’s expert opinions of violations of standard of ordinary care by Dr. Frankel, Dr. Kim, and the Practice, fail to meet, directly or inferentially, the Maryland Frye-Reed, Meda, and Maryland Rule 5-702 standards of scientific, clinical, and analytical reliability as well as to be based on such requisite methodology as required therein.

That is so since Dr. Kramer’s opinion failed to have 11 reviewed the professional and detailed notes and records of Dr. Frankel’s and Dr. Kim’s treatment and examination of Plaintiff and to have weighed and compared them against her uncertain versions of her treatment history with all of the Defendants, which failure he admits in his deposition may have changed his opined conclusion as to the acts and omissions of Dr. Frankel, Dr. Kim, and the Practice being professionally negligent. Nor was his opinion as to the lack of timely referral by Dr. Kim and the Practice constituting professional malpractice adequately supported by the medical authorities and studies relied upon by him. Thus, Dr. Kotikian’s opinions of violations of the standard of ordinary care by Dr. Frankel, Dr. Kim, and the Practice, having been found to have been significantly based on Dr. Kramer’s faulty opined findings and conclusions and unsupported by the medical authorities and studies relied upon by Dr. Kotikian are found on the record herein not to comply with Maryland Frye-Reed, Meda, and Maryland Rule 5-702 standards of scientific, clinical, and analytical reliability as well as not to be supported by such requisite methodology. Accordingly, Dr. Kotikian’s opinions as to violations of the ordinary standard of dental care as to all Defendants are not admissible in this matter, and therefore, inter alia, there is not found ultimately to exist a genuine dispute of material facts, such that Plaintiff’s claims do not survive Summary Judgment with respect to all Defendants.

Having found as key facts that the Plaintiff’s failure to attend follow- up appointments as recommended and instructed prevented a timely referral to a nerve repair specialist for microneuroexploratory surgery within the purported one to three month window for Dr. Frankel or the outer limit of the purported three to six month window for Dr. Kim or the Practice to do so, the Court determined affirmatively that there was no genuine dispute of material fact that none of the three Defendants committed negligence as alleged for such a failure to so refer. Alternatively, it found that the Plaintiff committed contributory negligence by unjustifiably failing to attend follow- up appointments with all three Defendants as recommended, and that none of the Defendants committed negligence by failing to follow-up with a letter or communication for her to seek such a referral. Thus, the Plaintiff cannot succeed on her claims at trial and is barred from recovery as matter of law, and, accordingly, the Court grants Summary Judgment in favor of the Defendants. E Ms. Deane noted a timely appeal.

In an unreported opinion, the Court of Special Appeals reversed, finding that the trial court erred as a matter of law. Deane v. S. Md. Oral 12 & Maxillofacial Surgery, P.A., No. 0218, Sept. Term 2020, 2021 WL 3523939 (Aug. 11, 2021). The Court disagreed with the trial court that Dr. Kramer’s failure to review the notes of Drs. Frankel and Kim rendered his opinions unreliable.

Id. at ⁷. According to the Court, such failure would go to the weight of his testimony, not to its admissibility. Id. The Court also disagreed with the trial court’s interpretation that, pursuant to Meda, Dr. Kotikian’s opinions were inadmissible because they failed to meet the standard for inferences of negligence.

Id. at ⁹. Finally, the Court ruled that the court erred in determining that Ms. Deane was contributorily negligent. Id. at ¹⁰. The doctors petitioned this Court for a writ of certiorari, which we granted.

Frankel v. Deane, 476 Md. 416 (2021). They present three questions for our review, which we consolidated and re-phrased as follows:7 7 The questions as presented by petitioners were: 1. Did the CSA err by neither (1) applying the Rochkind [v. Stevenson, 471 Md. 1 (2020)] factors when reversing the trial court’s preclusion of expert testimony or (2) remanding the case to the circuit court to apply the Rochkind factors? 2. Did the CSA erroneously hold that the trial court abused its discretion by precluding expert testimony under Meda v. Brown, if the opinions and inferences were speculative unless the expert could reliably opine that the injury ordinarily would not occur without negligence? 3.

Did the CSA erroneously hold that the trial court abused its discretion by precluding expert testimony after finding that Respondent’s experts had applied unsound reasoning and methodology to conclude that bilateral nerve severing injuries occurred? 13 1. Did the Court of Special Appeals erroneously hold that the trial court abused its discretion by precluding the expert testimony of Respondents’ experts? 2. Did the Court of Special Appeals err by neither (1) applying the Rochkind factors when reversing the trial court’s preclusion of expert testimony or (2) remanding the case to the circuit court to apply the Rochkind factors? DISCUSSION To prevail in a medical malpractice negligence action, a plaintiff must prove four elements: “(1) the defendant’s duty based on an applicable standard of care, (2) a breach of that duty, (3) that the breach caused the injury claimed, and (4) damages.” Am.

Radiology Servs., LLC v. Reiss, 470 Md. 555, 579 (2020). “Because of the complex nature of medical malpractice cases, . . . [plaintiffs must present expert testimony] to establish breach of the standard of care and causation.” Stickley v. Chisholm, 136 Md. App. 305, 313 (2001) (citation omitted). Maryland Rule 2-501(f) provides that “[t]he court shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.” Thus, summary judgment is appropriate if the plaintiff fails to come forward with admissible expert testimony on standard of care, breach, and causation. See Rodriguez v. Clarke, 400 Md. 39, 72 (2007); Puppolo v. Adventist Healthcare, Inc., 215 Md. App. 517, 534 (2013). We review the trial court’s grant of summary judgment de novo.

Webb v. Giant of Md., LLC, 477 Md. 121, 347 (2021). A 14 To be admissible, expert testimony must satisfy the requirements of Maryland Rule 5-702, which provides: Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony. Medical negligence may be proven with both direct and circumstantial evidence.

Meda, 318 Md. at 428 . In Meda, this Court held that a prima facie case of medical negligence may be proven by “proof of circumstances from which its existence may be inferred[,]” provided that the inferences from such circumstances were drawn by experts “armed with their fund of knowledge[.]” Id. at 428 (citation omitted). The factual basis for an expert’s opinion can come from “facts obtained from the expert’s first-hand knowledge, facts obtained from the testimony of others, and facts related to an expert through the use of hypothetical questions.” Sippio v. State, 350 Md. 633, 653 (1998). In addition, experts are permitted to “express an opinion based upon facts assumed but not in evidence when the question is asked, if such facts are later proved in the case.” Mangione v. Snead, 173 Md. 33, 42 (1937).

This applies to disputed facts as well. As this Court explained, Under such circumstances, the proper way to submit a hypothetical question is to ask the witness to presume the truth of certain facts as if they were not the subject of dispute. These may still be contested in actuality but the 15 inquiry is proper as long as there is evidentiary support for the facts which the expert is told to assume the veracity of and evaluate in rendering his opinion. Of course, any assumption made must be grounded on a fair summation of the material facts in evidence and those material facts must be sufficient in scope for the witness to formulate a rational opinion.

In such a situation the jury is aware of the premise upon which the opinion is based and can determine whether that assumption was valid. If it is not, the opinion of the expert is disregarded. Kruszewski v. Holz, 265 Md. 434, 445 (1972). Admissibility rulings under Maryland Rule 5-702 are reviewed under an abuse of discretion standard.

A ruling under Rule 5-702 may be reversed on appeal if it is founded on an error of law or some serious mistake, or if the trial court clearly abused its discretion. Additionally, we will not affirm a decision within the discretion of the trial court if the judge acts in an arbitrary or capricious manner or beyond the letter or reason of the law. Rochkind , 471 Md. at 11 (cleaned up). Until this Court’s decision in Rochkind, Maryland adhered to the Frye-Reed standard for the admissibility of expert testimony based on scientific principles. 8 Id. at 4- 5.

Under Frye-Reed, “prior to the admission of expert testimony based on the application of novel scientific techniques, the party seeking to use the expert testimony must establish that the particular methodology is valid and reliable.” Clemons v. State, 392 Md. 339, 363 (2006). Over time, however, as Judge Adkins observed, the scope of the “general acceptance” standard, in practice although not expressly, has been expanded to include “testimony based on any scientific principle—new or old.” Savage v. State, 455 Md. 138 , 8 Frye-Reed refers to the seminal case of Frye v. State, 293 F. 1013 (D.C. 1923), which articulated a standard for admissibility of novel scientific expert testimony, and Reed v. State, 283 Md. 374 (1978), which adopted the Frye standard in Maryland. 16 180 (2017) (Adkins, J., concurring). In addition, Maryland Frye-Reed jurisprudence expanded the general acceptance test to “not only to evaluate scientific methods, but also to assess scientific conclusions.” Id. at 181 (Adkins, J., concurring). The standard of appellate review for Frye-Reed determinations is de novo.

Wilson v. State, 370 Md. 191 , 201 n.5 (2002). B Ms. Deane built her case on the inextricably linked testimony of two experts. The opinions of both experts rested on the assumption of certain disputed facts. For example, Dr. Kramer assumed the truth of the following facts: (1) Dr. Kim’s notes inaccurately reflected what Ms. Deane had reported to him; (2) Ms. Deane told Dr. Kim that she had experienced no improvement in her symptoms; and (3) Ms. Deane genuinely and truthfully answered Dr. Kramer’s questions and responded to his sensory tests to the best of her ability.

As set forth above, the record included testimony that supported each of these assumed facts. The circuit court, however, found fault with Dr. Kramer’s opinion, concluding that it was based primarily on his examination of Plaintiff almost two years after the fact, and on the Plaintiff’s shaky, uncertain self-reporting to him then in 2018 without him having reviewed the professionally detailed notes and records of Dr. Frankel’s and Dr. Kim’s treatments and examination of Plaintiff, which this Court found met Maryland’s Frye-Reed Standards of scientific, clinical, and analytical reliability as well as to be based on such requisite methodology as required therein. Because of his failure to review the notes and records of Drs. Frankel and Kim, the court found that Dr. Kramer’s conclusions “fail[ed] to meet, directly or inferentially, the 17 Maryland Frye-Reed, Meda, and Maryland Rule 5-702 standards of scientific, clinical, and analytical reliability as well as to be based on such requisite methodology as required therein.” The court did not explain, however, why it subjected the notes of Ms. Deane’s treating physicians to a Frye-Reed analysis.

The court also did not explain the basis on which it determined that those notes passed the Frye-Reed test or why Dr. Kim’s sensory examination passed the Frye-Reed test but Dr. Kramer’s sensory examination did not. The circuit court improperly took sides in a credibility contest between Drs. Frankel and Kim on one hand and Ms. Deane on the other hand. Dr. Frankel’s records indicate that Ms. Deane reported improvement of her symptoms—Ms. Deane denied reporting any improvement.

Dr. Frankel’s records regarding her missed follow-up appointment stated, “patient’s complaints getting better” and that she was “not coming back[.]” Ms. Deane, however, testified that during that time, she was having the “same issues” and that her “tongue . . . never restored any feeling.”9 9 The circuit court described Ms. Deane’s recollection of her post-op visits with Dr. Frankel as “sketchy.” When first asked about the follow-up visit with Dr. Frankel, Ms. Deane initially didn’t remember that visit or what was said during it. After further questioning, however, Ms. Deane’s memory was refreshed somewhat, and although she did not recall details of what either she or Dr. Frankel said during that visit, she was adamant that she did not report any improvement, as reflected in her testimony: Q: And you would not—that would include you do not have any recollection of whether or not you reported any improving to your numbness on the 19th? A: No. But I didn’t. 18 Dr. Kim’s notes from Ms. Deane’s appointment three months later likewise reflected that Ms. Deane had reported improvement in her symptoms, stating that she was getting better, still feeling some tingling and that only the right anterior portion of her tongue was numb. In contrast, Ms. Deane testified that she told Dr. Kim that both sides of her tongue were numb and that she reported pain, throbbing, and tingling.

Thus, the circuit court was confronted with medical records from Drs. Frankel and Kim that were disputed in multiple material respects by their patient. The conflicting evidence on these issues teed up a classic credibility contest for the jury—not the court— to resolve. By taking those factual issues away from the jury, the circuit court erred.

The circuit court also impermissibly gave petitioners the benefit of favorable inferences drawn from evidence susceptible to more than one interpretation. For example, the court stated that Dr. Kramer “admits in his deposition [that he] may have changed his opined conclusion as to the acts and omissions of Dr. Frankel, Dr. Kim, and the Practice **** Q: And now, --and then you said—you also specifically said you denied reporting any improvement to the symptoms? A: I did not report any improvement. Q: Sounds like now you have a pretty okay memory of that visit; is that fair?

A: I just know that I didn’t report any because there wasn’t any. Although Ms. Deane’s credibility will have to be determined by the factfinder at trial, for summary judgment purposes, the circuit court should have credited Ms. Deane with the benefit of the doubt, not the other way around. 19 being professionally negligent” if he had been provided with their notes. The “admission” by Dr. Kramer to which the court referred came in this exchange: Q: Okay. You have not reviewed any medical records of providers other than yourself in this matter?

A: No, I have not. Q: Have you reviewed the medical records of Casey Deane, specifically, Clay Kim’s neurosensory exam at three months postop? A: No. Q: Were you aware that such an exam exists? A: No. Q: Would that have been relevant to your opinions in this matter?

A: I don't know. Q: Okay. A: I suppose it depends on what was in there. Q: Would a neurosensory exam at three months generally be pertinent to your opinions on nerve injury in this matter?

A: Pending the outcome of that exam. Yes. Q: The results of that neurosensory exam at three months would be pertinent to the basis or concluding that Miss Deane does have a nerve injury; is that right? A: I’m not sure if I follow the way you’re phrasing the question.

Q: Sure. A: By example, however, if someone did an exam of her at three months and she had normal sensation, that would be quite pertinent to the outcome. Q: And why would that be quite pertinent? 20 A: Because she didn’t have normal sensation when I saw her nearly two years after the injury. Q: When you say she didn’t have normal sensation, what you’re saying is she didn’t report feeling your test, so she did not report -- A: That is correct.

Q: Okay. She did not report normal sensation to you? A: That is correct. It seems clear that although Dr. Kramer said that his opinions may have changed had he been provided with Dr. Frankel’s notes and Dr. Kim’s notes, he qualified that statement by saying that it depended on what the notes said.

When pressed, Dr. Kramer gave an example of how the notes could have made a difference in his opinion—if the notes reflected that the patient reported normal sensation at three months. But that was just an example untethered to reality—the notes didn’t say Ms. Deane reported normal sensation after three months. Dr. Kramer’s testimony on that issue was, at best from petitioners’ standpoint, susceptible to more than one interpretation. In ruling on a summary judgment motion, the court improperly adopted the interpretation least favorable to Ms. Deane.

See RDC Melanie Drive, LLC v. Eppard, 474 Md. 547, 564 (2021) (citation omitted) (“Upon review, this Court must consider the facts in a light most favorable to the non-moving parties, and ‘if those facts are susceptible to inferences supporting the position of the party opposing summary judgment, then a grant summary judgment is improper.’”). The circuit court also erred in finding that the only reliable way for diagnosing the nature and extent of Ms. Deane’s injury was through exploratory surgery, which she did 21 not have. Dr. Kramer testified that when the lingual nerve is injured, a patient with the same symptoms as Ms. Deane may very well experience improvement over the ensuing months. He further testified that his diagnosis of a severed lingual nerve was made possible in Ms. Deane’s case only because he examined her more than two years after the surgery: Q: So how do you determine what injury she has?

A: Based on her exam at that moment and the time frame. And I may have referred a moment ago to the dependability with which lingual nerves heal, for various reasons; but after two-plus years, the likelihood goes down so that had there been an axonotmesis or a neurotmesis, I may have anticipated greater improvement at two years, when I saw her. Q: