Mitchell v. Montgomery County

88 Md. App. 542 (1991) 596 A.2d 93 JOHNNY ALAN MITCHELL v. MONTGOMERY COUNTY, MARYLAND. No. 1722, September Term, 1990. Court of Special Appeals of Maryland. October 2, 1991.

Richard D. Paugh, Rockville, for appellant. Tasha Panarites, Associate County Atty. (Joyce R. Stern, County Atty. and Joann C. Robertson, Sr. Asst. County Atty., on the brief), Rockville, for appellee.

Argued before WILNER, C.J., and ROSALYN B. BELL and HARRELL, JJ. ROSALYN B. BELL, Judge. This case arose out of an unfortunate occurrence on November 28, 1986, when Johnny Mitchell, appellant in this case, was struck by a Montgomery County Ride-On Bus while walking along Route 355 in Gaithersburg near the intersection of Route 355 and Appledowre Way. As a result of this accident, Mitchell suffered serious injuries, including a fractured skull.

He filed suit against Montgomery County, appellee in this case, alleging negligence on the part of the bus driver. Following a trial in Montgomery County Circuit Court, a jury returned a verdict for the County. In this appeal, Mitchell contends that the trial judge erred: — in admitting allegedly expert opinion testimony by Robert Merryman, a witness for the County, when the County failed to either designate Merryman as an expert in its responses to interrogatories or offer and qualify him as an expert witness at trial; — in admitting evidence purportedly showing that Mitchell was under the influence of alcohol, cocaine and PCP at the time of the accident; — in admitting, for impeachment purposes, evidence of Mitchell's 1982 conviction for theft of a golf cart; — in not granting Mitchell's motion for a directed verdict at the close of the evidence in the case; and — in his instructions to the jury on intoxication, contributory negligence and several other issues. Because we agree (1) that Merryman was not designated or offered and qualified as an expert, although his testimony was in significant part expert opinion testimony on an issue vital to the outcome of the case, (2) that the probative value of Dr. Caplan's testimony on the cocaine and PCP tests was outweighed by the potential for prejudice to Mitchell, and (3) that the drug paraphernalia found on Mitchell was improperly admitted, we will reverse and remand for a new trial.

For the guidance of the trial judge, in the event this case is tried again, we will also address several of Mitchell's other arguments which are likely to arise on retrial. THE FACTS On November 28, 1986 Mitchell was walking north on the east side of Route 355 in Gaithersburg at about 5:30 p.m. He was wearing a light or white striped, blue flannel shirt. The area where he was walking was not well illuminated, as there were no street lights in the immediate area.

The only lighting in the area was at the Pizza King restaurant on the west side of Route 355, which did not project across the road to any great degree. Mitchell had come out of an apartment complex south of Appledowre Way and was hitchhiking north of that intersection. It was later revealed that Mitchell had a blood alcohol level of 0.08 and he tested positive for both cocaine and PCP in his urine. He stated that he saw a Montgomery County Ride-On Bus proceeding north on Route 355.

The bus stopped at a bus stop approximately 15-20 feet south of where Mitchell was standing. Mitchell was standing on the paved portion of the road approximately three to four feet from the curb. About 14 feet from the curb was a single, solid white line, on the other side of which was a northbound travel lane. In the center of the road was a double yellow line, and on the southbound side of the road were two lanes marked similarly to the northbound lanes.

At all pertinent times, the bus had its low beam lights on. As the bus pulled away from the bus stop, the right front portion of the bus struck Mitchell, knocking him to the ground and causing severe injuries. The bus driver stated he did not see Mitchell until just prior to the impact and could not avoid striking Mitchell, inferring Mitchell had darted in front of the bus. MERRYMAN'S TESTIMONY Mitchell argues that testimony given by County witness Robert Merryman was, in significant part, expert testimony, even though Merryman was never (1) listed as an expert by the County in its responses to interrogatories or calendar call statement, or (2) properly proffered or qualified as an expert witness at trial.

Thus, Mitchell contends, the trial judge's admission of that testimony was error. We agree. A central issue at trial was Mitchell's alleged contributory negligence. The County's theory was that, as the result of his being under the influence of alcohol, cocaine and PCP, Mitchell's faculties were so impaired that he negligently walked in, or darted into, what the County contended was a travel lane, thus barring any recovery.

Mitchell, on the other hand, contended that he was standing in a shoulder [1] lane and thus was not contributorily negligent. To establish his claim that the lane in which he was standing was a shoulder, Mitchell called two expert witnesses, Bruce Enz and Andrew Ramisch. They testified that the presence of the solid white line dividing the two northbound lanes of Route 355 indicated that the right lane was a shoulder. Both of these witnesses were properly qualified as experts.

In support of its contrary theory that the lane in which Mitchell was standing was a travel lane, the County called Theodore Hunt, a supervisor for the County Ride-On System, who testified that Route 355 northbound is a two lane road at the point where Mitchell was struck. His characterization, however, was undercut by a diagram prepared by Hunt at the time of the accident, on which he designated the right lane of northbound Route 355 as a "shoulder." At trial, Hunt sought to characterize this designation as a mistake on his part. The County then proffered the testimony of Merryman of the Maryland Department of Transportation as a "fact witness to describe the road." Counsel for Mitchell objected to this testimony, contending that Merryman would offer expert opinion testimony, which was improper because Merryman was never designated as an expert in the County's answers to interrogatories. [2] The trial judge accepted the County's representation that Merryman was a fact witness offered to describe the roadway; thus, Merryman was never qualified as an expert. Almost as soon as Merryman's testimony began, however, Mitchell again objected that Merryman was testifying as an expert.

Although he cautioned the County not to elicit expert opinion from Merryman, the trial judge overruled Mitchell's objection. Merryman then testified that Route 355 was a "major arterial highway" and "a limited access highway" and its right-hand lane was an "acceleration, deceleration lane for ingress." During this series of descriptions by Merryman, counsel for Mitchell moved to strike this testimony and moved for mistrial. Despite his recognition that Merryman's testimony was expert opinion "in part" and despite his admonitions to counsel for the County not to elicit expert opinion testimony, the trial judge overruled Mitchell's objections. Nor did he allow counsel for Mitchell to voir dire Merryman outside the presence of the jury, as counsel suggested.

This failure to take any steps to alleviate the harm created by the County's failure to supplement its responses to interrogatories, and either limit Merryman's testimony to facts; or properly qualify him as an expert witness, despite continuing objections from Mitchell, was error. Ordinarily, a trial judge is vested with discretion regarding the admissibility of an expert's opinion. Simmons v. State, 313 Md. 33, 43 , 542 A.2d 1258 (1988); Globe Sec. Sys. v. Sterling, 79 Md. App. 303, 308 , 556 A.2d 731 (1989). While the trial judge's rulings ordinarily will not be disturbed on appeal absent an abuse of discretion, Globe, 79 Md. App. at 308 , 556 A.2d 731 ; Waine v. State, 37 Md. App. 222, 246 , 377 A.2d 509 (1977), in this case the witness was never qualified as an expert.

Initially, the trial judge quite properly accepted the County's proffer that Merryman was a fact witness. [3] Once Merryman began to testify, however, it quickly became apparent that he was testifying, in significant part, to matters which constituted expert opinion. [4] In this case, Merryman was never designated as an expert witness by the County in its answers to interrogatories requesting such designation. Mitchell's interrogatories were properly made under Rule 2-421 and the County initially responded in an appropriate manner, listing several expert witnesses. The County, however, also had a continuing obligation to supplement its responses "promptly," Rule 2-401(c); in fact, the County did supplement its response about experts, adding an additional expert witness approximately one month prior to trial. Merryman, however, was not listed in this or any other response filed by the County.

The duty to supplement answers to interrogatories in this respect is clear: "Answers to interrogatories are useful to preclude use of information not disclosed in them. If a party discloses one expert in answers to interrogatories and tries to use another at trial without having supplemented under Rule 2-401(c), that party will probably not be entitled to use the undisclosed witness unless the court makes some other adjustment in fairness to the objecting party." Niemeyer and Richard, Maryland Rules Commentary 228 (1984). No such "adjustment" was made by the trial judge in this case. While he need not have excluded Merryman's testimony altogether, [5] once the County had, in fact, elicited expert testimony from Merryman, the very least the trial judge should have done was make some "adjustment" in order to provide Mitchell's counsel with an opportunity to examine Merryman's qualifications to offer testimony in the form of expert opinion.

See Baltimore Transit Co. v. Mezzanotti, 227 Md. 8, 13 , 174 A.2d 768 (1961) (fundamental objective of discovery rules is to avoid parties going to trial in a "confused and muddled state of mind"). More importantly, Merryman was never qualified as an expert witness at trial, primarily because the County proffered him as a fact witness. "Before a witness may be asked a question which calls for expert testimony, the witness' qualifications must be proved and the witness proffered to the court and accepted by it as an expert in the relevant field." McLain, Maryland Evidence § 702.2 (1987). Furthermore, and despite the protestations of appellee, both here and at trial, we hold that key portions of Merryman's testimony were not based, as proffered by the County, on his observations of the road.

"The rule in Maryland is that a lay witness is not qualified to express an opinion about matters which are either within the scope of common knowledge and experience of the jury or which are peculiarly within the specialized knowledge of experts." King v. State, 36 Md. App. 124, 135 , 373 A.2d 292 , cert. denied 281 Md. 740 (1977). [6] Terms such as "major arterial highway," "limited access," and "acceleration, deceleration lane for ingress" are, by their very nature, technical terms about which the average layman cannot testify based on his or her own perceptions and experiences. Merryman, by his own testimony, based his conclusions about the "proper" use of the road on his "25 years experience with the Maryland DOT." Clearly, Merryman was not, as proffered by the County and asserted on appeal, solely a "fact witness to describe this road." Once the trial judge recognized that Merryman had, in fact, testified as to an expert opinion, he should have insisted that the County establish Merryman's professional qualifications. [7] The County contends that any error in admission of Merryman's testimony was harmless. We do not agree. "[T]he appellate courts of this State will not reverse a lower court judgment for harmless error: the complaining party must show prejudice as well as error.

" Harris v. Harris, 310 Md. 310, 319 , 529 A.2d 356 (1987) (emphasis in original). Prejudice results from error that affects the outcome of the case. State Roads Comm'n v. Kuenne, 240 Md. 232, 235 , 213 A.2d 567 (1965). In this case, Merryman's testimony was central to both Mitchell's theory of primary negligence and the County's affirmative defense that Mitchell was contributorily negligent.

If Mitchell was standing in a "shoulder" lane, then the bus driver had a greater duty of care to watch out for pedestrians than Mitchell did for moving vehicles. If, on the other hand, Mitchell was standing in a "travel" lane, this constituted contributory negligence, thus barring Mitchell from any recovery. Merryman's testimony thus simultaneously both damaged Mitchell's theory of the case and bolstered the County's affirmative defense of contributory negligence. The context in which Merryman testified supports this view of the case.

As stated earlier, prior to Merryman's testimony, two of Mitchell's expert witnesses (Enz and Ramisch) and one of the County's lay witnesses (Hunt), all testified that they believed that Mitchell had been standing in a shoulder rather than a travel lane. Merryman's testimony, immediately following these three witnesses, was obviously intended to rebut this notion in the minds of the jury. This error was not harmless. INTOXICATION AND DRUG EVIDENCE At trial, the County introduced into evidence hospital reports which the County claimed showed that Mitchell was under the influence of alcohol, cocaine and PCP.

To explain the effects of these drugs on Mitchell, the County introduced the testimony of Dr. Yale Caplan, an expert witness. Finally, the County also introduced into evidence a "bong," or water pipe, found on Mitchell following the accident. All of this evidence was offered to bolster the County's contention that Mitchell's actions constituted contributory negligence. On appeal, Mitchell contends that the trial judge's admission of this evidence was error.

His argument is on two levels: a general assault on the relevance of any evidence of intoxication, and specific attacks on different aspects of the County's evidence. While we do not agree with his general argument, we do agree that Dr. Caplan's testimony about the positive cocaine and PCP tests, the records of those tests and the bong should have been excluded from evidence. Mitchell first contends that the evidence of his intoxication and drug use was irrelevant as a matter of law. We do not agree.

Properly characterized, the legal issue here is not intoxication itself, but intoxication as a factor that may have led to contributory negligence: "To be contributorily negligent, a plaintiff must either perform or fail to perform an act which is a proximate cause of the particular injury of which he complains. His conduct is judged by a norm of ordinary care and the failure by a plaintiff to meet this standard constitutes contributory negligence barring his recovery." Schwarz v. Hathaway, 82 Md. App. 87, 90 , 570 A.2d 348 (1990), quoting Hooper v. Mougin, 263 Md. 630, 633 , 284 A.2d 236 (1971) (emphasis added). Intoxication, by itself, is not sufficient, as a matter of law, to constitute the act necessary to show such causation. Quinn Freight Lines v. Woods, 266 Md. 381, 389 , 292 A.2d 669 (1972).

While evidence of intoxication does not, as a matter of law, constitute negligence per se, such evidence may be admissible to help prove negligence. Evidence of intoxication frequently is part of a causal chain which, if believed by the trier of fact, might well result in contributory negligence. This is not to say that evidence that a plaintiff or defendant in a negligence case is intoxicated is automatically admissible regardless of the circumstances of the case. As counsel for Mitchell pointed out repeatedly at trial and as he contends on appeal, [8] what is at issue is not intoxication itself, but intoxication as leading to some action or failure to act which is negligent. [9] What is required, therefore, in order for evidence of intoxication to be admissible is for the proponent of the evidence to demonstrate some causal connection between the allegedly intoxicated state of the person in question and his or her conduct or behavior. [10] Contrary to Mitchell's counsel's assertions, the evidence in this case more than adequately supported an inference that Mitchell's intoxicated state may have contributed to his being in a place where he should not have been ( e.g., what the County sought to establish as a travel lane of Route 355), or that it caused him to walk or dart into the path of the bus.

If the evidence of intoxication made it more likely that he committed the acts suggested and thus was contributorily negligent, such evidence is both probative and relevant. — Dr. Caplan's Testimony — In addition to Mitchell's general objections to the admission of evidence showing that he tested positive for alcohol, cocaine and PCP, he also objected specifically to the testimony of Dr. Yale Caplan, an expert witness called by the County. Mitchell argues that, because Dr. Caplan was not able to state, with a reasonable degree of medical certainty, whether Mitchell was in fact under the influence of alcohol, cocaine and/or PCP at the time of the accident, his testimony should have been excluded as irrelevant and prejudicial. We agree with Mitchell that the cocaine and PCP evidence should have been excluded. We hold, however, that Dr. Caplan's testimony with respect to Mitchell's alcohol intoxication established sufficient relevance to the issue of contributory negligence and therefore was properly admitted.

At trial, Dr. Caplan, the Chief Toxicologist for the State Medical Examiners Office, testified for the County. He was qualified as an expert in forensic toxicology. Although Dr. Caplan never actually examined Mitchell, he reviewed the medical records of Suburban Hospital, where the alcohol and drug tests were performed. When asked what effect Mitchell's blood alcohol level would have, he testified that a 0.08 blood alcohol level "would have significant effects on all individuals.

Therefore, if you pick any one individual you would expect effects in that individual." He further testified that, because Mitchell's blood alcohol test was performed about one hour after the accident, his blood alcohol level at the time of the accident was likely between 0.09 and 0.10. As a result, it was Dr. Caplan's opinion that Mitchell was "significantly intoxicated" at the time of the accident. While the evidence relating to impairment by alcohol was not strong, Dr. Caplan theorized that because Mitchell's blood alcohol level was 0.08 at the time of the test, it likely was between 0.09 and 0.10 at the time of the accident. He further opined that Mitchell was "significantly intoxicated." Dr. Caplan described the effects of such intoxication as including problems with coordination, length of reaction time, blurred and double vision, lack of peripheral and side visions, problems with depth perception, and lack of ability to "generally comprehend and make decisions and perform tasks." Because at least some possibility of a causal link between Mitchell's blood alcohol level and his actions was thus established by Dr. Caplan's testimony, this testimony was properly admitted.

The same cannot be said of Dr. Caplan's testimony about the positive cocaine and PCP tests. With respect to Mitchell's cocaine test results, Dr. Caplan stated that, although the effects of cocaine usually last less than an hour, it can remain in the urine for up to three days. He acknowledged that it was "possible" that Mitchell had used cocaine up to three days before the accident and thus was not under the influence of cocaine at the time of the accident. When the issue of PCP was raised, Dr. Caplan testified that, although the effects of PCP last no more than three or four hours, it can remain in the urine for up to a week.

As with the cocaine, Dr. Caplan stated that it was "possible" that Mitchell used PCP up to one week prior to the accident, and thus may not have been under the influence of PCP when the accident occurred. He also testified that latent, or "flashback," effects of PCP may sometimes occur days or even weeks after an initial dose. He did not say, however, what the probability of such flashback effects is, or whether Mitchell himself was likely to experience them. Most importantly, Dr. Caplan was unable to state, with a reasonable degree of medical certainty, whether Mitchell was under the influence of PCP at the time of the accident. [11] In light of this testimony, both Dr. Caplan's testimony and the evidence of the positive cocaine and PCP tests themselves should have been excluded. [12] To be material, and thus admissible, evidence must first be relevant; that is, it must tend to establish a proposition that has legal significance in the case.

Paige v. Manuzak, 57 Md. App. 621, 632 , 471 A.2d 758 , cert. denied 300 Md. 154 , 476 A.2d 722 (1984); Huber v. State, 2 Md. App. 245, 261-262 , 234 A.2d 264 (1967). In determining the admissibility of evidence, the test "is whether the probativeness of the evidence outweighs its potential for prejudice." Troja v. Black & Decker Mfg. Co., 62 Md. App. 101, 114 , 488 A.2d 516 , cert. denied 303 Md. 471 , 494 A.2d 939 (1985). In this case, Dr. Caplan never testified that it was likely, probable or even possible that Mitchell was under the influence of cocaine or PCP at the time of the accident.

The only certain testimony that he offered was what the effects of these drugs would have been on someone who had in fact used them. As such, his testimony in this respect had little or no probative value as to the critical question: was Mitchell impaired to such a degree that his actions constituted contributory negligence? Dr. Caplan could not state that Mitchell was impaired by cocaine or PCP. Thus, whatever marginal probative value his testimony with respect to these drugs might have had was more than outweighed by the substantial prejudice resulting from the jury's having heard that Mitchell had at some point used