Rubin v. Weissman

BISHOP, Judge. This is an appeal by Ethel Censor Rubin and her husband, Alfred Rubin, from judgments entered after jury verdicts in the Circuit Court for Baltimore County. The original action filed by appellants was based on personal injury sustained by Mrs. Rubin as a result of an automobile accident that occurred on July 6, 1978, while she was a passenger in a taxicab. In their amended declaration filed against Bernard Weiss-man, Valley Cab Association, Inc., Valley Cab, Inc., and Cornell Thomas, appellants charged in Count I — negligence; 1 Count II — breach of contract; Count III — negligence by common carrier; Count IV — loss of consortium.

A fifth count on behalf of the four minor children of the parties asserted claims growing out of injuries sustained by Mrs. Rubin. The court disposed of this count at pretrial and it is not an issue before us. The appellees are the owner and operator of the taxicab, Bernard Weissman, and Valley Cab, Inc., (VCI), both members of what was then the unincorporated Valley Cab Association. The jury returned a verdict in favor of Mrs. Rubin against Bernard Weissman and assessed damages in the amount of $2,500.00.

On all other counts of the declaration, which we will explain later, the jury returned verdicts for the defendants. This appeal involves only court rulings ³⁹⁷ and conduct with reference to Weissman and VCI, and not with reference to Cornell Thomas and Valley Cab Association, Inc. Facts On July 6, 1978, Mrs. Rubin placed a telephone call to number 486-4000 to request a taxicab. In the yellow pages of the local telephone directory, this number is listed to Valley Cab, Inc., Pikesville Taxicab, Owings Mills Taxicab and Reisterstown Taxicab. Mrs. Rubin’s request was radio dispatched and appellee Weissman responded.

Weissman transported Mrs. Rubin from her home on Fallstaff Road located in northwest Baltimore City to Pennsylvania Station in downtown Baltimore. Weissman drove north on Charles Street, intending to drop Mrs. Rubin off in front of the west entrance to the station. Weissman went through the intersection of Pennsylvania Station and Charles Street on a red light. The cab was struck on the right rear side by a westbound car driven by Cornell Renaldo Thomas, one of the defendants below.

As a result of the accident, Mrs. Rubin received a bruise on her leg and a cut over her right eyebrow. She was taken by ambulance to the Emergency Room at the University of Maryland Hospital, treated and released. Within one week after the accident Mrs. Rubin’s family doctor examined her and referred her to a neurologist, who confirmed what the family doctor suspected, that Mrs. Rubin had multiple sclerosis. Mrs. Rubin immediately began a nationwide odyssey to find a physician who would cure her.

In Count I of the amended declaration Mrs. Rubin specifically alleged that the symptomology of the multiple sclerosis had “been greatly aggravated and triggered in its present patent, persistent, and pervasive state and degree by the collision____” It is this allegation which is at the heart of this appeal. ³⁹⁸ Prior to trial, defense counsel requested by interrogatory the names of all physicians who, and institutions which had examined or treated the plaintiff for the injuries sustained as a result of the occurrence and, with respect to each physician or institution, the diagnosis, prognosis, date of examination and nature of treatment. In response, appellant supplied information concerning 18 physicians or institutions. In answer to a question concerning experts to be called at trial, appellant listed only Dr. Maurice Sislen and Dr. Howard Silby. On September 24, 1981, defendants filed a notice of their intentions to depose several of the physicians listed by appellants as having been consulted, but not listed as experts expected to testify at trial.

On October 15, 1981, appellants filed a motion for protective order, asking that the court limit the scope of the depositions of Neal Aronson, M.D.; Frank Schuster, M.D.; Howard Weiss, M.D.; and Norman Oliver, M.D. “to the specific facts and diagnostic conclusions attendant to their treatment of the said plaintiff and specifically excluding any inquiry into or testimony concerning any matters or facts which either were not known to the respective physicians at the time of treatment or did not play a part in the course of treatment undertaken____” Specifically, appellants did not want defense counsel soliciting the physicians’ expert opinions regarding the legal issues involved. On November 19, 1981, Judge Paul Alpert issued an order allowing each defendant to depose the physicians as follows: ' ... [TJhat he further be permitted to interrogate said doctors with respect to their examinations, treatment rendered, diagnosis, prognosis and opinions concerning causal connection provided, however, that such interrogation will not be permitted regarding any opinions held by doctors which were developed in response to solicitation by counsel, unless the same were held by the doctors prior to any such solicitation. ³⁹⁹ Following the taking of the depositions, defendants moved to designate the physicians as expert witnesses for the defense. Appellants’ motion to strike the designation was denied. Trial commenced on March 7, 1983, in the Circuit Court for Baltimore County, before Judge Walter Haile and a jury.

At the close of the plaintiffs’ case, defense motion for a directed verdict was denied. At the close of all the evidence, defendants again moved for directed verdict as to all counts. The trial court granted the motion as to Count II, breach of contract, and Count III, negligence by common carrier. Count I, negligence, and Count IV, loss of consortium, were submitted to the jury.

Following deliberation, the jury found for appellant, Ethel Censor Rubin, under Count I against appellee Bernard Weissman and assessed damages in the amount of $2,500. As to all other defendants under Count I and all defendants under Count IV, the jury found no liability. This appeal is from judgments entered in accordance with those verdicts. Appellants raise four issues: I. Whether the lower court erred in permitting discovery of and use of expert testimony of two physicians who had treated appellant.

II

Whether the trial court erred in granting appellees’ motions for directed verdict as to Counts II and III of appellants’ amended declaration.

III

Whether the trial court erred in failing to instruct the jury regarding liability of members of an unincorporated association.

IV

Whether there is sufficient evidence in the record of misconduct and partiality on the part of the trial judge. I. Discovery Appellant Mrs. Rubin’s first contention is that the lower court, both Judge Alpert and Judge Haile, erred in ⁴⁰⁰ allowing discovery concerning the expert testimony of Drs. Howard D. Weiss and Neal T. Aronson. Both of these doctors had been consulted by appellant for treatment but were not designated to testify as experts at trial.

Appellant bases this contention on 1) Maryland Rule 400 and 2) fundamental fairness. Although appellant relies on Rule 400 d, which relates to “documents and tangible things prepared in anticipation of litigation or for trial by or for another party,” the more instructive section is Rule 400 c which provides as follows: Unless otherwise ordered by the court parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, (i) whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, and (ii) including the existence, description, nature, custody, condition and location of any books, documents or other tangible things, and (iii) including any information of the witness or party, however obtained, as to the identity and location of persons having knowledge of any discoverable matter, and (iv) whether or not any of such matter is already known to or otherwise obtainable by the party seeking discovery, and (v) whether or not the information will be inadmissible at the trial, if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. The discovery rules are broad and comprehensive in scope, and were deliberately designed to be so. Baltimore Transit Co. v. Mezzanotti, 227 Md. 8, 13 , 174 A.2d 768 (1961).

The purpose of the discovery rules is to assure that no party goes to trial “in a confused or muddled state of mind” concerning the facts that gave rise to the litigation. Klein v. Weiss, 284 Md. 36, 55 , 395 A.2d 126 (1978). ⁴⁰¹ If all of the parties have knowledge of all of the relevant, pertinent and non-privileged facts, or the knowledge of the existence or whereabouts of such facts, the parties should be able properly to prepare their claims and defenses, thereby advancing the sound and expeditious administration of justice. In order to accomplish the above purposes, the discovery rules are to be liberally construed. Baltimore Transit Co., supra, 227 Md. at 13 , 174 A.2d 768 .

The trial judges, who are primarily called upon to administer the discovery rules, “are vested with reasonable, sound discretion in applying them, which discretion will not be disturbed in the absence of a showing of its abuse.” Kelch v. Mass Transit Administration, 287 Md. 223, 229 , 411 A.2d 449 (1980), quoting Baltimore Transit Company v. Mezzanotti, supra. It is clear from the language in Maryland Rule 400 c and the above case law, that the information sought in the instant case was fully discoverable unless it fell into one of the pertinent exceptions: (1) privileged information or (2) attorney work product, material prepared in anticipation of litigation. 2 Privileged Information: Communications made to a physician in his professional capacity by a patient are neither privileged under the common law of Maryland, nor have they been made so by statute. Robinson v. State, 249 Md. 200, 221 , 238 A.2d 875 (1968); O’Brien v. State, 126 Md. 270, 284 , 94 A. 1034 (1916); Stevens v. Barnhart, 45 Md.App. 289, 295-296 , 412 A.2d 1292 (1980); Franklin v. State, 8 Md.App. 134, 141 , 258 A.2d 767 (1969). Courts and Judicial Proceedings Article § 9-109 establishes a limited ⁴⁰² privilege for patient-psychiatrist and patient-psychologist communications.

As there is no common law patient-physician privilege, “[i]t exists by legislative grant____” Bremer v. State, 18 Md.App. 291, 334 , 307 A.2d 503 (1973). C & J Article 9 contains no such privilege, therefore appellant cannot rely on this ground. Attorney Work Product: Discovery in civil cases, as promulgated by now Maryland Rule 400, does not go to that which “is in essence the work product of the attorney accumulated in the preparation of the case.” Wagonheim v. Maryland State Board of Censors, 255 Md. 297, 309 , 258 A.2d 240 (1969). Whether a document or other tangible thing was prepared “in anticipation of litigation or for trial” is a question of fact which, if in dispute, is to be determined by the trial judge following