Schneider v. Little

BERGER, J. This case arises out of the tragic paraplegia of Victoria Little (“Little”) as a result of a surgical procedure that had various complications. Little brought suit for medical malpractice and a jury trial was held in the Circuit Court for Harford County. The jury returned a verdict in favor of Little against defendants Dr. Roger Schneider (“Schneider”), Dr. Mark Gonze (“Gonze”), and Vascular Surgery Associates, LLC, and judgment was entered for $2,874,398.00. The jury ⁴²³ returned a verdict in favor of defendants Dr. Michael Eves and Northern Chesapeake Anesthesia Associates.

Schneider, Gonze, and Vascular Surgery Associates, LLC, filed a motion for a new trial, which the circuit court denied. This timely appeal followed. 1 Schneider presents four issues for our review, which we have rephrased slightly as follows: I. Whether the trial court erred by prohibiting the introduction into evidence of a 2007 CAT scan.

II

Whether the trial court erred by allowing the plaintiff to introduce evidence of defendant physician’s lack of board certification.

III

Whether the trial court abused its discretion by permitting the plaintiffs expert, Thomas Dodds, M.D., to testify on the issue of causation.

IV

Whether the trial court erred in concluding that the plaintiff had met her burden of proving causation. For the reasons set forth below, we find the trial court erred with respect to the CAT scan and board certification issues, and accordingly, we reverse the judgment of the Circuit Court for Harford County and remand for a new trial. 2 FACTUAL AND PROCEDURAL BACKGROUND On July 16, 2007, Victoria Little went to the hospital for aortobifemoral bypass surgery. The aorta is the largest artery in the body, and the purpose of aortobifemoral bypass surgery is to repair a blocked aorta. The surgery is performed on the abdominal aorta below the renal arteries by using a graft to connect the aorta to the femoral artery, thereby bypassing the blocked portion of the aorta.

The place where the graft and the artery are connected is referred to as ⁴²⁴ an anastomosis, and an anastomosis can be performed end-to-end or end-to-side. 3 Here, the surgeons, Schneider and Gonze, had discussed whether to perform an end-to-end or end-to-side anastomosis and determined that it was appropriate to perform an end-to-end bypass because it is generally the preferred method. 4 A surgeon determines the appropriate size graft based upon visual inspection when the aorta is exposed by comparing the size of the aorta to the size of the graft he intends to use. During an aortobifemoral bypass, a clamp is placed on the aorta below the renal arteries. Thereafter, the aorta is cut and an endarterectomy, a surgical procedure by which plaque is removed from the wall of an artery that has become narrowed or blocked, is performed. The surgeon then selects an appropriately sized graft and sutures it to the aorta.

During the surgery, Schneider and Gonze selected a 16 x 8 mm graft as the appropriate size for the aortobifemoral bypass. Schneider and Gonze were unable to complete the aortobifemoral bypass as originally planned and converted to an axillobifemoral bypass. Schneider and Gonze testified that they were unable to complete the aortobifemoral bypass due to the severely diseased condition of Little’s aorta. They stated that the aorta was extremely hard as a result of calcification, and that they had to remove significant portions of the lining of the aorta during the endarterectomy. ⁴²⁵ Schneider and Gonze testified that the remaining portion of Little’s aorta, after the endarterectomy, was very thin and brittle, and as a result, it was unable to hold sutures.

They testified that they attempted to sew the graft to the aorta, but the aorta would not hold the sutures due to its diseased state. Schneider and Gonze, therefore, determined it was appropriate to convert to an axillobifemoral bypass. In an axillobifemoral bypass, the aorta is oversewn and a graft is inserted between the axillary artery and the femoral arteries. Schneider and Gonze successfully completed the axillobifemoral bypass.

Little suffered unexpected complications as a result of the surgery. During the surgery, she lost 5100 ccs of blood, which represented approximately her entire blood volume. 5 After the surgery, Little suffered temporary injuries to the kidneys, liver, heart, and lungs, and permanent injury to her spinal cord. Little is now permanently paralyzed from the waist down and has little bowel and bladder control. Little filed suit, and the trial in the instant case commenced on April 26, 2007.

The cause of Little’s injuries was disputed at trial and remains in dispute. At trial, Little argued that her injuries were caused by low blood pressure caused by excessive blood loss during the surgery, and that the excessive blood loss was caused by a mismatch between the size of the graft and the size of her aorta. Specifically, Little argued that Schneider and Gonze breached the standard of care by attempting to sew a 16 x 9 mm graft to a 7-8 mm aorta. 6 Little argued that this size disparity required the surgery to be performed using an end-to-side anastomosis, or alternatively, a smaller graft ⁴²⁶ was required for an end-to-end anastomosis. In support of this argument, Little pointed to an operative note dictated by-Schneider in which he described Little’s aorta as “extremely diminutive measuring 7 to 8 mm in maximal diameter.” Little also relied on expert testimony by Dr. Preston Flanigan (“Flanigan”), a vascular surgeon who testified, inter alia, as to the size of Little’s aorta.

Flanigan testified that, based upon an angiogram he had examined, Little’s aorta was approximately 8mm. 7 Schneider, on the other hand, argued at trial that there was no size mismatch between the size of the graft and the size of Little’s aorta. Schneider further argued at trial that Little’s injuries were caused by a rare but recognized complication caused by the clamping of the aorta during aortobifemoral bypass surgery. Schneider argued that Little’s aorta was actually 14-15 mm in diameter (a size for which all experts agreed that the use of a 16 x 8 mm graft would have been appropriate) and that the operative note describing the aorta as 7-8 mm was an error. Schneider testified that he dictated an operative note immediately after the surgery, but that he was notified fifteen days later that the original operative note had been lost.

Schneider testified that at that time, he dictated a replacement operative note, in which he mistakenly identified the aorta as 7-8 mm. Schneider stated that the 7-8 mm estimate was actually an estimate of the internal open area of the aorta and not the total diameter of the aorta. Regarding the cause of Little’s injuries, Schneider argued that Little’s paralysis was due to the clamping of the aorta. ⁴²⁷ When the aorta is clamped during surgery, the clamping can interfere with blood flow to the artery of Adamkiewicz, which supplies blood to the spinal cord. Paralysis due to clamping of and interference with the artery of Adamkiewicz is a recognized complication that is known to occur in approximately one tenth of one percent of aortobifemoral bypass surgeries.

Schneider argued that injury to the artery of Adamkiewicz, caused by clamping, is what caused Little’s spinal cord injury and related paralysis. A significant issue that arose at trial and is now at issue in this appeal is the admissibility of a January 2007 CAT scan. The trial court did not allow Schneider to introduce Little’s 2007 CAT scan, which he argued would have established the size of Little’s aorta as 14-15 mm in diameter. Relevant facts regarding the exclusion of the CAT scan are discussed, infra.

Two other significant issues that arose at trial and are also at issue in this appeal involve the admissibility of evidence of Schneider’s lack of board certification and the appropriateness of the trial court’s decision to allow Dr. Thomas Dodds, an anesthesiologist, to testify on the issue of causation. Relevant facts related to each of these issues are discussed, infra. The jury returned a verdict against Schneider, Gonze, and Vascular Surgery Associates, awarding damages in the total amount of $3,557,398. The jury returned a verdict in favor of co-defendants anesthesiologist Michael Eves and Northern Chesapeake Anesthesia Associates, P.A. The court entered an order of judgment in favor of Little against Gonze, Schneider, and Vascular Surgery Associates on May 13, 2010.

The jury award included $224,398 in past medical expenses, $2,000,000 in future medical expenses, and $1,333,000 for pain and suffering. Following the trial, Schneider and the co-defendants filed a motion for a new trial and motion for reduction of the judgment. The circuit court granted the motion for reduction of the judgment and reduced the noneconomic damages from $1,333,000 to $650,000 pursuant to Section 3-2A-09 of the Maryland Code, Courts & Judicial Proceedings Article, resulting in a total judgment of $2,874,398.00. The circuit court ⁴²⁸ denied the motion for a new trial.

This timely appeal followed. DISCUSSION Summarizing the contentions of the parties, Schneider first argues that the trial court abused its discretion by prohibiting him from introducing a 2007 CAT scan which, Schneider argued, would have accurately established the size of Little’s aorta. Little responds that the circuit court properly exercised its discretion to exclude the CAT scan because the CAT scan was not produced during discovery nor was it made available to expert witnesses at the time of their depositions. Second, Schneider argues that the trial court erred by allowing the introduction of evidence regarding Schneider’s lack of board certification.

Schneider argues that the introduction of this evidence was both irrelevant and unfairly prejudicial, and therefore, it should have been excluded. Little responds that the circuit court was within its discretion to permit the evidence. Third, Schneider argues that the trial court abused its discretion in allowing Dr. Dodds, an anesthesiologist, to testify on the issue of causation. Schneider argues that as an anesthesiologist, Dr. Dodds lacked the requisite knowledge and expertise to testify regarding the cause of Little’s spinal cord injuries.

Little responds that the circuit court acted within its discretion to permit the evidence and that Dr. Dodds had significant experience in the area of spinal cord injuries as the result of surgical complications. We address each of Schneider’s contentions in turn. I. Schneider first argues that the trial court erred by prohibiting the introduction into evidence of a 2007 CAT scan, which, Schneider argued, would have established the true size of Little’s aorta. For the reasons set forth below, we agree. ⁴²⁹ A. Proceedings Below One of the central issues of this case was whether there was a size mismatch between the 16 x 9 mm graft used by-Schneider and Gonze for the aortobifemoral bypass and Little’s aorta.

Various evidence was presented by the parties regarding that actual size of Little’s aorta. Little pointed to the operative note in which Schneider described Little’s aorta as “extremely diminutive measuring 7-8 mm in maximal diameter.” Little also presented testimony from an expert witness, Dr. Preston Flanigan, a vascular surgeon, who stated that he “thought that the aortogram was compatible” with an aorta measuring 7-8 mm. Little also referenced other medical records indicating her aorta was small. Schneider pointed to other evidence suggesting that Little’s aorta was significantly larger than 8mm.

Schneider testified that, based on an angiogram, Little’s aorta was at least 13-14 mms, and noted that an aorta that size would be on the small end of normal. 8 Schneider also testified that a 8 mm graft was used for the axillary artery in the axillobifemoral bypass, and that by definition the aorta must be larger than the axillary artery, given that the aorta is the largest artery in the body. Gonze testified that Little’s aorta was at least 12 mm, and Dr. William Suggs, a vascular surgeon, testified that, based on an angiogram and prior 8 mm stent that had earlier been placed inside Little’s aorta, he estimated that Little’s aorta was 14 mm. Dr. Suggs also testified that a 7 to 8 mm aorta was the size of a pediatric aorta and not an adult aorta. Dr. Marshall Benjamin, a vascular surgeon, testified that based on an angiogram, he estimated Little’s aorta to be 14 mm.

Dr. Benjamin also testified that he had never seen a 7-8 mm aorta in an adult. All of the witnesses, however, acknowledged that the angiogram is of limited value in estimating the size of the aorta, given that it only shows the internal area of the aorta and not ⁴³⁰ the exterior of the aorta. Therefore, the witnesses acknowledged that while it is possible to estimate the size of the aorta based upon an angiogram, it is not possible to conclusively establish the size of the aorta based exclusively upon an angiogram. During trial, after Little’s experts had finished testifying but before calling Schneider and Gonze as adverse witnesses, Little moved to preclude Schneider from introducing a 2007 CAT scan to attempt to establish the size of Little’s aorta.

Little’s attorney stated that he had realized that, in his opening statement, Schneider’s attorney had referred to a CAT scan. Little’s attorney now anticipated that Schneider was planning to have witnesses testify regarding the 2007 CAT scan. Counsel for Little argued that the CAT scan should not be admitted because it had not been provided during discovery. The circuit court held a lengthy hearing on the issue.

Little’s attorneys argued that they had not been provided with a copy of the CAT scan until April 13, 2010, two weeks before trial, when they received a letter and CD from co-defendant Dr. Eves’ attorney. Counsel for Little farther argued that none of the expert witnesses, for either the plaintiff or the defense, had mentioned the CAT scan during their depositions. Rather, all of the experts relied upon angiograms as the only source of radiographic imaging. The defendants, Schneider and Gonze, had also not referred to the 2007 CAT scan during their depositions.

Little’s counsel further argued that it would be very prejudicial to allow the CAT scan evidence to come in at this point, given that Little’s experts had already finished testifying and her primary expert on this issue, Dr. Flanigan, had returned to California. Defense counsel argued that the CAT scan had been performed at Upper Chesapeake Medical Center in January of 2007 and that the written report from the CAT scan had come from the records of Dr. Charles Eck, one of Little’s treating physicians. Defense counsel stated that the written report portion of the CAT scan had already been entered into ⁴³¹ evidence by Little as part of the records of Dr. Eck and that the CAT scan itself had been produced to Schneider and Gonze during discovery by Upper Chesapeake Medical Center. Little had served a request for production of documents to Upper Chesapeake Medical Center, which was formerly a defendant in this case.

Defense counsel stated that they had received a letter from Upper Chesapeake Medical Center, addressed to both plaintiffs counsel and defendant’s counsel, in response to the request for production of documents. The response included a letter, dated February 4, 2009, and two CDs. The letter stated that the two enclosed CDs contained an angiogram from August 7, 2001 and an aortogram from June 18, 2007 but did not refer to a CAT scan. Defense counsel stated that although the February 4th letter did not reference a CAT scan, the CAT scan was included on one of the CDs.

Little’s counsel acknowledged receiving the same February 4 letter and accompanying CDs, but stated that the CDs they received did not contain a CAT scan. Little’s counsel maintained that they never received a CD with a CAT scan until April 12, 2010, when they received the CAT scan from Dr. Eves’ attorney. Defense counsel offered to produce the CD and demonstrate to the court that the CAT scan was on the same CD as the aortogram, which defense counsel had received from Upper Chesapeake Medical Center with the accompanying February 4, 2009 letter. The following colloquy ensued: THE COURT: Does Plaintiffs counsel want that up? [PLAINTIFF’S COUNSEL]: It’s not necessary, Your Hon- or.

I don’t have it. That, I know. I have gone through them and I don’t have them. Whether [defense counsel’s] CD has it or not, I’ll take his word for it, but I don’t have them.

THE COURT: So, it is not on the CD that you got? [PLAINTIFF’S COUNSEL]: Again, I’m not a tech, expert either, but I have provided the CD’s [sic] that were given to me by Ms. Plant to my experts for review and I have been told that they are not on there. ⁴³² [DEFENSE COUNSEL]: Your Honor, let me just say I can’t speak to that other than the fact that I know that on the two CD’s [sic] that were provided those images were on there. We know that their person who did put the aortogram up apparently had a CD and put it up. I can’t say that. I can say this, Your Honor.

THE COURT: That is not the critical issue anyway. The critical issue goes to the second part as to what these people [the defense experts and the defendants] have said [at deposition]. The circuit court, after significant argument by the parties, granted Little’s motion to exclude the CAT scan testimony, stating: [Considering everything, I think this is exactly along the lines of where I ruled against the Plaintiff pretrial. 9 I think discovery is there for a reason, it serves a purpose, and I do agree with the arguments of the Plaintiff. I’ll adopt document that [sic] and grant the Plaintiffs motion in limine to exclude this [CAT scan].

B. Standard of Review We review a trial court’s finding of a discovery violation under the clearly erroneous standard. “When reviewing the circuit court’s imposition of sanctions for discovery abuse, we are bound to the court’s factual findings unless we find them to be clearly erroneous.” Klupt v. Krongard, 126 Md.App. 179, 193 , 728 A.2d 727 (1999). “Our scope of review is narrow and our function is not to substitute our judgment for that of the fact finder, even if we might have reached a different result.” Id. Instead, we must “decide only whether there was sufficient evidence to support the trial court’s findings. In making this decision, we must assume the truth of all the evidence, and of all the favorable inferences fairly ⁴³³ deducible therefrom, tending to support the factual conclusions of the lower court.” Id. “When considering the actual imposition of discovery sanctions, our review is narrower still.” Id. We review the granting of a motion in limine for discovery sanctions under an abuse of discretion standard.

Saxon Mortgage. Servs. v. Harrison, 186 Md.App. 228, 252 , 973 A.2d 841, 854-55 (2009) (citing Lowery v. Smitksburg Emergency Med. Serv., 173 Md.App. 662, 674 , 920 A.2d 546 (2007)). We entrust trial judges “with a large measure of discretion in applying sanctions for discovery violations.” Id.

(internal quotations omitted). The Court of Appeals has identified five factors (“Taliaferro factors”) that a trial court must consider when exercising its discretion to exclude evidence disclosed in violation of the discovery rules: (1) whether the disclosure violation was technical or substantial; (2) the timing of the ultimate disclosure; (3) the reason, if any, for the violation; (4) the degree of prejudice to the parties respectively offering and opposing the evidence; (5) whether any resulting prejudice might be cured by a postponement and, if so, the overall desirability of a continuance. Id. (quoting Taliaferro v. State, 295 Md. 376, 390-91 , 456 A.2d 29, 37 (1983)).

We have recognized that these factors often overlap and therefore “they do not lend themselves to compartmental analysis.” Storetrax.com, Inc. v. Gurland, 168 Md.App. 50, 89 , 895 A.2d 355, 378 (2006). “When a discovery violation- becomes apparent only after the trial has commenced, the potential for prejudice is greater than if the discovery violation had occurred prior to trial.” Id. We review a trial judge’s decision to limit expert testimony that departs from deposition testimony under an abuse of discretion standard. Hill v. Wilson, 134 Md.App. 472, 489 , 760 A.2d 294 (2000). It is well established that a ⁴³⁴ trial judge has the power to exclude trial testimony that constitutes a material departure from what an expert witness testified to at deposition.

Id., supra, at 481-82, 760 A.2d 294 . “When the question is whether there is a material variance between what the witness testified to at deposition and what the witness will testify to at trial, the trial judge’s finding of fact will be affirmed on appeals unless the reviewing court is persuaded that the trial judge’s finding is clearly erroneous ... When the question is whether the trial court selected an appropriate remedy [to limit testimony of an expert to what he testified to at deposition], the trial court’s remedy of choice will be affirmed on appeal unless the reviewing court is persuaded that the trial court abused its discretion.” Id., supra, at 489, 760 A.2d 294 . We review a trial court’s exclusion of evidence pursuant to Maryland Rule 5-403 under the abuse of discretion standard. “When weighing the probative value of proffered evidence against its potentially prejudicial nature, an abuse of discretion in the ruling may be found where no reasonable person would share the view taken by the trial judge.” Consol. Waste Indus. v. Std.

Equip. Co., 421 Md. 210, 219 , 26 A.3d 352 (2011) (internal quotation omitted). C. Exclusion of the CAT Scan We first consider whether the circuit court erred in finding a discovery violation occurred. We conclude that the court was clearly erroneous in finding that Schneider or his attorneys committed a discovery violation regarding the production of the CAT scan.

Second, we consider whether, even if a discovery violation had occurred, the circuit court acted within its discretion to impose a sanction of precluding the use of the CAT scan altogether. We conclude that the trial court did not properly exercise its discretion when it precluded any use of the CAT scan. Third, we consider whether the circuit court acted within its discretion when it prevented expert witnesses from testifying regarding the CAT scan when none had testified regarding the CAT scan in deposition. We conclude that the court was within its discretion to limit the expert testimo ⁴³⁵ ny on this issue.

Finally, we consider whether there was any basis for excluding the CAT scan as unfairly prejudicial pursuant to Maryland Rule 5-403. We conclude that there was no basis for excluding the CAT scan. 1. Whether a discovery violation occurred. Schneider argues that the circuit court’s finding that a discovery violation occurred was clearly erroneous.

We agree. 10 There was no evidence presented to indicate that Schneider had committed a discovery violation by failing to disclose the CAT scan. First, the CAT scan was produced during discovery to Schneider from Upper Chesapeake Medical Center, and Schneider reasonably believed that Little was similarly provided with the CAT scan from Upper Chesapeake Medical Center. Moreover, Little, in open court, conceded that Schneider’s CD actually did contain the CAT scan when her attorney stated, “Whether [defense counsel’s] CD has it or not, I’ll take his word for it, but I don’t have them.” We agree with Schneider that there was no reason for him to suspect that the CAT scan had not also been produced to Little, and therefore, we conclude that there was no evidence of a discovery violation by Schneider. Accordingly, we find that, assuming arguendo the circuit court found a discovery violation by Schneider, such finding was clearly erroneous. 2.

Whether the court properly exercised its discretion to exclude the scan. Although we conclude that the court erred in finding Schneider committed a discovery violation, we also hold that, assuming arguendo a discovery violation actually had occurred, the circuit court’s sanction for the discovery violation constituted an abuse of discretion. Maryland Rule ⁴³⁶ 2-433 provides that, once a discovery violation has occurred, a trial court may prohibit a party from entering designated items into evidence. Md..

Rule 2-433(a)(2). However, although we afford the trial court “a large measure of discretion in applying sanctions for failure to comply with [discovery rules],” the trial court must have actually exercised discretion. Scully v. Tauber, 138 Md.App. 423, 430-31 , 771 A.2d 550 (2001) (internal quotation and citation omitted). Therefore, we must first determine whether the trial court exercised its discretion.

Id., supra, at 431, 771 A.2d 550 . The exercise of discretion must be clear from the record, and when it is not clear that the trial court exercised discretion, reversal is required. Id. Further, when applying discovery sanctions, a trial court is required to consider the Taliaferro factors.

Heineman v. Bright, 124 Md.App. 1, 7-8 , 720 A.2d 1182 (1998). Here, it is not clear from the record that the circuit court properly considered the Taliaferro factors when reaching its decision to exclude the CAT scan. Specifically, the circuit court was required to consider whether the violation was technical or substantial, the timing of the disclosure, the reason for the violation, the degree of prejudice to the parties, and whether the prejudice might be cured by a postponement. Id.

Here, the circuit court, in making its ruling, simply stated, “I think this is exactly along the lines of where I ruled against the Plaintiff pretrial. I think discovery is there for a reason, it serves a purpose, and I do agree with the arguments of the Plaintiff. I’ll adopt document that [sic] and grant the Plaintiffs motion in limine to exclude this.” 11 Although the circuit court had engaged in a lengthy hearing on the issue, during which the parties argued about the timing of the disclosure, whether a discovery violation had occurred, and potential prejudice to the parties, the court did not exercise its discretion in determining an appropriate discovery ⁴³⁷ sanction. Rather, the circuit court excluded the CAT scan based solely upon Little’s attorney’s statement that he had not received the scan prior to two weeks before trial and Little’s representation that her case would be prejudiced.

The circuit court failed to consider that Schneider had reason to believe that Little had already received the scan from Upper Chesapeake Medical Center. Moreover, the court did not consider that, at the absolute latest, Little had nonetheless received the CAT scan two weeks before trial yet had failed to raise the issue until after her expert witnesses had completed their testimony. We have reversed circuit court rulings that fail to consider the Taliaferro factors and make no findings with respect to any of the factors. When a circuit court bases evidentiary rulings on consistent treatment of parties rather than consideration of the Taliaferro factors, we will reverse.

See Hart v. Miller, 65 Md.App. 620 , 501 A.2d 872 (1985); Colter v. State, 297 Md. 423, 428-30 , 466 A.2d 1286 (1983). In Hart , we held that the circuit court abused its discretion when it dismissed a case with prejudice when a party failed to comply with a deadline for filing responses to interrogatories. Hart, supra, 65 Md.App. at 626 , 501 A.2d 872 . The circuit court had emphasized the need for consistency in sanctions and failed to consider the specifics of the particular case.

Id. We stated: We disagree, however, with the trial court’s interpretation that the objective in cases calling for the exercise of discretion is for the trial judge to be consistent in deciding the sanction to be invoked. If that were the rule, the vesting of discretion in a trial judge, to decide each case on the merits, would be meaningless. Id.

In Colter , the Court of Appeals held that the circuit court abused its discretion when it “applied a hard and fast rule [ ] of not granting a continuance” when a party violated a discovery rule, without considering the potential prejudice to the parties or the potential resolution of the prejudice by granting ⁴³⁸ a continuance. Colter, supra, 297 Md. at 428-30 , 466 A.2d 1286 . We conclude that the circuit court similarly abused its discretion here by failing to consider the required Taliaferro factors. Although the circuit court engaged in a lengthy hearing, the court failed to articulate the basis for its ruling and failed to consider alternative sanctions that may have been appropriate.

Accordingly, we find that, assuming a discovery violation occurred, the circuit court abused its discretion by failing to consider the Taliaferro factors in determining the appropriate sanction for the alleged discovery violation. In her brief, Little addresses the Taliaferro factors and explains how the court could potentially have considered the factors and concluded that exclusion of the CAT scan was an appropriate sanction. We decline to address whether the Taliaferro factors, had they been properly considered, could have lead a trier of fact to reasonably conclude that the CAT scan should have been excluded. Rather, we note that the trial court failed to engage in its required discretion, and accordingly, reversal is required.

See Scully, supra, 138 Md.App. at 431 , 771 A.2d 550 . 3. Whether the court properly exercised its discretion to limit expert testimony. Having concluded that the circuit court erred in concluding a discovery violation had occurred (and assuming arguendo a discovery violation had occurred, the circuit court erred in failing to consider the Taliaferro factors when it excluded the CAT scan), we next consider whether the circuit court was within its discretion when it precluded expert witnesses from testifying regarding the CAT scan. Because none of Schneider’s expert witnesses had testified regarding the CAT scan in deposition, we conclude that the circuit court was within its discretion to limit the expert testimony on this issue. ⁴³⁹ Maryland Rule 2-402(g) allows a party to require another party, through interrogatories, to disclose the subject matter on which an expert is expected to testify, the substance of the findings and the opinions to which the expert is expected to testify, and the grounds for each of the expert’s opinions.

Md. Rule 2-402(g). Moreover, it is well established that a trial judge has the power to exclude trial testimony that constitutes a material departure from what an expert witness testified to at deposition. 12 Id., supra, at 481-82, 760 A.2d 294 . None of Schneider’s expert witnesses had disclosed that he would be offering an opinion on the size of Little’s aorta based on a CAT scan, nor had any expert testified regarding the CAT scan at deposition. Accordingly, we conclude that the circuit court did not abuse its discretion when it precluded Schneider’s expert witnesses from testifying regarding the CAT scan at trial.

We find support for this conclusion in Hill v. Wilson, a case in which the trial court excluded testimony by an expert witness when the matter had not been addressed in the expert’s deposition. 134 Md.App. 472 , 760 A.2d 294 (2000). In Hill , at deposition, an expert witness had said that a wheelchair had a problem with a rod across the back, but did not explicitly state that the wheelchair was broken. Id. at 489 , 760 A.2d 294 . The trial court precluded the witness from testifying at trial that the wheelchair was broken.

Id. On appeal, we stated that this “is simply not a case in which no reasonable person would take the view adopted by the trial court.” Id. at 490 , 760 A.2d 294 . The Court noted that “for a discretionary ruling to be reversed, ‘the decision under consideration has to be well removed from any center mark imag ⁴⁴⁰ ined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.’ ” Id. (quoting In Re Adoption/Guardianship No. 3598, 347 Md. 295, 313 , 701 A.2d 110 (1997)).

In the instant case, the experts had not testified at deposition as to the size of Little’s aorta based upon the CAT scan. The circuit judge reasonably concluded that testifying as to the CAT scan at trial would be a material departure from the experts’ testimony at deposition. As in Hill , we believe that the circuit court’s decision in this case was not a decision “beyond the fringe of what the court deems minimally acceptable,” and therefore, we hold that the circuit court did not abuse its discretion by precluding the expert witnesses from testifying regarding the CAT scan. We emphasize that, although the circuit court was within its discretion to limit expert testimony regarding the CAT scan, we do not find the circuit court was within its discretion to limit testimony regarding the CAT scan by the defendants Schneider and Gonze.

Schneider and Gonze were not testifying as experts and were not subject to the disclosure requirements of Rule 2-402(g). Moreover, although Schneider did not testify at deposition specifically that the CAT scan demonstrated the size of Little’s aorta, he did testify that a method to measure the size of an aorta was with “a CAT scan.” He did not testify regarding the specific CAT scan at issue here, but significantly, he was never asked a question that would have elicited a response relating to the 2007 CAT scan. We find no basis in Maryland Rule 2-402(g) or Hill v. Wilson for precluding the defendants themselves from testifying as to the CAT scan. 4. Whether there was any other basis for excluding the CAT scan.

Finally, we consider whether there was any other basis for the circuit court to completely exclude the CAT scan. Maryland Rule 5-403 provides that relevant evidence “may be excluded if its probative value is substantially outweighed by ⁴⁴¹ the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Md. Rule 5-403. Maryland Rule 5-401 defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Md. Rule 5-401. The CAT scan was clearly relevant.

Schneider argued that the CAT scan would have established the size of Little’s aorta. The size of Little’s aorta was a critical fact at trial, given that a mismatch between the size of the aorta and the 16 x 9 mm graft was the basis of one of Little’s allegations of negligence. The CAT scan, which would demonstrate the size of Little’s aorta, would certainly make the size mismatch “more or less probable” than without the CAT scan. The exclusion of the CAT scan cannot be characterized as appropriate under Rule 5-403.

There was no contention that the admission of the CAT scan would confuse the issues, mislead the jury, cause undue delay or waste of time, or constitute needless presentation of cumulative evidence. Little argued that she would be unfairly prejudiced if the CAT scan were admitted, but the prejudice Little would have faced is not the type of prejudice contemplated by Maryland Rule 5-403. “The fact that evidence prejudices one party or the other, in the sense that it hurts his or her case, is not the undesirable prejudice referred to in Rule 5-403.” Odum v. State, 412 Md. 593, 615 , 989 A.2d 232 (2010). Rather, “[probative value is outweighed by the danger of ‘unfair’ prejudice when the evidence produces such an emotional response that logic cannot overcome prejudice or sympathy needlessly injected into the case.” Id. (internal citation and quotation omitted).

Here, the CAT scan was greatly probative of whether there was, in fact, a size mismatch between the aorta and the graft, and there is no indication that the admission of the CAT scan would have provoked any type of emotional response or sympathy from the fact finder. Accordingly, we conclude that, if the exclusion of the CAT scan were character ⁴⁴² ized as an exclusion pursuant to the Maryland Rule 5-403, such an exclusion would constitute an abuse of discretion. Little argues that, because Schneider and Gonze did not rely on the CAT scan to determine the size of Little’s aorta prior to or during the aortobifemoral bypass surgery, the CAT scan is not relevant. We acknowledge that the CAT scan was not relevant to Schneider’s medical treatment of Little.

It is relevant, however, to whether there was a size mismatch between the aorta and the graft. Moreover, Schneider’s veracity was called into question when he testified that the 7-8 mm size estimate of the aorta in the operative note was an error. The CAT scan was relevant to whether or not the operative note was, in fact, an error. Had the CAT scan been admitted, Schneider could