Terumo Medical Corp. v. Greenway

MOYLAN, J. This appeal’s fatal flaw is that the case the appellant would like to litigate here at the appellate level is not the case it put on at the trial level, “and thereby hangs the tale.” 1 The issue the appellant would like us to analyze is the basis for an expert opinion. The issue we shall analyze is the proper time and place and modality for raising a challenge to such a basis. On the consideration of the latter question, the merits of the former are immaterial. The appellee, Ellen D. Greenway, initially filed a claim with the Workers’ Compensation Commission, alleging an accidental injury to her lower back that occurred while she was employed by the appellant, Terumo Medical Corporation.

The Commission made an award to the appellee for permanent partial disability in the amount of 50% industrial loss of the body. The appellee, seeking a larger award, petitioned for judicial review by the Circuit Court for Cecil County. Following a two-day trial on December 7-8, 2005, a Cecil County jury, presided over by Judge J. Owen Wise, found that the appellee was permanently and totally disabled. On this appeal, the appellant raises the two contentions 1. that Judge Wise erroneously denied its Motion for Judgment at the end of the entire case; and 2. . that Judge Wise erroneously instructed the jury on the issue of permanent total disability. ⁶²¹ An Opinion Introduced Without Objection On the critical issue of the permanency of her disability, the appellee relied primarily on the expert opinion of Dr. Raymond Drapkin.

Dr. Drapkin testified via a video-taped deposition. Dr. Drapkin was fully qualified as an expert competent to render a medical opinion as to the appellee’s degree of disability. The appellant raises no challenge in that regard. Dr. Drapkin testified in detail about a number of things that he looked at and reviewed in the course of his evaluation of the appellee, but, in view of our disposition of the appellant’s first contention, it is unnecessary to recount a catalog of factors that are in the last analysis immaterial.

As he concluded his direct testimony, Dr. Drapkin offered the following bottom-line appraisal of the appellee’s disability. Q And based on those same things, your exam, your review of the records, and diagnostic studies, did you reach an opinion within a reasonable degree of medical probability as to Ms. Greenway’s ability to return to work? AI felt that she was unable to ever return to work again. Q Okay.

And the opinions you’ve expressed today are all within a reasonable degree of medical probability? A Yes. They are all within a reasonable degree of medical probability. It was my opinion, based upon this type of surgery and her condition, that also as stated she could not return to her work.

And when I review all her medical records, that was also the opinion of her treating physician who did the surgery, that she could not return to work. (Emphasis supplied). That opinion was received in evidence without objection. At no time prior to the playing of the video tape before the jury did the appellant, by motion in limine or otherwise, seek to preclude the admission of Dr. Drapkin’s opinion.

At no time during or immediately after the playing of the video tape did the appellant object to the admissibility of Dr. Drapkin’s expert opinion. Maryland Rule 5-103(a) is very clear. ⁶²² (a) Effect of erroneous ruling. Error may not be predicated upon a ruling that admits or excludes evidence unless the party is prejudiced by the ruling, and (1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was requested by the court or required by rule.

(Emphasis supplied). The admission of Dr. Drapkin’s expert opinion is no longer subject to challenge. In Hall v. State, 119 Md.App. 377, 389-90 , 705 A.2d 50 (1998), Judge Bloom explained why the requirement of a contemporary objection to admissibility is so important. It is a well recognized principle that, as a general matter, the admissibility of evidence admitted without objection cannot be reviewed on appeal.

An objection is required so that the proponent of the evidence may rephrase the question or proffer so as to remove any objectionable defects, if possible. It also allows the trial judge to resolve as many issues as possible, so as to avoid unnecessary appeals. McLain, Maryland Evidence, § 103.3. Md. Rule 5-103 specifically provides that “[ejrror can not be predicated upon a ruling that admits or excludes evidence unless the party is prejudiced by the ruling and ... [i]n case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was requested by the court or required by rules;____” (Emphasis supplied).

The appellant had no less than three opportunities to object to the admission of Dr. Drapkin’s opinion. It availed itself of none of them. The appellant could have objected to Dr. Drapkin’s rendering of his opinion in the course of the deposition itself. It did not do so.

Knowing well before trial the full content of the deposition, the appellant could, pursuant to Rule 2-416(g), have moved to have all or part of Dr. Drapkin’s testimony excluded. It did not do so. During the playing of the video tape before the jury, the appellant could ⁶²³ have objected to the admission of the expert opinion. It did not do so.

After that point, the time for challenging the admissibility of the evidence had passed. Legal Sufficiency Versus Admissibility Any flaws or imperfections in the basis for the opinion could still, of course, have been argued to the jury. The possible impact of such argument, however, would have been only upon the weight of the evidence and not upon its admissibility. A motion for judgment pursuant to Rule 2-519, by contrast to a jury argument, is concerned only with whether the plaintiff has met the burden of prima facie production, as a matter of law, and not with the weight of the evidence, as a matter of fact.

A motion for judgment under rule 2-519 may not be used to challenge indirectly an admissibility ruling that may no longer be challenged directly. Maryland Rule 5-702 Regulates Admissibility, Not Legal Sufficiency At the most fundamental level, the appellant is confusing the issues of 1) admissibility and 2) legal sufficiency. In arguing that it was erroneously denied a judgment at the end of the entire case, the appellant relies almost exclusively, but inappropriately, on Rule 5-702. Once the meridian of admissibility has been successfully passed, rightly or wrongly, the evidence thus received will figure into the computation of legal sufficiency.

The question of whether the evidence was rightly or wrongly received is an entirely different issue, focusing on an earlier trial event and not on the motion for judgment. The appellant blurs this line of demarcation. Rule 5-702 is concerned with the admissibility of expert testimony, including the adequacy of the basis for an expert’s opinion. It is beyond dispute that the procedural step in a trial to which Rule 5-702 is addressed is the reception into evidence of the expert testimony and expert opinion.

The opening words of the rule flatly state: ⁶²⁴ Expert testimony may be admitted, in the form of an opinion or otherwise, if.... (Emphasis supplied). Lynn McLain, Maryland Evidence (2d ed.2001), § 702.2, clearly states, with specific reference to Rule 5-702(3) concerning the basis for an expert’s opinion, that if the proffered opinion lacks an adequate basis, it is inadmissible per se. Md. Rule 5-702(3) codifies the Maryland case law rule that expert testimony is inadmissible if it lacks an adequate basis.

Testimony amounting only to speculation or conjecture, or testimony based on improper or insufficient data, or testimony lacking factual support in the admitted evidence, is inadmissible. (Emphasis supplied). If a proffered expert opinion, properly challenged, fails the Rule 5-702 test in any respect, it does not come into evidence at all. It does not come halfway in, with less than full efficacy.

Under Rule 5-702, the evidence is either in or out. Our point is that whatever battle is to be fought out over the adequacy of the factual basis for an expert opinion is to be fought out when the evidence is offered and when the judge rules on its admissibility. The opponent of the expert evidence does not get a second opportunity to challenge the factual basis for the expert opinion under the guise of litigating something else, such as a motion for judgment under Rule 2-519. That, however, is precisely what the appellant is attempting to do.

The ultimate substantive “sufficiency” of the plaintiffs case, which is the concern of Rule 2-519, and the admissibility-oriented “sufficiency” of the factual basis for an expert opinion, which is the concern of Rule 5-702, are very different questions and should not be confused. All “sufficiencies” are not the same, and a proper consideration of substantive “sufficiency,” under Rule 2-519, does not embrace a reconsideration of evidentiary “sufficiency” within the contemplation of Rule 5-702. ⁶²⁵ Why This Is the Law To the best of our researching capabilities, we have not been able to discover a reported decision dealing with precisely this issue. Our assurance in holding as we do, however, is supported by both inherent logic and principles of legal economy. In terms of legal economy, for every type of ruling a trial judge must make, there is typically a precise juncture at which such ruling should be made and from which an appellate claim of error may be taken.

As a practical matter, trial procedure and appellate procedure do not indulge the raising of precisely the same issue in two different ways in two different places. That is not an efficient way to operate a legal system. Rulings on the admissibility of evidence are a highly pertinent case in point. Maryland Rule 5-103(a)(l) controls the challenging of an evidentiary ruling.

(a) Effect of erroneous ruling. Error may not be predicated upon a ruling that admits or excludes evidence unless the party is prejudiced by the ruling, and (1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was requested by the court or required by rule. (Emphasis supplied).

Rule 5-103(a) would be emasculated if an evidentiary ruling could still be challenged indirectly, on a motion for judgment for instance, even though it had not been challenged and could no longer be challenged directly because of Rule 5-103(a). It would be, in classical terms, a violation of Occam’s Razor to multiply unnecessarily the procedural modalities by which the admission of an item of evidence might be challenged. The law seeks to accomplish a goal in one particular way, and that should be the simplest way possible. 2 Rule 2-517, indeed, reinforces the direct approach mandated by Rule 5-103(a). Rule 2-517 provides, in pertinent part: ⁶²⁶ (a) Objections to evidence.

An objection to the admission of evidence shall be made at the time the evidence is offered or as soon thereafter as the grounds for objection become apparent. Otherwise, the objection is waived. The court shall rule upon the objection promptly. (Emphasis supplied).

See also Burke v. Associates Loan Co., 210 Md. 211, 212 , 123 A.2d 206 (1956); Martin v. State, 203 Md. 66, 72 , 98 A.2d 8 (1953); Cole v. Sullivan, 110 Md.App. 79, 87-88 , 676 A.2d 85 (1996) (“Rule 2-517 requires an objection to be made at ‘the time evidence is offered or as soon thereafter as the grounds for objection become apparent. Otherwise, the objection is waived.’ ”). In Perry v. State, 357 Md. 37, 77 , 741 A.2d 1162 (1999), Judge Wilner explained the purpose for insisting upon a contemporaneous objection. The requirement of a contemporaneous objection is a necessary and salutary one, designed to assure both fairness and efficiency in the conduct of trials.

A party cannot be permitted to sit back and allow the opposing party to establish its case, or any part of its case, through unchallenged evidence and then, when it may be too late for the opposing party to recover, to seek to strike the evidence. (Emphasis supplied). Rule 2-519, in contrast to Rules 2-517, 5-103 and 5-702, focuses on an issue quite distinct from that of evidentiary admissibility. In analyzing whether a proponent has met the burden of production, the court lists the constituent elements of the proposition to be proved—the crime, the tort, the contract, etc.—and then determines whether the evidence in the case, if given maximum credibility and maximum weight, could permit the fact finder fairly to find each of those constituent elements.

If a Rule 2-519 motion were intended to serve the secondary function of permitting a party to relitigate admissibility, after having lost the initial opportunity to do so, as the appellant necessarily argues it is intended to serve, a strange anomaly would result. A Rule 2-519 motion, of course, may ⁶²⁷ be made at the close of all the evidence only “in a jury trial.” 3 (Emphasis supplied). Why should a party, at the end of the entire case, be given a second opportunity to challenge evidence in a jury trial, but be denied the same opportunity in a non-jury trial? There would be no rhyme or reason for such a discriminatory distinction, if permitting a second round of objections were, indeed, the purpose (even a secondary purpose) of a Rule 2-519 motion.

It is not. When the burden of production is being analyzed pursuant to Rule 2-519, the evidence introduced by the proponent is given the benefit of every favorable presumption. The evidence at that juncture is not to be questioned or weighed skeptically. As Judge Orth pointed out for the Court of Appeals in Impala Platinum v. Impala Sales, 283 Md. 296, 328 , 389 A.2d 887 (1978): [I]n considering a motion for a directed verdict the trial court assumes the truth of all credible evidence on the issue and of all inferences fairly deducible therefrom, and considers them in the light most favorable to the party against whom the motion is made.

Dix v. Spampinato, 278 Md. 34, 37 , 358 A.2d 237 (1976); D.C. Transit System v. Brooks, 264 Md. 578, 580 , 287 A.2d 251 (1972); Stoskin v. Prensky, 256 Md. 707, 709 , 262 A.2d 48 (1970); P. Flanigan & Sons v. Childs, 251 Md. 646, 653 , 248 A.2d 473 (1968); Hogan v. Q.T. Corporation, 230 Md. 69, 74 , 185 A.2d 491 (1962); Campbell, Etc. v. Patton, 227 Md. 125, 134 , 175 A.2d 761 (1961). If there is any legally relevant and competent evidence, however, slight, from which a rational mind could infer a fact in issue, then a trial court would be invading the province of the jury by declaring a directed verdict. In such circumstances, the case should be submitted to the jury and a motion for a directed verdict denied. Snoots v. ⁶²⁸ Demorest, 254 Md. 572, 575 , 255 A.2d 12 (1969); Lumbermens Mut Cas.

Co. v. Ely, 253 Md. 254, 263 , 252 A.2d 786 (1969); Jacobson v. Julian, 246 Md. 549, 555-556 , 229 A.2d 108 (1967); Plitt v. Greenberg, 242 Md. 359, 367-368 , 219 A.2d 237 (1966); Smack v. Jackson, 238 Md. 35, 37 , 207 A.2d 511 (1965); Dunnill v. Bloomberg, 228 Md. 230, 233 , 179 A.2d 371 (1962). (Emphasis supplied). Judge Orth also went on to describe the similar tilt in favor of the evidence when the appellate court is reviewing a decision made on a motion for judgment. In considering the propriety of the trial court’s ruling on a motion for directed verdict, this Court, as well as the lower court, is obliged to assume the truth of all evidence tending to sustain the party against whom the motion is directed, as well as all inferences of fact reasonably and fairly deducible therefrom.

Fleming v. Prince George’s County, 277 Md. 655, 658 , 358 A.2d 892 (1976); Taylor v. Armiger, 277 Md. 638, 640 , 358 A.2d 883 (1976); Summit Loans, Inc. v. Pecola, 265 Md. 43, 46 , 288 A.2d 114 (1972); Wood v. Johnson, 242 Md. 446, 452 , 219 A.2d 231 (1966); Smith v. Bernfeld, 226 Md. 400, 405 , 174 A.2d 53 (1961). 283 Md. at 329 , 389 A.2d 887 . See also Paul V. Niemeyer and Linda M. Schuett, Maryland Rules Commentary (2d ed.1992), 389-90. As we apply that principle of looking at the evidence in the light most favorable to the proponent (the non-moving party), how does that optimal perception operate with respect to an expert opinion that has once been received in evidence at the behest of the proponent? An expert opinion, if once received in evidence, is competent to support the conclusion for which it was admitted.

The three prerequisites for the admissibility of an expert opinion spelled out in Rule 5-702 ipso facto establish, if they have been satisfied or unchallenged, the threshold competence of the expert opinion. If the proffered opinion is lacking in any of Rule 5-702’s three regards, including that of an adequate factual basis for the opinion, it is per se inadmissi ⁶²⁹ ble in the first instance. See Lynn McLain, Maryland Evidence (2d ed.2001), §§ 702 et seq. For the appellant to argue that “Dr. Drapkin did not have an adequate factual basis to render an opinion on permanent total disability” is, ipso facto, to argue that Dr. Drapkin’s testimony was inadmissible pursuant to Rule 5-702(3), which provides: Expert testimony may be admitted in the form of an opinion ... if the court determines that ... a sufficient factual basis exists to support the expert testimony.

(Emphasis supplied). That initial hurdle of admissibility had been once cleared, but was being redundantly raised again by the appellant. If an expert opinion is admissible in the first instance, its competence is thus established. If it is not competent, it is not admissible.

The issue of competence is wrapped into the issue of admissibility, and the one cannot be divorced from the other. It is a contradiction in terms, therefore, to say that an expert opinion is, at one and the same time, both 1) properly admitted in evidence and 2) legally incompetent, as a matter of law. If an expert opinion has been ruled to be admissible or is beyond challenging in that regard, it necessarily enjoys, for Rule 2-519 purposes, 1) the presumption of having satisfied Rule 5-702’s three requirements and 2) the presumption, thereby, of being legally competent to support the conclusion of the expert for which it was received. That is, by definition, “the light most favorable to the proponent,” in which it is to be viewed.

Whether the expert opinion, even when given maximum weight and maximum credibility, is enough for the plaintiff to survive a Rule 2-519 motion and to take a case to the jury is an entirely different matter. It may or my not be, depending on what the constituent elements are of the proposition that is to be proved. That distinct question, however, is not the question the appellant is raising in this case. ⁶³⁰ Our response to the appellant’s contention is simply that, once an expert opinion has been received in evidence, one may not seek to avoid its impact by making an untimely Rule 5-702 admissibility challenge under the guise of a Rule 2-519 motion for judgment based on the legal insufficiency of the plaintiffs case. The right to challenge the sufficiency or adequacy of the plaintiffs case in macrocosm does not embrace the entitlement to rechallenge the sufficiency or adequacy of the basis for the expert’s opinion in microcosm.

There are different kinds of sufficiency, and there are different times and places and ways for measuring sufficiency for different purposes. It is this distinction that the appellant sought to blur. It is this distinction that we are laboring to make clear. Were the appellant’s position to prevail, moreover, the repercussions could be chaotic.

An opponent could fail to challenge an expert’s qualifications when the expert initially took the stand but could later, in a motion for judgment at the close of the entire case, cast the expert’s credentials into question for the first time. Were the expert not properly qualified, after all, the expert’s opinion could not establish the conclusion for which it was offered. In terms of an expert’s methodology, an opponent could, for the first time at the close of the entire case, raise a Frye-Reed challenge to a methodology’s acceptance in the scientific community. A Frye-Reed challenge could trigger extensive legal argument, legal memoranda, and possibly additional testimony.

Were the methodology not acceptable, after all, the expert opinion could not establish the conclusion based upon that methodology. Our procedure simply does not contemplate using the relatively routine motion for judgment at the close of the entire case in a jury trial as a forum for virtually retrying the entire case. The result could be procedural pandemonium. By analogy to the criminal law, a motion for a judgment of acquittal at the close of the entire case does not indulge the redundant relitigation of even fundamental constitutional rights.

Even in a case in which the State’s evidence might not have been legally sufficient to go to the jury without the defendant’s confession or without the physical evidence or ⁶³¹ without the pretrial identification, the unchallenged confession may not be deemed legally insufficient just because its voluntariness was not expressly shown; the unchallenged physical evidence may not be deemed legally insufficient just because its warrantless seizure was not expressly justified; and the