Evidentiary Issues

Using Expert Testimony in a Maryland Accident Case

July 10, 2021 | Lebowitz & Mzhen

Expert testimony is useful in many Maryland accident cases, and in some cases, expert testimony is essential. Under Maryland Rule of Evidence 5-702, expert testimony may be admitted if the court finds that the testimony will help the trier of fact to understand the evidence or to determine a fact in issue. In determining whether to admit expert testimony, a court will consider whether the witness is qualified as an expert, whether the testimony is appropriate, and whether there is a sufficient factual basis to support the testimony.

A recent decision of the Supreme Court of Virginia considered whether a trial court properly excluded expert testimony in a wrongful death case arising from “an unexplainable single-vehicle accident” in which both occupants died. According to the decision, one morning, a tractor-trailer owned by a company left its lane of travel on a highway and rolled down an embankment in Rockbridge County, Virginia. The crash killed both of the occupants of the vehicle: an employee of the company, who was transporting fertilizer, and the plaintiff, who was a friend of the employee and accompanied the employee on the day of the crash.

The plaintiff (administrator of the friend’s estate) filed a complaint against the employer and against the administrator of the employee’s estate, seeking damages for wrongful death.

Maryland Court of Appeals Clarifies Standard of Admitting Expert Witness Testimony in Personal Injury Cases

September 21, 2020 | Lebowitz & Mzhen

When someone is injured in a Maryland accident and decides to file a personal injury lawsuit, their case may end up going to trial. Many people imagine trials look like how they appear on television—two lawyers arguing in front of a judge, questioning witnesses, and making a passionate appeal to the jury. While this does happen, a lot of the work involved in a trial actually happens behind the scenes, in deciding what evidence is and is not admissible. This is especially important when it comes to Maryland medical malpractice cases, which typically involve expert witness testimony. Recently, the Court of Appeals of Maryland issued an important opinion that clarified when expert testimony based on new or novel scientific principles is admissible.

In the 1970s, the court adopted what is referred to as the “general acceptance” test, which basically stated that courts should decide the admissibility of evidence by looking to see if there is general acceptance within the relevant scientific community. Not every member of the scientific community has to agree with it under this test, but it should be generally accepted by a fair proportion. However, in the 1990s, in response to a U.S. Supreme Court decision, Maryland adopted Maryland Rule 5-702, modeled after the Federal Rules of Evidence Rule 702, which laid out the elements of admissible expert testimony. This new rule did not, however, overrule the court’s previous decision that adopted the general acceptance test, leaving many confused about how the two were related.

Finally, the Court of Appeals addressed the confusion in a medical malpractice case. The plaintiff in the case was trying to submit expert testimony on the connection between lead poisoning and ADHD, and disputes arose over the admissibility of the evidence. In the court’s written opinion, it clarified that the general acceptance rule was no longer the proper test when deciding whether or not the evidence was admissible. Instead, ten factors from the Supreme Court’s 1993 decision in Daubert v. Merrell Dow Pharmaceuticals were to be weighed by trial courts.

The Use of Interrogatories in Maryland Accident Cases

May 19, 2020 | Lebowitz & Mzhen

Interrogatories are part of the discovery process in a civil case. An interrogatory is a series of written questions asked by one party to another, which must be answered in writing. In Maryland motor vehicle accident cases, any party may serve written interrogatories to another party. The receiving party must answer interrogatories within 30 days after service or within 15 days after the date after the date when the party’s initial pleading or motion is required, whichever is later. Responses must be made under oath.

A recent case before a federal appeals court shows how failing to answer interrogatories completely and honestly can lead to much bigger problems down the road. In that case, a van had slipped off the edge of a roadway while carrying six family members—all were injured, and one family member died. The crash took place in a construction zone, where a guardrail had been removed and had not been replaced. The lines on the road also had not been repainted where it had been repaved, and there were pieces of asphalt on the shoulder.

The family sued the two construction companies that had repaved the road. The defense attorney for the companies told the plaintiffs that the two companies had a joint venture with a $1 million insurance policy. The defense attorney sent initial disclosures under Federal Rule of Civil Procedure 26. In the disclosures, concerning the defendants’ insurance coverage, they listed the joint venture’s $1 million policy as their only insurance coverage. The parties settled for $1 million and signed a release stating that they were not relying on any statements by any parties’ attorneys.

The Importance of Expert Witnesses in Maryland Personal Injury Cases

July 19, 2019 | Lebowitz & Mzhen

Many Maryland personal injury cases involving car crashes and slip-and-fall accidents raise issues that most jurors have experience within their own lives. However, in Maryland medical malpractice cases and claims involving a dangerous or defective product, there are often complex scientific or medical issues that are beyond the average juror’s expertise. In these cases, the court may allow both parties to call an expert witness.

Under Maryland Rule 5-702, the court may allow expert witness testimony, “if the court determines that the testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue.” If allowed to testify, an expert can provide their opinion regarding issues within their expertise to help the jury understand concepts that may otherwise be confusing.

Before a court allows a party to call an expert witness, the court considers three factors:

Can a Plaintiff’s Failure to Use Safety Equipment Be Used Against Them in a Maryland Personal Injury Case?

May 28, 2019 | Lebowitz & Mzhen

Maryland is known to have some of the harshest laws when it comes to determining which accident victims are able to recover for their injuries. Under Maryland’s contributory negligence rule, plaintiffs who are found to have even the slightest role in causing an accident or bringing about their own injuries are completely precluded from recovering for their injuries. That being said, there are some situations where Maryland law protects an accident victim’s ability to recover for their injuries.

One of the situations where an accident victim’s “negligence” cannot be used to defeat their claim against a defendant is when, at the time of the injury, the plaintiff was not wearing safety equipment that could potentially have reduced the plaintiff’s injuries. For example, a defendant may attempt to argue that a plaintiff’s failure to wear a motorcycle helmet or seat belt in a Maryland traffic accident was evidence of the plaintiff’s negligence. However, in these circumstances, Maryland courts have held this evidence is inadmissible. A recent state appellate decision helps explain the rationale behind this rule.

In that case, the plaintiff was helping the defendant cut down some trees on the defendant’s property. The agreement between the two men was that the plaintiff would use a chain saw to cut the trees and the defendant would watch out for any potential hazards. However, as the plaintiff was using the chainsaw to take down a tree, a dead limb came loose and fell on his head, resulting in serious injuries.

Adverse Inference Instructions in Maryland Personal Injury Cases

February 11, 2019 | Lebowitz & Mzhen

A common concern in many Maryland personal injury cases is the spoliation of evidence. Spoliation refers to the “destruction, mutilation, or alteration” of evidence by a party who is involved in the case. Typically, spoliation occurs when a party is in possession of evidence that the party believes is unfavorable to their case (and thus, favorable to the opposing party).

When it comes to the destruction of evidence, Maryland courts operate by the maxim “Omnia praesumuntur contra spoliatem” which translates to “all things are presumed against the spoliator.” Thus, courts can impose a variety of sanctions against a party who is found to have spoliated evidence. To do so, the party seeking the imposition of a sanction must establish the four elements of a spoliation claim:

The other party destroyed, mutilated, or altered the evidence;
The fact that the evidence was discoverable;
The intent to destroy the evidence; and
The evidence was destroyed at a time after a case had been filed or when the destroying party knew that a case was imminent.

Plaintiff’s Case Permitted to Proceed Despite a Failure to Preserve Relevant Evidence

October 22, 2018 | Lebowitz & Mzhen

Recently, a state appellate court issued a written opinion in a personal injury case dealing with the spoliation doctrine, which allows for a court to impose sanctions against a party who fails to preserve relevant evidence. The case presents an interesting issue for Maryland car accident victims in that it illustrates the range of consequences a party may face for failing to preserve evidence that is relevant to a pending legal proceeding.

The Facts of the Case

The plaintiff was the surviving husband of a woman who was killed in a car accident. According to the court’s opinion, the woman’s vehicle hydroplaned while driving over a portion of the road that was flooded due to a clogged storm drain. The plaintiff filed a wrongful death lawsuit against the city that was charged with maintaining the storm drain. It was undisputed that the storm drain was on city property, although the city believed it to be on county property.

After the woman’s vehicle was towed to a scrap yard, the scrap yard owner sent the plaintiff a letter indicating that the vehicle was incurring daily storage fees. Shortly after receipt of this letter, the plaintiff retained counsel, who sent a letter to the scrap yard requesting the vehicle be preserved. Counsel followed up with a telephone call the next week, and was not told that preservation of the vehicle was dependent on the payment of fees. Counsel instructed the scrap yard to direct any questions to him.

Court Discusses Admissibility of Social Media Evidence in Recent Personal Injury Case

April 2, 2018 | Lebowitz & Mzhen

Recently, a state appellate court issued a written opinion in a personal injury case that presents an interesting issue that frequently comes up in Maryland personal injury cases. The specific claim at issue was over the defendant’s access to the plaintiff’s private Facebook account.

The court ultimately concluded that the defendant met the necessary showing that the requested evidence was material and would likely lead to the discovery of relevant evidence. Thus, the court compelled disclosure of some of the information, posts, and photographs in the plaintiff’s private Facebook account.

The Facts of the Case

The plaintiff suffered a serious brain injury while riding a horse that was owned by the defendant. The plaintiff filed a personal injury claim against the defendant. In her claim, the plaintiff noted that while she used to be very active on social media and enjoyed traveling, cooking, etc., she could no longer enjoy these activities because she had a difficult time composing messages that made sense. She also claimed that she had become reclusive, and, while she used to post on social media “a lot,” she rarely did so after the accident.

Evidentiary Issues in Maryland Medical Malpractice Cases

June 22, 2016 | Lebowitz & Mzhen

Earlier this month, a Michigan court issued an interesting opinion regarding the admissibility of evidence in a medical malpractice case. In the case, Rock v. Crocker, the appellate court held that there is a very specific manner in which lower courts should approach questions of evidence admissibility, and since the court below applied the law in the wrong manner, the case was remanded to give the lower court the opportunity to do so correctly.

The Facts of the Case

Crocker, the plaintiff, had ankle surgery performed by the defendant in 2008. Shortly after the surgery, the defendant advised Crocker he could put weight on his ankle without a problem. However, Crocker did not put weight on the ankle and continued to allow it to heal. Just a few months later, however, Crocker required an additional surgery because the defendant allegedly failed to fuse all the necessary bones during the first surgery. Upon hearing this, Crocker filed a medical malpractice lawsuit against the defendant.

At trial, Crocker presented an expert who testified that the defendant was negligent in failing to use enough screws to connect the bones and also in advising that Crocker can put weight on his ankle too early after the surgery. However, the expert also testified that these failures did not cause any injury to Crocker. The plaintiff acknowledged that the expert’s testimony did not prove causation – i.e., that the defendant’s negligence resulted in his injuries – but argued that it was relevant to the defendant’s general competence as a surgeon. The court agreed and allowed the expert’s testimony to be considered.