Hill v. Wilson

HOLLANDER, Judge,

dissenting.

I respectfully dissent from the majority opinion regarding Issue II. There, the Court upholds the trial judge’s ruling that precluded appellants from offering evidence to establish that, at the relevant time, appellee’s wheelchair was “broken” and caused an ulcer on the lumbar area of appellee’s back.

At trial, the parties disputed the location and condition of the ulcer on appellee’s back when he went to the emergency room at Good Samaritan Hospital on August 30, 1994. They also disagreed about the number, location, and condition of the ulcers on Mr. Wilson’s back when he returned to the hospital on September 14,1994.

Mr. Wilson contended that, on August 30, 1994, when he was treated by Dr. Hill at the emergency room, he had an infected ulcer on his back, but Dr. Hill misdiagnosed him as suffering from a urinary tract infection. Two weeks later, on September 14, 1994, Mr. Wilson was admitted to the hospital because his condition had worsened. Dr. Joseph Orlando, who had treated Mr. Wilson in the past, examined appellee on September 16, 1994, and was offered by the defense as both a fact witness and as an expert.

*498Appellants maintained that Dr. Hill correctly diagnosed the urinary tract infection on August 30, 1994. They also sought to establish that the ulcer on appellee’s back on that date was located in the sacral area, and that after August 30, 1994, appellee developed a second ulcer in the lumbar area of his back. According to appellants, it was the lumbar ulcer that became infected and ultimately led to the amputations. Additionally, the defense sought to show that the lumbar ulcer was caused by appellee’s wheelchair, which allegedly had a metal rod protruding from the back that penetrated Mr. Wilson’s lumbar area, enabling bacteria to invade his body.1

In analyzing Issue II, it is important to review the facts that culminated in the trial court’s ruling.

FACTUAL SUMMARY

Appellants disclosed in answers to interrogatories that they intended to call Dr. Orlando as both a fact witness and an expert witness as to causation. To be sure, appellants’ disclosure did not reveal Dr. Orlando’s position that the lumbar ulcer was caused by appellee’s defective wheelchair. Based on the content of the interrogatory answer, however, appellee noted Dr. Orlando’s deposition.

At his deposition, Dr. Orlando stated that appellee had an infected lumbar ulcer when he examined him on September 16, 1994. Moreover, he opined that the lumbar ulcer was caused by the transverse bar located on the back of appellee’s wheelchair. As footnote 3 of the majority opinion reveals, appellee’s counsel did not pose any follow-up questions to Dr. Orlando concerning the condition of the wheelchair, even after Dr. Orlando “invite[d]” appellee’s counsel to look at the wheelchair, stated that he was “astounded” when he saw its condition, and claimed that Mr. Wilson “rode” the metal bar on the back of the wheelchair “right into his back.... ”

*499At trial, appellee’s counsel expressed concern to the court that Dr. Orlando’s trial testimony might be “somewhat different and more expansive than the testimony he offered under oath at deposition,” based on a “hint” she received from the defense lawyer.2 Appellee’s attorney also argued that any deviation in testimony would violate “fundamental rules of fairness as well as the rules of discovery....” In response, the court asked appellee’s counsel about the “area” that she thought might be “explored that was not dealt with in deposition.” Appellee’s attorney replied: “I don’t know. Your Honor, that is my problem. I have no idea what it is except [defense counsel] has hinted very broadly that there will be additional different testimony other than that covered at deposition.”

Based on defense counsel’s response to questions posed by the court, the judge initially did not restrict the testimony of Dr. Orlando. When appellants’ counsel posed her questions to Dr. Orlando during his direct examination, he responded on several occasions by describing appellee’s wheelchair as “broken.” Appellee’s attorney did not immediately object to the questions that prompted those responses, nor did appellee’s counsel move to strike the answers. Because of my view of the importance of the early testimony of Dr. Orlando, which came into evidence without objection, it is set forth below:

[COUNSEL FOR APPELLANTS]: Okay. I want you to tell the jury, if you will, what caused that upper [lumbar] ulcer. What caused this ulcer at this level that you’ve never seen in your 25 years of practice?
[DR. ORLANDO]: Well, not only had I never seen it, but I don’t think anybody on the chart had ever seen an ulcer in that area. And when I first saw [appellee] on the afternoon of September the 16th, 1994, and I examined this area, and examined [appellee], and examined his feet, and made note *500of those ulcers, I was perplexed. I could not understand why he had a lumbar ulcer....
His wheelchair was by the side of his bed, and I turned around, and I looked at his wheelchair. And I was literally astounded. I mean, I really was. And I said to [appellee], “Kevin, have you been sitting in this wheelchair? This is the reason why you’ve got this ulcer back here.” I even said to him, “I’ve never seen anything in the lumbar area like this. HowM you get”—
[COUNSEL FOR APPELLANTS]: What did you see in Mr. Wilson’s wheelchair?
[DR. ORLANDO]: The back of his wheelchair was broken back. He had a sports wheelchair. It has a lumbar support. When you’re in — if you ever sit in a bucket seat in a car, it has a support. It helps to support your lumbar area. And it presses against your lumbar area.
The back of his wheelchair was broken. The lumbar support, which I think was one bar, was now broken in the middle. And the stainless steel bar, which was about the size of a — a little bigger than a pencil, but maybe not quite as big as my little finger — was squished forward about an inch to maybe even — well, let’s say an inch, but it could have been more. And the astounding thing was the vinyl or leather that was over it was not even over it. It had pushed right through the vinyl.
So he had been in that wheelchair for seven days, or ten days, or so, and it was broken. And it had been pushing— that bar had been pushing right here over that period of time....
E.1238-1240 (Emphasis added).
* * *
[COUNSEL FOR APPELLANTS]: So the sacral ulcer was not infected. What ulcer was infected?
[DR. ORLANDO]: The first ulcer, the lumbar ulcer.
[COUNSEL FOR APPELLANTS]: The one up here? (Indicating.)
*501[DR. ORLANDO]: Yes.
[COUNSEL FOR APPELLANTS]: That was caused by the wheelchair?
[DR. ORLANDO]: A little bit lower. Right there.
[COUNSEL FOR APPELLANTS]: The one caused by the wheelchair?
[DR. ORLANDO]: Right. You have to remember though that iliac crest is protecting everything below that so when that bar was coming in, it had to come above the iliac crest. You’re still a little bit too high. Just take a pencil and point—
[COUNSEL FOR APPELLANTS]: Why don’t you show them. I’m not an—
THE COURT: Doctor, describe for the record where you’re pointing exactly.
(The witness approached Defense Exhibit Number 9.)
[DR. ORLANDO]: Yes. As I mentioned before, the iliac crest protects the top part of the sacrum. And also there’s a fair amount of tissue in this area. That helps to protect the lumbar area. So you need something sharp to get through here, and his [wheelchair] bar on his right side had come across here, and it was above the level of the ilium, and it was pressing right here. (Indicating.) It was right about at this level here.
E.1252-1253 (Emphasis added).
[DR. ORLANDO]: On the 80th of August, Mr. Wilson developed a pressure ulcer in this area from sitting in his wheelchair which is the prominent area in which sacral ulcers develop. When you’re lying in bed for a long time, the ulcers tend to develop more in this area. This is a low sacral ulcer. And it also involves the coccyx, which is this small bone down here. It’s called a sacral ulcer.
*502[COUNSEL FOR' APPELLANTS]: Let me stop you just for a second because I’m not sure that the jury can appreciate what the different body parts are.
E.1262.
[COUNSEL FOR APPELLANTS]: Doctor, please, if you will, what I’d like you to do is to express an opinion to a reasonable degree of medical probability as to what happened to Mr. Wilson.
[DR. ORLANDO]: That’s what I’m doing.
[COUNSEL FOR APPELLANTS]: I know. Go ahead.
[DR. ORLANDO]: Well, we know [the sacral ulcer] wasn’t infected because [appellee] said — Mr. Wilson said — there was no blood on the dressing. He also said that there was no foul odor. So those are two things that indicate to me that it wasn’t a deep ulcer, and that it wasn’t infected.
We also know that he came there because he had cloudy urine for one week’s duration, which is one of the Hallmark’s [sic] of a urinary tract infection, especially if it changed from the week before to that. So he was treated for a urinary tract infection, and he was sent home.
Somewhere subsequent to that, and according to Kevin’s deposition—
[COUNSEL FOR APPELLANT]: Mr. Wilson.
[DR. ORLANDO]: I’m sorry. According to Mr. Wilson’s deposition, and somewhere subsequent to that — strike what I said about subsequent — his wheelchair was broken when I saw it on the 16th [of September]. There was no—
[COUNSEL FOR APPELLEE]: Objection, Your Honor.
THE COURT: I’m going to sustain the objection.
E.1264-1265 (Emphasis added).

When counsel for appellee finally objected, she complained at the bench only about the factual basis for Dr. Orlando’s suggestion that appellee’s wheelchair broke sometime between appellee’s two hospital visits. She argued that Dr. Orlando *503was “factually ... suggesting that Mr. Wilson’s wheelchair was broken sometime between the 30th of August and the 14th of September. There has been no evidence of that.” Thus, although appellee’s attorney challenged the basis for Dr. Orlando’s knowledge as to when the wheelchair became broken, she did not dispute his assertion that the wheelchair was, in fact, broken.

Thereafter, the court raised, sua sponte, the issue of the broken wheelchair, stating: “I’m concerned about where you would like to go with this issue of this broken wheelchair.” Only then did counsel for appellee assert that she had “never heard about a broken wheelchair before [Dr. Orlando] took this witness stand.... He didn’t mention it at anytime under oath in his deposition. The first time I heard about it was here today.” The matter was discussed on several occasions during the trial, and appellee’s counsel later complained that she had been “sandbagged” because the defense “injected” a new issue in the case.

In its discussions with the attorneys, the court inquired: “Does the record indicate anything about the wheelchair being broken, or does the record indicate that his back was rubbing against a certain place in the wheelchair?” Appellee’s counsel informed the court that there was “no reference anywhere in the medical records to the wheelchair being broken,” and that Dr. Orlando did not so state at his deposition. Appellants’ attorney asserted that the medical records disclosed the defective condition of the wheelchair. She pointed to Dr. Orlando’s note in the medical records on September 16, 1994, as follows: “Extensive posterior lower trunk ulcer secondary to pressure from bar when sitting.” Further, on September 16, 1994, a “rehab” doctor wrote a note in the medical records, indicating that appellee had an ulcer caused by “problems secondary to undue pressure from the wheelchair frame.” In the court’s view, however, the reference to “secondary to the bar” was not the equivalent of stating that the wheelchair was broken.

Moreover, the court stated that testimony at the deposition about pressure to appellee’s back caused by a bar on the back *504of his wheelchair was not the same as testimony about a broken wheelchair. Rather, the court viewed the doctor’s reference to the bar at his deposition as “quite different” from any representation that the wheelchair was “broken,” and said it was not “fair warning whatsoever that the chair was broken.” Further, the court said that whether the wheelchair was broken constituted “a completely new element in this case that [is] rather critical.” The court reasoned: “If he testified that he saw the wheelchair in a condition that was not the appropriate condition, is one issue. But to testify that it was broken and the plaintiff used a broken wheelchair for an extended period of time, is altogether different.”

The defense attorney disagreed, claiming that, “from [her] perspective, in reading [Dr. Orlando’s] deposition, he did tell them that the wheelchair was broken.” She pointed to various portions of Dr. Orlando’s deposition testimony, consistent with the content of footnote 3 of the majority opinion. Appellants’ lawyer also maintained that it was not her “job” at the deposition to ask follow-up questions. Although the court expressly declined to determine “[w]hose job it was to pursue [the issue] during the deposition,” the judge stated that he was “absolutely surprised” and “actually shocked” that “neither side bothered to ask” additional questions to explore what it was about the bar or its condition that caused the lumbar ulcer. In addition, the court said: “Counsel, it’s easy to sit here after everything is said and done and second guess. But with the legal power in this courtroom, and for him to say that the bar caused the ulcer, I’m shocked that nobody said, ‘How?’ or ‘Why?’ ” Later, the court said:

And how this could not have been gone into on the deposition really surprises me. Once the doctor said in two locations in the deposition that the lumbar ulcer was caused because of the bar riding against Mr. Wilson’s back in the same position.
It would have seemed that both sides would have pursued this area a little further by asking how or why did it do this.... And the plaintiff would have wanted to know why in preparation for their case.

*505Moreover, the court reiterated: “When the doctor made several references to the bar, I’m actually shocked that neither side bothered to ask, ‘what about the bar doing this? Why did the bar do it? Or how did the bar do it?’ ”

Additionally, appellants’ counsel insisted that she was not attempting to establish that appellee was contributorily negligent in using the defective wheelchair. Instead, she claimed that the condition of the wheelchair was relevant to the issue of causation of the ulcer on the lumbar area of appellee’s back.3 Accordingly, appellants’ counsel indicated to the court that she had no opposition to an instruction to the jury to the effect that Mr. Wilson’s use of a broken wheelchair was not evidence of contributory negligence.

Out of the presence of the jury, the court also questioned Dr. Orlando about his testimony. The doctor advised the court that he thought he had testified at his deposition that the wheelchair was broken. The following colloquy is relevant:

THE COURT: You’ve never offered this opinion that the wheelchair was broken either in your deposition or in any of your discussions; is that correct?
[DR. ORLANDO]: Well, no, I did, sir. It’s in my deposition. As a matter of fact, I think in my exact words it says, “I was astounded when I looked at the wheelchair.” And the word “astounded” is in my deposition. Because that’s the reason Mr. Wilson got his lumbar ulcer. I was quite emphatic about that.

The court concluded that appellants’ conduct contravened the purpose of discovery, stating:

The purpose of discover[y] is so we do not have situations like we’re having right now.
*506So on one hand, to say that the wheelchair caused the problem is one thing. To say that Mr. Wilson, who has knowledge about this condition, knowingly sat in a broken wheelchair is a completely different situation.... Because it is a very critical issue in [appellee’s] case that [appellee’s counsel] was not apprised of in discovery.
To say that something is secondary and something results from pressure is quite different from saying someone sat in a broken wheelchair knowingly and let this happen. It’s quite different.

Ultimately, the court ruled: “There will be no further testimony in this case whatsoever that the chair was broken.” In precluding appellants from offering evidence that the wheelchair was broken, the court found that the defense had not adequately disclosed that information at the deposition of Dr. Orlando. The court reasoned: “I don’t see how anyone is going to be able to infer from this [deposition] testimony that the bar caused this problem. I have no idea how someone can infer that the chair was broken from that testimony.”

Nevertheless, the judge instructed Dr. Orlando that he could “comment that the bar rubbed [appellee’s] back causing the lumbar ulcer. But you cannot say under any circumstances that the chair was broken.” Thereafter, in its instructions to the jury, the court said: “[Y]ou are instructed that there is no evidence in this case that Mr. Wilson’s wheelchair was broken, and you are not to consider any evidence of this nature or that nature in your deliberations whatsoever.”

DISCUSSION

In the many colloquies that the trial court had with counsel concerning the wheelchair, it is clear that the trial court did not consider Dr. Orlando’s description of the condition of the wheelchair at his deposition the equivalent of his claim at trial that the wheelchair was broken. The majority concludes that the trial judge “was not clearly erroneous in finding that Dr. Orlando’s deposition testimony about the condition of appel-*507lee’s wheelchair ‘does not connote that the wheelchair was broken.’ ” In my view, under the circumstances attendant here, the harsh sanction imposed by the court amounted to an abuse of discretion.

At his deposition, Dr. Orlando disclosed that he saw the wheelchair, and he provided his opinion that the wheelchair caused appellee’s lumbar ulcer. It was also apparent from the doctor’s testimony that he believed the wheelchair was defective, although he did not describe it as “broken.” In light of the doctor’s assertions, it was incumbent on appellee’s counsel to explore, pursue, and develop the doctor’s contentions. Yet, even after Dr. Orlando remarked that he was “astounded” when he “saw the wheelchair,” and stated that Mr. Wilson “rode” the bar into his back, plaintiffs counsel never pursued the matter. Therefore, if his attorneys were not more fully aware of the defense position, it is not because they were “sandbagged.” To the extent that appellee did not know specifically that appellants claimed the wheelchair was “broken,” it is because appellee’s attorney at the deposition never asked even one follow-up question to explore Dr. Orlando’s many comments about the wheelchair. Thus, appellee’s claim at trial of unfair surprise was unfounded.

A deposition “is the most powerful and complete means of discovery.... ” Paul V. Niemeyer & Linda M. Schuett, Maryland Rules Commentary, 270 (2d ed.1992) (hereinafter, “Niemeyer & Schuett”). Through a process of probing questions, an attorney who conducts a deposition is ordinarily able to “discover” information relevant to the case. Certainly, a deponent must respond accurately to questions that are asked, and not hide information responsive to a particular question. But, it falls squarely on the lawyer conducting the deposition to pose the proper questions to ascertain relevant information that may prove vital to the case, and to gain an understanding of an opponent’s theory, contentions, and factual predicates. That did not happen here.

Although Dr. Orlando never used the word “broken” at his deposition, the witness’s failure to use that word is not, *508standing alone, fatal to the use of that word at trial, considering that neither deposition nor trial testimony of a witness is supposed to be scripted. What is important is whether the witness truthfully and accurately answered questions that were properly posed. There is no suggestion here that the witness willfully withheld information responsive to the lawyer’s questions. Dr. Orlando disclosed adequate information about the condition of the wheelchair to have prompted appel-lee’s attorney to inquire further. Yet, appellee’s counsel never asked any questions about the wheelchair. Therefore, Dr. Orlando’s characterization at trial of a “broken” wheelchair was not the kind of unfair deviation from his deposition testimony that warranted such a harsh sanction.

Appellee’s reliance on Bartholomee v. Casey, 103 Md.App. 34, 651 A.2d 908 (1994), cert. denied, 338 Md. 557, 659 A.2d 1293 (1995), a lead paint case, is misplaced. Indeed, that case suggests to me that the court below abused its discretion. There, the plaintiffs’ evidence at trial squarely contradicted their answers to interrogatories. As a result, we concluded, inter alia, that the court abused its discretion “by admitting evidence that did not conform to the plaintiffs’ discovery responses.” Id. at 45, 651 A.2d 908.

In Bartholomee, only four days before trial, in a case that had been pending for more than four years, the plaintiffs filed affidavits alleging for the first time that the property owner knew of peeling lead paint on the exterior of the property in issue, that the owner’s attempted abatement was ineffective, and that the dangerous condition persisted even after the attempted abatement. Those averments conflicted with the plaintiffs’ answers to interrogatories. In light of the belated disclosure, the defense unsuccessfully sought a postponement or, alternatively, a ruling barring evidence relating to the abatement efforts and the condition of the exterior of the house. Id. at 47, 651 A.2d 908.

On appeal, we recognized that “[a] trial court clearly has the power to exclude evidence willfully withheld by one party in violation of properly filed discovery requests.” Bartholomee, *509103 Md.App. at 48, 651 A.2d 908 (emphasis added); see Md. Rule 2-433(a); Starfish Condominium Ass’n. v. Yorkridge Serv. Corp. Inc., 295 Md. 693, 712, 458 A.2d 805 (1983) (recognizing court’s discretion to exclude testimony of expert witness who was not identified in response to interrogatory request, even if failure to disclose “was not willful or contumacious.”). We also distinguished in Bartholomee a failure to supply information properly requested in an interrogatory, evident early in a case, which could be “easily remedied by an order compelling disclosure” under Md. Rule 2-432(b), from a belated disclosure on “the eve of trial.” Bartholomee, 103 Md.App. at 48, 651 A.2d 908; see State Roads Comm’n v. 370 Ltd. Partnership, 325 Md. 96, 109, 599 A.2d 449 (1991) (upholding judge’s discretion to bar expert testimony because expert was not disclosed in answers to interrogatories, no information as to expert’s opinion was provided before trial, and proposed testimony was not based on what occurred in courtroom; witness could have formed opinion based on information available before trial and opponents were unfairly denied “meaningful pretrial discovery.”).

As to the court’s failure to exclude evidence regarding the exterior of the house, we found no error because the Health Department’s notice had disclosed that the exterior paint contained lead and was flaking. Bartholomee, 103 Md.App. at 49, 651 A.2d 908. Nevertheless, we concluded that the trial court abused its discretion by admitting evidence concerning the abatement method and post-abatement condition of the property, in light of previous statements by the plaintiffs in discovery, which we characterized as “tantamount to a concession” that the abatement was satisfactory and that the defendant had fulfilled any duty owed to the plaintiffs. Id. at 50, 651 A.2d 908. We focused on the disputed evidence, which “flatly contradicted” the answers to interrogatories and constituted “the kind of unfair surprise that careful adherence to the discovery process was intended to avoid.” Id.

This case is altogether different from Bartholomee and the other cases cited above. Here, there is no contention that appellants failed to make timely disclosure of their expert or *510their claim that the lumbar ulcer was caused by the condition of the wheelchair. Nor did they ever “flatly contradict” at trial the position advanced at the deposition. The semantic difference in the deposition and trial testimony was, at worst, a difference of degree. Dr. Orlando clearly stated at his deposition that the condition of the wheelchair caused the lumbar ulcer. If appellee had explored that assertion, and the doctor then failed to expand on his testimony in such a way as to convey more clearly that the wheelchair was “broken,” I might agree with the majority. That exploration never occurred, however. Therefore, what we said in Bartholomee should apply here: “ ‘A party seeking discovery may not expect his opponent to construe discovery requests as broadly as possible, in essence, to volunteer information beyond the request, on pain of preclusion of evidence at trial as a discovery sanction.’ ” Bartholomee, 108 Md.App. at 49, 651 A.2d 908 (quoting John A. Lynch, Jr. & Richard W. Bourne, Modem Maryland Civil Procedure, § 7.8(c), at 597 (1993)).

Moreover, in my view, appellee waived his claim of error because of an untimely objection at trial. Notwithstanding the concern of appellee’s counsel that Dr. Orlando’s trial testimony might differ from what Dr. Orlando had said at his deposition, appellee’s lawyer did not object to Dr. Orlando’s testimony that the wheelchair was broken until after he had so testified on several occasions. Thus, the majority is plainly wrong in stating that, during Dr. Orlando’s direct examination at trial, appellee’s counsel objected the first time that the witness used the word “broken.” Interestingly, if, as appellee argues, the testimony of Dr. Orlando regarding the broken condition of the wheelchair was such a surprise, and was materially different from that which had been offered by Dr. Orlando at the deposition, surely appellee’s skilled and experienced attorney would have noticed and would have promptly objected.

Based on some of the responses of appellant’s counsel to various questions posed by the court during the many discussions about the matter, the judge was understandably frustrated by what he perceived as defense counsel’s lack of *511candor and too much gamesmanship. I do not condone such conduct. Nevertheless, we should not lose sight of the totality of the situation. Appellee was placed on notice at Dr. Orlando’s deposition of the defense contention that the wheelchair was defective, and that its condition caused a lumbar ulcer. At the deposition, appellee’s attorney never pursued that contention by asking even a single follow-up question. Even after the deposition, I am not aware of any specific attempt by appellee to obtain clarification of the doctor’s testimony. Moreover, appellee initially failed to object to the repeated testimony of Dr. Orlando at trial that the wheelchair was broken. For these reasons, I believe the court abused its discretion when it barred appellants from pursuing the defense theory that the lumbar ulcer developed after appellee was seen at the emergency room on August 30, 1994, and was caused by appellee’s defective wheelchair.

Although the court indicated that it would permit Dr. Orlando to testify at trial as he had at his deposition, I cannot conclude that appellants were able adequately to present their defense. To reach that conclusion, I would have to overlook the court’s instruction to the jury, admonishing it not to consider any evidence that the wheelchair was broken. The jury was not necessarily able to distinguish between a “broken” wheelchair and a transverse bar on the back of the wheelchair that rubbed appellee’s back, especially if, as the defense argued, the deposition testimony was tantamount to an assertion that the wheelchair was broken. In effect, then, the jury was told to disregard the testimony as to the condition of the wheelchair, and appellants were put in an untenable position with respect to their defense.

Accordingly, I respectfully dissent.

. Above-the-knee amputations were required as a consequence of the severe infection surrounding the ulcer, as it occluded the blood supply to appellee's lower extremities.

. The attorney who conducted the deposition for appellee was not the attorney who expressed concern to the court about Dr. Orlando's anticipated testimony or who made the various arguments to the court about the trial testimony.

. As noted, the defense maintained that the lumbar ulcer did not exist when Mr. Wilson was first seen at Good Samaritan Hospital on August 30, 1994, and it developed thereafter as a result of the condition of the wheelchair.