Preserving Issues for Appeal: Asplundh v. Metzger

The Maryland Medical Malpractice Lawyer Blog includes other personal injury cases that have issues that also arise in medical malpractice cases. The following case is a multi-vehicle accident case that featured the failure to preserve issues for appeal. The Appellate Court of Maryland issued an unreported opinion in Asplundh Tree Expert, LLC v. Metzger (January 12, 2024). 

After an 8-day trial, the jury found that the defendant’s employees were liable and awarded damages exceeding $2.1 million. The defendant then appealed. (Op. at 1, 4). 

Issues not Preserved for Appeal

The defendant argued on appeal that the circuit court improperly allowed the plaintiff’s accident reconstruction expert to testify to matters he had not previously disclosed. Asplundh also argued that the plaintiff had failed to timely provide an updated damages report that its expert relied on. (Id. at 5).

The plaintiff argued that the defense had not preserved the issues for appeal. Maryland Rule 8-131 requires states that the appeals court will not review any issue not raised in the trial court. To raise the issue relating to the admission of evidence, the party must object when the evidence is offered or as soon as grounds become apparent. Maryland Rule 2-517(a).

The defense had filed motions in limine to exclude the damages report and the testimony of the accident reconstructionist. The circuit court denied the motions. However, the defense did not object when the plaintiff introduced the evidence. As a result, the Appellate Court held that the defense had failed to preserve the issues for review. (Id. at 7-8, 10). The defense’s motion to strike the evidence was not sufficient to preserve the issues for appeal because it should have been apparent to the defense at the time of the questions that objections were required. (Id. at 12).

Issues Preserved for Appeal: Jury Instructions

The defense claimed that the trial court erred in instructing the jury on vicarious liability for its employees and caused prejudice and confusion because the verdict sheet did not list the employer. (Id. at 13). The Appellate Court rejected that argument. It noted that the parties had mentioned the corporate defendant throughout the trial. Still, it would not be on the verdict sheet. As a result, instructing the jury on vicarious liability clarified the roles and relations between the parties. (Id. at 18).

Cross-Examination of Plaintiff’s Accident Reconstructionist

In another issue that was preserved for appeal, the defense argued that the trial court erred in limiting its cross-examination of the plaintiff’s accident reconstructionist on points from his previous report. The plaintiff did not discuss that report on direct examination. (Id. at 18-19). The Appellate Court ruled that the circuit court was within its discretion to limit the cross-examination to the direct examination topics. Also, the fact that the expert made changes in his report to reflect additional received information is standard and did not go to the expert’s credibility. (Id. at 20).

Reference to Dismissal of Other Lawsuit

The defense also contended that the trial court erred in granting the plaintiff’s motion in limine to exclude reference to another lawsuit. In that lawsuit, the plaintiff had claimed that different defense employees had caused the accident. The plaintiff dismissed that suit. The defense argued that it constituted admissible prior inconsistent statements. (Id. at 21).

The trial court noted that the plaintiff’s counsel had filed the other suit after the defense had disclosed the existence of another vehicle close to the statute of limitations. The plaintiff’s counsel dismissed the case without any discovery occurring. There was no evidence that the plaintiff believed the allegations to be true. Under these circumstances, the Appellate Court found that the trial court did not abuse its discretion in excluding the evidence. (Id. at 25).

Commentary By the Baltimore Medical Malpractice Lawyer

Preserving Issues for Appeal

Failing to preserve an issue for appellate review regularly comes up in appeals. At the trial, the rules often require counsel to object when the other lawyer asks the question. This requirement can put the lawyer in a position of having to object immediately after the question and before the witness starts to answer. Failure to object in that instant can waive the issue for appeal.

As a result, a waiver can happen even when lawyers are attentive and prepared. There are some things the lawyer can do to minimize the instances of waiver. Firstly, the lawyer can plan by making notes about the specific subjects that may require objections and have them in front while listening to the direct examinations by the other lawyer.

Having Help

Secondly, there is great value in having another lawyer at the trial table with you. When a lawyer is not examining the witness, they should have the list of objectionable areas in front of them and be listening for objectionable questions, ready to prompt the other lawyer to object if needed to preserve the issue for appeal..

Having another lawyer at the trial table may not always be possible. In that instance, try to have a paralegal there to do the same thing.

In deciding whether to object, err on the side of objecting to esure the issue is preserved for appeal. An overruled objection is no big deal. 

None of the issues on appeal presented the court with a close call. Sometimes, the verdict amount – here, over $2 million- explains an appeal. The defense came up with what it could to try to overturn the verdict. The plaintiff gets 10% post-judgment interest for having to wait on payment. CJP 11-107.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.