De Bene Esse Depositions: Edwards v. Labbe
The Baltimore Medical Malpractice Lawyer Blog also discusses Maryland personal injury cases, which feature issues that also arise in medical malpractice cases. In this post, I discuss an evidence issue relating to the admissibility of de bene esse depositions. The case is the Appellate Court of Maryland’s December 13, 2024, unreported opinion in Edwards v. Labbe, No. 1676.
Factual Background
The plaintiff filed suit in the Circuit Court for Anne Arundel County arising from a car accident. The defense conceded liability, and then the court scheduled a trial for damages. (Op. at 1).
The plaintiff had designated two of his treating physicians as expert witnesses, an orthopedic surgeon and a pain specialist. The orthopedist would testify that the treatment was causally related and medically necessary. The pain specialist’s testimony would include the plaintiff’s cervical pain. The plaintiff noted and took the de bene esse depositions in the two weeks before the scheduled trial. (Id. at 2). De bene esse depositions are videotaped examinations of witnesses that a party plays at trial instead of calling the witness live.
During jury selection, defense counsel stated that they were objecting to the admission of the de bene esse depositions because the plaintiff’s counsel had failed to offer the doctors as experts during the depositions. (Id. at 3). The plaintiff conducted voir dire, but the defense did not have the opportunity for voir dire since the plaintiff did not offset the witnesses as experts. (Id. at 3-4).
The plaintiff acknowledged that they did not follow the proper procedure. (Id. at 4). The court then excluded the depositions and granted the defense’s motion for judgment. The plaintiff appealed. (Id. at 1).
Appellate Court
The circuit court made two rulings relevant to the circumstances of this appeal. The court excluded the de bene esse depositions and also granted judgment for the defense. On appeal, the plaintiff only challenged the second ruling. (Id. at 5-6).
The parties disagreed on which rule the circuit court used to enter judgment. The plaintiff contended that it was 2-519(a), which provides for a motion at the close of evidence. The plaintiff argued that the motion was before the close of evidence and that the court prevented him from calling the experts as live witnesses. (Id. at 6). The defense argued that the court relied on Rule 2-501, the summary judgment rule. (Id. at 6-8).
Specific Rules
The Appellate Court observed that the court did not state the rule it relied on to enter judgment after excluding the de bene esse depositions. However, the Appellate Court held that the circuit court erred under either rule.
The court erred if it was a motion for judgment because it was not the close of evidence. If it was a summary judgment motion, the court erred because the defense did not submit a motion in writing as required by the rule. (Id. at 9).
The Committee Note on the amendment that added the written motion requirement to the summary judgment rule gave an example of how a defendant can address the exclusion of essential evidence:
“If the court were to exclude as inadmissible the testimony of a witness or a document that is legally essential to a party’s case, or some discrete aspect of a party’s case, the other party may move in limine to preclude further evidence, as being irrelevant. If such a motion is granted, a motion for judgment under Rule 2-519 would then lie.” (Id. at 11).
The Appellate Court also concluded that the circuit court’s ruling was not harmless. The parties were conducting jury selection when the defense made an oral motion for judgment. The plaintiff could not fully address the evidentiary issue and provide a considered response. (Id. at 13-14). The Appellate Court vacated the judgment and remanded the case for further proceedings. (Id. at 14).
Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on De Bene Esse Depositions
The Appellate Court’s analysis is solid. The Maryland Rules do not provide the circuit court the authority to do what it did when it did it. These Rules are for good reason. The defendant contended that certain evidence was not admissible. It was not the close of evidence. The plaintiff had yet to start their case.
Once the circuit court ruled on excluding the evidence, the plaintiff was entitled to consider the effect on their case and whether they could make adjustments to continue. These options include calling the experts as live witnesses, seeking a continuance, putting on the case without the experts, and possibly other options.
When the circuit court put the plaintiff on the spot to thoroughly analyze all of these potential scenarios and respond, the court did what the motion for summary judgment rule said was improper, and for a reason the rule stated it was inappropriate. The rule was amended to require written motions to avoid this surprise and deprivation of the ability to provide a considered response.
Waiver?
There is another aspect of this case that is interesting. I wonder if the plaintiff should have asserted that the defendant waived their objection to the admissibility of the de bene esse depositions. This strategic consideration adds an intriguing layer to the case. The Maryland rules, including Rule 2-416 (g), provide that the opposing party must assert objections at the de bene esse depositions to the same extent as if the examinations were at trial.
The circuit court’s opinion states that the plaintiff did not offer their witnesses as experts. The plaintiffs continued beyond the point at which that was supposed to happen and fully examined the experts. Apparently, the defense did not object to the plaintiff’s failure to offer the witnesses as experts.
If the plaintiff had raised at trial the defense’s failure to object, the court should have found a waiver of the objection. The defense should not be allowed to save that objection for a “gotcha” moment at trial. If the defense had objected at the depositions, the plaintiff obviously could have cured it in the depositions.
A successful waiver argument would have allowed the plaintiffs to proceed with introducing de bene esse depositions at trial, which the defense fully participated in and could have made any objection they believed was warranted.
Other Case
Scott v. Universal Protection Service, LLC, Appellate Court of Maryland unreported opinion (Oct. 20, 2023): Court upheld denial of motion to exclude expert’s additional opinions in de bene esse deposition to give update on plaintiff’s condition.
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.