Rebuttal Expert: Women First v. Harris 3
The Baltimore Medical Malpractice Lawyer Blog delves into crucial legal issues in Maryland medical malpractice cases. This post specifically examines the circumstances under which a plaintiff can summon a rebuttal expert witness. The case under scrutiny is the Court of Special Appeals reported opinion in Women First Ob/Gyn Assocs. LLC v. Harris, 232 Md. App. 647 (2017). In part 1 of the post on this case, I dissected the issue of employer liability when the employee has been released. In part 2, I tackled the problem of how a circuit court can alter a dismissal that has been entered.
Factual Background
The plaintiff filed a complaint for medical malpractice in the Circuit Court for Montgomery County. The claim was against an OB/GYN and her practice group. It alleged the doctor negligently performed a laparoscopic hysterectomy and injured a ureter. (Op. at 1).
The plaintiff’s experts testified that the doctor breached the standard of care by failing to protect the ureter during the hysterectomy. The doctor used a harmonic scalpel to cut and cauterize the uterine artery and caused a ureter injury where the artery crosses over it. (Id. at 39-40).
The defense called an expert who opined that the injury was delayed onset, caused by disruption of blood supply to the ureter, which would have been undetectable at the time of the procedure. The defense then sought to call two additional experts who testified in deposition to the same blood disruption cause but now sought to blame the injury on a pyelogram that a urologist did after the surgery. (Id. at 40).
The plaintiff then moved to exclude the testimony, arguing that the defense had not disclosed it. However, the court denied the motion. (Id. at 41).
Rebuttal Expert
The plaintiff then sought to call the urologist as a rebuttal expert. His testimony was crucial as it was to testify that the defense witnesses had misread the pyelogram. The defense objected, arguing it was not a proper rebuttal and the plaintiff had not designated the urologist as an expert. The circuit court, however, allowed the rebuttal. The urologist’s testimony that the pyelogram did not cause any injury was a pivotal moment in the case. (Id. at 42-43).
The jury favored the plaintiff and awarded $426,079 in damages. The group, however, appealed. (Id. at 7-8).
The first two issues dealt with the dismissal of the doctor and the effect that had on the case against the medical group. In a case of first impression, the CSA first held that dismissal with prejudice against an agent does not necessarily make the vicarious liability claim against the employer nonviable. When no consideration is given, and the merits against the agent have not been litigated, vicarious liability is not extinguished. (Id. at 32).
The CSA then found that the circuit court correctly used its revisory power under Rule 2-602(a)(3), and the parties waived the requirement in Rule 2-601 for a separate document.
Court of Special Appeals
On appeal, the defense then argued that the rebuttal was improper because it did not rebut any new matter that the defense raised in its case-in-chief. The defense’s testimony on the pyelogram involved the same issues of location and causation of injury as the plaintiff had addressed in her case. In addition, the plaintiff had not designated the urologist as an expert. (Id. at 44).
The CSA noted that it is within the trial court’s discretion to admit rebuttal expert testimony. Rebuttal evidence specifically is any competent evidence that explains, is a direct reply to, or contradicts material evidence introduced by an accused in a criminal case or by a party in a civil action. Although rebuttal evidence is a matter of right, it must respond to a new matter for evidence to be admissible as a valid rebuttal. (Id. at 45).
The defense’s testimony at trial that the pyelogram caused the injury and that the injury was in a different location than previously identified were significant changes from the deposition testimony and constituted new matters. The rebuttal testimony explained how these new matters resulted from misreading the pyelogram. In addition, the testimony did not repeat anything from the plaintiff’s case. Accordingly, it was a proper rebuttal testimony. (Id. at 46).
In addition, it was within the circuit court’s discretion to allow the urologist to testify in rebuttal even though the plaintiff hadn’t designated him as an expert. His testimony was crucial as it appropriately responded to the defense’s failure to disclose the pyelogram testimony earlier. (Id. at 46-47).
Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Rebuttal Experts
The Court of Special Appeals’ reasoning was sound. The new matter requirement for rebuttal testimony includes new opinions. The defense injected new opinions in its case-in-chief that had not been disclosed before, including in discovery.
The rebuttal expert testimony was particularly illuminating. Two defense witnesses had given testimony interpreting a pyelogram. The plaintiff called the doctor who performed the test to explain how the defense witnesses misunderstood the test results in forming their conclusions. This testimony was critical for the jury to consider. Without it, the jury would have had an incomplete picture to evaluate the medical malpractice claim.
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.