The Maryland Court of Appeals recently held that trial court didn’t err in admitting Petitioner’s post-accident medical treatment records under Maryland Rule 5-703. The Court concluded that “disclosed” under Maryland Rule 5-703(b) means that evidence is admissible if it satisfies four elements set forth in the rule.
Such evidence may, in trial court’s discretion, be disclosed to the jury to explain factual bases for the expert’s opinion. Here, the medical records satisfied the four elements of the rule because they were trustworthy, unprivileged, reasonably relied upon by Respondent’s expert in forming his opinions, and necessary to illuminate his expert testimony. The Court of Appeals also concluded that, even if disclosure, i.e., admission, of medical records under Rule 5-703 was an error, the error was harmless, as Petitioner failed to demonstrate that she was prejudiced by admission of medical records or their use at trial.
Judge Shirley M. Watts wrote the opinion of the Maryland Court of Appeals, the state’s highest court. She wrote that in Maryland, it’s well established that “[a]n expert may give an opinion based on facts contained in reports, studies, or statements from third parties, if the underlying material is shown to be of the type reasonably relied upon by experts in the field.” This Court has stated that “the underlying reports, data, or statements themselves may be admitted into evidence for the purpose of explaining the basis of the expert’s opinion.” Rule 5-703(b) provides, in pertinent part, that, “[i]f determined to be trustworthy, necessary to illuminate testimony, and unprivileged, facts or data reasonably relied upon by an expert pursuant to section (a) may, in the discretion of the court, be disclosed to the jury even if those facts and data are not admissible in evidence.”
Petitioner was riding in an SUV driven by her son. While stopped, they were rear-ended by a vehicle driven by Respondent. EMTs responded to the scene, but Petitioner didn’t seek medical treatment. She later went to an emergency room complaining of lower back pain and some pain in her left forearm. A week after the accident, she sought more medical treatment.
Petitioner sued Respondent for negligently operating her motor vehicle and causing the injuries. Respondent’s counsel offered into evidence three medical records that their medical expert, an orthopedic surgeon, relied upon in forming his opinion. Petitioner’s counsel objected to the admission of those medical records, but the trial court overruled the objections and admitted the medical records into evidence.
According to Respondent’s medical expert, those medical records showed that Petitioner didn’t initially complain of abdominal pain and that both her doctors reported that her abdomen was normal. Respondent’s medical expert opined that, when the record was prepared almost two months after the accident, “it would be reasonable to conclude that if a patient had a problem referable to those areas, it would have been evident by th[en], but it was not.”
The jury returned a verdict for Petitioner and awarded all her past medical expenses and non-economic damages. But Petitioner appealed, contending that the trial court erred in admitting the medical records. The Court of Special Appeals affirmed the trial court’s judgment and held that the trial court did not abuse its discretion in admitting the medical records into evidence under Maryland Rule 5-703. The Court of Special Appeals concluded that the medical records satisfied the requirements for disclosure under Rule 5-703(b) because the medical records were not privileged, were reasonably relied upon by Respondent’s expert, were sufficiently trustworthy, and were necessary to aid the jury in understanding his opinion.
The Court of Special Appeals explained:
There is no significant difference between disclosure and admission of a writing under [Maryland] Rule 5-703 because to be able to use the writing to assess the credit, if any, to be accorded the opinion of the expert witness who relied upon it, the fact finder must be able to read the document, not just glance at it in passing. What is significant is that the writing is not to be used substantively (unless otherwise admissible for its substance). It is for that reason that the rule directs that, “upon request, the court shall instruct the jury to use the facts and data relied upon by the testifying expert only for the purpose of evaluating the validity and probative value of the expert’s opinion or inference.”
That court noted that any issue with how the jurors might have used the reports was based on Petitioner’s failure to request a limiting instruction under Rule 5-703(b). If she’d done so, the court would’ve been required to instruct the jurors not to use the medical reports substantively—the very concern she raised on appeal. Thus, the Court of Special Appeals found that her failure to request a limiting instruction was a waiver of this issue.
Petitioner argued that the records were otherwise inadmissible documents admitted for the truth of the matters asserted therein, and, as such, violated the hearsay rule. Petitioner asserted that disclosure under Rule 5-703(b) doesn’t mean that documents relied upon by an expert that are otherwise inadmissible are admissible into evidence or permitted to be taken to the jury room during deliberations. Petitioner maintained that disclosure isn’t comparable to admission for purposes of Rule 5-703(b). Instead, she argued that under the rule, it means that documents that an expert relies upon may be discussed in the presence of the jury or, at most, the jury may review the documents during the expert’s testimony. Petitioner argued that, from a public policy standpoint, if the trial court’s action is not determined to be error, then a trial court could admit into evidence any document that is otherwise inadmissible simply because an expert relies upon the document.
Respondent said that, for purposes of Rule 5-703, there’s no real distinction between disclosing and admitting a document, and that the rule provides a trial court with discretion not only as to whether to disclose a document to the jury, but also as to how that document is to be disclosed. Respondent asserted that Petitioner waived the ability to challenge how the jury used the medical records. Respondent contended that the medical records were admissible and satisfied all the requirements of the rule because they weren’t privileged, were reasonably relied upon by their expert in forming his opinion, trustworthy, and necessary to illuminate his expert testimony.
Petitioner contended that Rule 5-703’s plain language distinguishes between disclosure and admissibility, by use of the word “disclosed.” But the Court of Appeals stated that “it has been the practice in this jurisdiction for some years to permit an expert to express his or her opinion upon facts in the evidence which he or she has heard or read, upon the assumption that these facts are true.” Maryland Rule 5-703(a) codifies this, “permitting an expert to base his or her opinion on first-hand knowledge, hearsay, or a combination of the two.”
Here, Judge Watts and the Court of Appeals held that the trial court didn’t err in admitting the medical records into evidence under Maryland Rule 5-703. Specifically, the Court of Appeals conclude that “disclosure” means that evidence is admissible under Maryland Rule 5-703(b) where the evidence satisfies Rule 5-703(b), and that such evidence may, in a trial court’s discretion, be disclosed to the jury to explain the factual bases for an expert’s opinion.
Judge Watts examined the plain language of Rule 5-703(a), which provides that, so long as facts or data are “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject,” an expert’s opinion may be based on such facts or data, regardless of whether the facts or data would “be admissible in evidence.” In other words, she said that an expert may rely on both admissible or otherwise inadmissible facts or data in forming his or her opinion, provided the facts or data are the kind that experts in that particular field would reasonably rely upon in forming opinions. However, as Rule 5-703(b) provides, “[u]pon request,” the trial court shall instruct the jury that such facts or data are disclosed, or admitted, not as substantive evidence, but instead “only for the purpose of evaluating the validity and probative value of the expert’s opinion or inference.” The Court stated that it was “incumbent upon the party who would like that point made clear to the jury to request a limiting instruction.”
The judge went on to explain that Rule 5-703(b) refers to the term “disclosed” to the jury, and not to the term “admitted” with respect to facts or data reasonably relied upon by a testifying expert. But the plain language of the rule and the use of the term “disclosed,” don’t distinguish between “disclosure” and “admission” such that “disclosed” doesn’t mean “admitted” for purposes of the Rule where the four elements of Rule 5-703(b) are satisfied. Rather, the Court of Appeals agreed with the Court of Special Appeals that “disclosure” of facts or data reasonably relied upon by an expert witness means “admission” of the information at issue provided that the four elements of the Rule were fulfilled.
The judge found that nothing in the plain language of Rule 5-703(b)—i.e., the use of the word “disclosed”—prohibits the documents at issue from being given to the jury just as if the documents had been admitted into evidence. It was clear that the medical records satisfied all elements of Rule 5-703(b). The judgment of the Court of Special Appeals was affirmed.
Lamalfa v. Hearn, 2018 Md. LEXIS 50 (Md. Ct. App. February 2, 2018)