A recent holding of the Court of Special Appeals of Maryland is of significance to companies defending personal injury lawsuits—particularly those where the nature or extent of a plaintiff's alleged injuries is in dispute. In Lamalfa v. Hearn, No. 87, Sept. Term 2016 (Md. Ct. Spec. App. June 28, 2017), the Court of Special Appeals affirmed a trial judge's decision to admit copies of four of the plaintiff's medical records into evidence during the testimony of the defendant's expert witness, pursuant to Maryland Rule 5-703(b). The Rule 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 . . . may, in the discretion of the court, be disclosed to the jury even if those facts and data are not admissible in evidence."
The plaintiff, Ms. Lamalfa, alleged that the defendant, Ms. Hearn, was negligent in causing a collision with a vehicle in which Ms. Lamalfa was riding in October 2011. Ms. Lamalfa further alleged that she suffered various injuries as a result of the collision, including an epigastric hernia for which she underwent surgery in March 2012 (Ms. Lamalfa previously had surgery for the same type of hernia many years before the collision) and a rotator cuff tear in her right shoulder for which she underwent surgery in 2015.
During the defense case-in-chief, Ms. Hearn called an orthopedic surgeon, Dr. Halikman, as an expert witness. Dr. Halikman opined that Ms. Lamalfa did not suffer a right shoulder injury as a result of the collision and that it was not likely that she suffered trauma to her abdomen as a result of the collision either. In explaining the bases for his opinions, Dr. Halikman referenced records from four of Ms. Lamalfa's visits to healthcare providers in the days and weeks following the collision, which reflected that Ms. Lamalfa did not complain of right shoulder pain or abdominal pain during those visits.
During Dr. Halikman's testimony, Ms. Hearn's attorney moved to admit the four medical records. Ms. Lamalfa's counsel did not object to Dr. Halikman testifying to the content of the medical records, but objected to the admission of the records into evidence on the grounds that they constituted inadmissible hearsay and that it would be prejudicial for the jury to have some, but not all, of Ms. Lamalfa's medical records available to review during deliberations. The trial judge overruled the objections, and Ms. Lamalfa's counsel did not request a limiting instruction as to the jury's use of the records.
Ms. Lamalfa prevailed on a motion for judgment as to Ms. Hearn's negligence at the close of the evidence, but the case was submitted to the jury on the issue of damages. The jury awarded Ms. Lamalfa all of her past medical expenses ($9,926.05), but awarded only $650.00 of the $50,000.00 to $150,000.00 in non-economic damages for which she argued.
On appeal, the Court of Special Appeals rejected Ms. Lamalfa's argument that Maryland Rule 5-703(b) permits disclosure of records containing facts or data reasonably relied on by an expert witness but not admission of such records. The Court reasoned that "[t]here is no significant difference between disclosure and admission of a writing under 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."
The Court also rejected Ms. Lamalfa's argument that the records could have been misused by the jury. The Court observed that Rule 5-703 provides that a party may request a limiting instruction that the jury consider the records only to weigh the validity and probative value of the expert's opinions, as opposed to treating them as substantive evidence, but Ms. Lamalfa's counsel failed to request such an instruction at trial.
Furthermore, the Court rejected Ms. Lamalfa's arguments that Ms. Hearn did not establish the trustworthiness of the records or that they were necessary to illuminate Dr. Halikman's opinions, and found that Ms. Lamalfa failed to preserve an argument as to the authenticity of the records on appeal by not raising such an objection at trial.
Although Lamalfa involved an auto tort, the opinion of the Court of Special Appeals applies equally to companies defending personal injury lawsuits in other contexts, which often involve disputes as to the nature or extent of a plaintiff's injuries. The case serves as a reminder of the options available to companies in assessing trial strategy as it pertains to the bases of the opinions of medical expert witnesses. Whenever an expert relies on a plaintiff's medical records to form an opinion as to the nature or extent of the injuries s/he is alleging, moving for the admission of those records, where appropriate, as opposed to having the expert merely read the content of the records aloud, can be a valuable tool in persuading the jury to accept the expert's testimony.
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