REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 807

September Term, 2011

SEAN ROSEBROCK, INDIVIDUALLY,

AND AS GUARDIAN OF JUDITH PHILLIPS

v.

EASTERN SHORE EMERGENCY

PHYSICIANS, LLC, ET AL.

Woodward,

Zarnoch,

Kenney, James A., III

(Retired, Specially Assigned),

JJ.

Opinion by Woodward, J.

Filed: January 28, 2015
On May 14, 2009, appellant, Sean Rosebrock individually and as guardian of Judith

Phillips, filed a complaint for medical malpractice in the Circuit Court for Baltimore City,

against, among others, appellees, Deborah Davis, M.D.; Eastern Shore Emergency Medicine

Physicians, LLC; and Shore Health System, Inc. (“Shore System”). The matter was

subsequently transferred by agreement to the Circuit Court for Queen Anne’s County, where

a jury trial commenced on March 28, 2011. On April 7, 2011, the jury returned a verdict in

favor of appellees, concluding that Dr. Davis was not negligent in her care and treatment of

Phillips.

On appeal, appellant presents five issues for our review, which we have condensed

and rephrased into two questions:

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1. Did the trial court err or abuse its discretion by admitting, as

Appellant’s five issues presented in his brief are:

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1. Whether the trial court erred when it allowed Appellee to

testify concerning “habit” without support or corroboration.

2. Whether the trial court abused its discretion when it allowed

Appellee to testify regarding “habit” under MD. Rule 5-406.

3. Whether the trial court abused its discretion when it allowed

Appellees’ expert witnesses to testify over Appellant’s

objection pursuant to MD. Rules 5-402, 5-702, and 5-703.

4. Whether the trial court abused its discretion pursuant to the

evidentiary rules in allowing admission of Appellees[’]

evidence.

5. Whether the trial court abused its discretion when it denied

Appellant’s motion for judgment and motion for judgment

notwithstanding the verdict or in the alternative new trial.
“habit” evidence under Maryland Rule 5-406, Dr. Davis’s

testimony regarding her customary practice when presented

with a patient immobilized on a backboard?

2. Did the trial court abuse its discretion, under Rules 5-702 and

5-703, by allowing appellees’ experts to testify regarding Dr.

Davis’s compliance with the standard of care in her

examination of Phillips?

Appellees filed a conditional cross-appeal and present three issues, which, as stated

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in their brief, are:

1. Whether the trial court erred in denying Appellees’ Motion for

Judgment on the statute of limitations, and refusing to instruct

the jury on that issue[.]

2. Whether the trial court erred in refusing to instruct the jury on

contributory negligence[.]

3. Whether the trial court incorrectly allowed Appellant to

present evidence of and argue non-economic damages for a

period after [ ] Phillips entered a persistent vegetative state[.]

In addition, appellees filed a motion to dismiss the instant appeal, which, for the

reasons stated herein, we shall deny. We answer both of appellant’s questions in the negative

and thus shall affirm the judgment of the circuit court. As a result, we need not address the

issues raised in appellees’ conditional cross-appeal.

BACKGROUND

On November 21, 2003, Phillips slipped and fell on a wet floor in a patient’s room

Appellees actually present two additional issues on appeal—one simply states the

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motion to dismiss as an issue and the other rephrases appellant’s first question.

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while on duty as a nurse’s aide at the Ruxton Nursing Home located in Denton, Maryland.

Emergency Medical Technicians arrived at the scene of the incident and noted that Phillips

complained of “right hip pain, right knee pain, and slight pain to the lumbar region of the

lower back.” Phillips was immobilized on a backboard and transported by ambulance to the

Emergency Department of Shore System’s Memorial Hospital in Easton, Maryland.

Upon arrival at the hospital at 2:20 a.m., Phillips was assessed by triage nurse Richard

Brooks, who documented that Phillips was experiencing pain in the right knee, right hip, and

lower back. At 2:35 a.m., Dr. Davis, as attending physician, took a history of the incident

from Phillips and then examined her. The Emergency Physician Record of Dr. Davis’s

examination of Phillips indicated that Phillips was experiencing pain in her right knee and

right hip. Dr. Davis’s assessment did not include any notation of Phillips experiencing back

pain, and the portion of the Emergency Physician Record that provides for documentation

of a back examination was left blank. After reviewing the x-rays of Phillips’s right knee and

right hip, which were negative for fractures, Dr. Davis diagnosed Phillips as having knee and

hip contusions. Phillips was discharged from Memorial Hospital at 3:30 a.m.

On November 24, 2003, Phillips consulted Richard Bourgogne, M.D., complaining

of soreness in her hip, knee, and back. Dr. Bourgogne assessed Phillips as having “leg pain”

and increased her dosage of Celebrex. Dr. Bourgogne planned to do an MRI if significant

pain continued without improvement for 48 hours and advised Phillips to go to the

emergency room if her condition worsened. On December 1, 2003, Dr. Burgoyne ordered

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an MRI of Phillips’s right hip that showed the hip to be “unremarkable” and without fracture.

The MRI also showed degenerative disc disease in the lower lumbar spine.

On December 9, 2003, with her condition worsening, Phillips visited Glenn Hardy,

M.D., at the Orthopedic Center in Easton, Maryland. Dr. Hardy ordered X-rays of Phillips’s

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back, which revealed an acute compression fracture of the L3 vertebrae, “with possible

retropulsed fragment[s] causing nerve root compression.” Due to “significant nerve root

impairment,” Phillips was sent by ambulance to Memorial Hospital to see Benjamin Knox,

M.D., for a CT scan and evaluation. The CT scan revealed that Phillips had a “burst

fracture” of the L3 vertebrae, and she was subsequently transported to the University of

Maryland Shock Trauma Center for further treatment. The Orthopedics department “decided

to have a trial of [Thoracic-Lumbar-Sacral Orthosis] bracing.” Because her condition failed

to respond to the bracing treatment, on December 15, 2003, Phillips underwent a “posterior

spinal fusion and anterior spinal fusion” to correct the L3 burst fracture. On December 19,

2003, Phillips was discharged to Corsica Hills Center to begin rehabilitation.

When she experienced an “elevated white blood cell count and fever,” Phillips was

transferred back to the University of Maryland on December 27, 2003, where she received

treatment for an infected surgical wound. Unexpectedly, on January 4, 2004, Phillips

“sustained a ventricular fibrillation arrest in which she suffered anoxic brain injury.” As a

Between the initial incident on November 21, 2003 and the December 9, 2003

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appointment with Dr. Hardy, Phillips “had several falls at home,” including two falls on

November 30, 2003.

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result, Phillips entered into a persistent vegetative state and stayed in that condition until her

death on June 12, 2011.

On May 14, 2009, Phillips, by and through appellant, as her guardian, filed a

complaint in the Circuit Court for Baltimore City, asserting, among other claims, one count

of negligence against appellees. On January 13, 2010, the case was transferred by agreement

to the Circuit Court for Queen Anne’s County. A jury trial commenced on March 28, 2011,

and, on April 7, 2011, the jury found that Dr. Davis was not negligent in her care and

treatment of Phillips on November 21, 2003.

On April 15, 2011, appellant filed a motion for judgment notwithstanding the verdict

or in the alternative for a new trial, claiming error in the trial court’s admission of “habit”

testimony pertaining to Dr. Davis’s examination of individuals who are presented in the

emergency room on a backboard. On May 18, 2011, without a hearing, the circuit court

denied appellant’s motion. On June 12, 2011, Phillips passed away. On June 13, 2011,

appellant’s counsel filed a timely notice of appeal.

PROCEDURAL HISTORY IN THE COURT OF SPECIAL APPEALS

On December 9, 2011, while the appeal in the instant case was pending in this Court,

but before any briefs were filed or oral argument was held, appellees filed a motion to

dismiss the appeal. In their motion, appellees stated that they had recently received

information that Phillips died after judgment was entered in the trial court, but before the

Notice of Appeal was filed. As a result, according to appellees, appellant, as guardian of

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Phillips, did not have the authority to file the Notice of Appeal. Appellees further asserted

that appellant was required to substitute the Personal Representative of Phillips’s estate as

a party in the instant appeal prior to any further proceedings, and that as of the time of the

filing of the motion to dismiss, appellees had been “unable to determine that an Estate had]

been opened for [ ] Phillips or that a Personal Representative had] been properly granted

Letters of Administration.” Appellees concluded that the failure to substitute the Personal

Representative as a proper party rendered all filings by appellant subsequent to Phillips’s

death nullities, including the Notice of Appeal.

Appellees also argued that appellant’s counsel “similarly lacked the legal authority

to file an appeal after [ ] Phillips died.” Appellees cited to “well-established agency law

principles,” which provide that “an attorney has no authority to act for a client who has died.”

Thus, according to appellees, appellant’s counsel did not have authority to file an appeal on

behalf of Phillips after she passed away, and because an appeal was filed when counsel

lacked authority to do so, the Notice of Appeal was a nullity, and the appeal must be

dismissed.

Apparently unbeknownst to appellees, one day prior to the filing of their motion to

dismiss, December 8, 2011, Letters of Administration for Phillips’s estate were granted to

appellant by the Register of Wills for Queen Anne’s County. On December 21, 2011,

appellant filed a Notice of Substitution in this Court, in which appellant advised us of his

appointment as Personal Representative and requested that the “parties herein [ ] reflect the

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Plaintiff [sic] as Sean Rosebrock as] Personal Representative of the Estate of Judith Phillips.”

Also on December 21, 2011, appellant filed an Opposition to the Motion to Dismiss.

In the opposition, appellant stated, among other things, that (1) Phillips died at 10:28 p.m.

on June 12, 2011; (2) “[pursuant to instructions given to counsel prior to the passing of [ ]

Phillips, a Notice of Appeal was prepared and filed in the above matter on June 13, 2011”;

and (3) “[counsel was unaware of [ ] Phillips[’s] passing when the Notice of Appeal was

filed subsequently, less than 16 hours after her passing.” Because a Notice of Substitution

had been filed substituting the appearance of appellant as guardian with appellant as Personal

Representative, appellant concluded that the proper party had made an appearance in the

instant appeal, and thus appellee’s motion to dismiss should be denied.

This Court took no action on appellees’ motion to dismiss. When the parties filed

their briefs in the instant appeal in the Spring of 2012, appellees included a motion to dismiss

in their brief. Oral argument was held on October 9, 2012.

Three days after oral argument, on October 12, 2012, appellant filed a Motion to

Extend Time for Filing Substitution (“motion to extend time”). In the motion to extend time,

appellant alleged that, once counsel learned of the death of Phillips, “the process of getting

an Estate filed was immediately begun expeditiously and was completed on December [8],

2011.” Appellant also stated that appellees’ motion to dismiss was filed “based on [a] failure

to extend the time period for filing of the Estate.” Because, according to appellant, a Notice

of Substitution had been filed and no prejudice had been suffered by appellees because of the

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delay in his appointment as Personal Representative, appellant requested this Court “to retroactively issue an Order extending the time period for filing a Substitution of Party to allow

for the Substitution as here entered.”

On October 12, 2012, appellees filed an Opposition to Motion to Extend Time For

Filing Substitution (“opposition to motion to extend time”). In the opposition to motion to

extend time, appellees asserted that appellant had noted the appeal on June 13, 2011, in his

capacity as guardian, before an estate had been opened or a personal representative appointed

for Phillips’s estate. Appellees also stated that appellant was not appointed Personal

Representative of Phillips’s estate until almost six months later, on December 8, 2011.

According to appellees, Maryland Rule 1-203(d) “provides the representatives of a deceased

party at least 60 days to substitute the proper party,” which time period can be extended only

on a showing of “good cause” and a lack of prejudice to the rights of any other party.

Because, according to appellees, the motion to extend time contained no factual basis for this

Court to find “good cause why a proper substitution was not, or could not have been made

in a timely fashion,” there was no basis for an extension of the Rule 1-203(d) time frame, and

thus the appeal must be dismissed.

Additional facts will be set forth herein as necessary to resolve the motion to dismiss,

the motion to extend time, and the questions presented in this appeal.

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DISCUSSION

1. Motion to Dismiss

In their brief, appellees raise the same arguments in support of their motion to dismiss

as they did in their motion filed on December 9, 2011. Specifically, appellees argue that,

although appellant was the duly appointed guardian of Phillips, his authority to act on her

behalf ceased upon her death on June 12, 2011. Because the Notice of Appeal was filed on

June 13, 2011, appellees conclude that, “[as guardian and not personal representative,

[appellant] did not have this authority, and thus, his appeal is a nullity.”

In addition, appellees contend that the attorneys who represented Phillips’s interests

in the circuit court lacked the legal authority to file this appeal on her behalf once she died

on June 12, 2011. Appellees assert that, upon the death of Phillips, Maryland Rules 2-241

and 1-203(d) “afforded [appellant a process and time frame in which to have the proper party

substituted to pursue this appeal.” Appellees conclude that “this appeal should be dismissed

pursuant to Maryland Rule 8-602(a)(1) and/or Rule 8-602(a)(9).”

Appellant responds that, as the appointed guardian of Phillips, he remained

responsible for her “property and person” until the guardianship was terminated by the court

order entered on April 25, 2012. Appellant contends that, because he acted as the guardian

of Phillips’s property and person from July 5, 2005 until April 25, 2012, he was legally

authorized to file the instant appeal the day following Phillips’s death. In addition, appellant

contends that, because his attorneys were not aware of the death of Phillips when they filed

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the appeal, appellees’ “attempt to gain an advantage by the untimely death of [ ] Phillips is

certainly unwarranted.”

“A guardian is a person who legally has the care of the person or property, or both,

of another person who is incompetent to act for himself or herself.” 11 Md. Law

Encyclopedia, Guardian & Ward § 1 (2014). A guardianship is a statutory concept that gives

the court discretion in appointing a guardian and conferring narrow guardianship powers.

See Md. Code (1974, 2011 Repl. Vol.), §§ 13-201, -213 of the Estates & Trusts Article

(“ET”). A guardianship will terminate at the “death or presumptive death of the minor or

disabled person.” ET § 13-221(b)(2). The powers and duties of a guardian whose capacity

has been extinguished by the death of the ward are limited. Upon the death of the ward, the

guardian is authorized only to

deliver to the appropriate probate court for safekeeping any will of the

deceased person in his possession, pay from the estate all

commissions, fees, and expenses shown on the court-approved final

guardianship account, inform the personal representative or a

beneficiary named in it that he has done so, and retain the balance of

the estate for delivery to an appointed personal representative of the

decedent or other person entitled to it.

ET § 13-214(c)(3); cf. Battle v. Banks, 177 Md. App. 638, 651 (2007).

Moreover, Section 7-401(y) provides that the personal representative of an estate is

authorized to maintain an action to prosecute or defend personal claims that a decedent may

have prosecuted or commenced. ET § 7-401(y). A guardian thus has the authority to

prosecute an action on the ward’s behalf only when the ward is alive. Upon the death of the

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ward (now decedent), the only person who may prosecute an action on the decedent’s behalf

is the personal representative.

“[Under well-established principles of agency law, an agent’s authority terminates

upon the death of the principal.” Brantley v. Fallston Gen. Hosp. Inc., 333 Md. 507, 511

(1994) (citation omitted). An attorney does not have authority to note an appeal on behalf

of a client who has died. Id. at 511; see also Restatement (Third) of Law Governing Lawyers

§ 31(2)(b) (stating that “a lawyer’s actual authority to represent a client ends when . . . the

client dies”). In Brantley, the Court of Appeals noted the importance of having the

appropriate party file an appeal, stating:

We hold in this case that counsel’s authority to file an appeal

terminated upon the death of his client. At the time he noted the

appeal, no personal representative had been appointed, and no other

real party in interest had been substituted in the action. Thus, when

counsel filed the appeal, he purported to be acting on behalf of a nonexisting client.

333 Md. at 512 (footnote omitted). The Court of Appeals also has held that, when an

attorney files an appeal on behalf of a client who has died, it is “not a mere irregularity, but

a complete and radical defect, requiring dismissal of the appeal.” Chmurny v. State, 392 Md.

159 (2006) (citation and internal quotation marks omitted).

What guardianship and agency law principlesset forth above do not address, however,

is the authority of the agent after the principal dies, but before the agent learns of the

principal’s death. The Barnsley case does not address that point, nor does any other

Maryland case law. See 333 Md. 507. Such authority is critical in the instant case, because

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appellant argues that he, as Phillips’s guardian, authorized counsel prior to Phillips’s death

to note an appeal, which counsel did less than sixteen hours after Phillips’s death, but before

counsel received notice of her death.

Section 3.07(2) of the Restatement (Third) of Agency (2006) states the following:

The death of an individual principal terminates the agent’s actual

authority. The termination is effective only when the agent has

notice of the principal’s death. The termination is also effective as

against a third party with whom the agent deals when the third party

has notice of the principal’s death.

(Emphasis added).

The purpose of Section 3.07(2) “is to reduce risks imposed by the common-law rule

upon agents and third parties who deal in a manner consistent with the principal’s prior

manifestations of assent.” § 3.07 CMT. d. Consequently, Section 3.07 seeks to avoid any

“harsh consequences” resulting when an agent, “unaware of the principal’s death, . . . acts]

in good faith following it.” Id.

We shall adopt Section 3.07 of the Restatement (Third) of Agency to avoid such

“harsh consequences.” See id. Therefore, actions taken by the agent under his or her

authority and prior to notice of the principal’s death are valid. Accordingly, in the instant

case, because appellant’s counsel was given authority to note the appeal pursuant to

appellant’s instructions as guardian prior to Phillips’s death, and because counsel noted the

appeal prior to being notified of Phillips’s death, appellant’s counsel had valid authority to

note the appeal.

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Contrary to the arguments of both parties, we do not believe that Rule 1-203(d) is

applicable to the instant case. Rule 1-203(d) reads:

Upon the death of a party, all time requirements under these rules

applicable to that party shall be extended automatically from the date

of death to the earlier of (1) 60 days after the date of death or (2) 15

days from the issuance of letters of administration by a court of

competent jurisdiction. Before or after the expiration of an extension

period under this section and upon a showing of good cause why a

proper substitution was not made or could not have been made prior

to the expiration of the extension and that a further extension will not

unfairly prejudice the rights of any other party, the court may extend

the time requirements applicable to the deceased party for an

additional period commencing upon the expiration of the extension.

In essence, Rule 1-203(d) provides that all time requirements for filing are extended

for sixty days upon the death of a party, and can be extended for an additional period upon

a showing of good cause. Rule 1-203(d), however, does not come into play when a valid

notice of appeal is filed within thirty days after the entry of a final judgment by the circuit

court. Because, as we have held, appellant’s counsel had the authority to file an appeal on

June 13, 2011, pursuant to Section 3.07 of the Restatement (Third) of Agency, and the date

of filing of the Notice of Appeal, June 13, 2011, was within thirty days of the trial court’s

denial of appellant’s motion for judgment notwithstanding the verdict, May 18, 2011, there

is no need to look to Rule 1-203(d) for an extension of the time requirement for filing the

appeal. Accordingly, we will deny appellant’s motion to extend time as moot.

In terms of appellant’s authority to prosecute the instant appeal, Rule 2-241 provides

for the substitution of the personal representative, upon the death of a party, to prosecute a

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validly-noted appeal. Rule 2-241 provides, in relevant part:

(a) Substitution. The proper person may be substituted for a

party who:

(1) dies, if the action survives

***

(b) Procedure. Any party to the action, any other person

affected by the action, the successors or representatives of

the party, or the court may file a notice in the action

substituting the proper person as a party. The notice shall

set forth the reasons for the substitution and, in the case of

death, the decedent’s representatives, domicile, and date and

place of death if known. The notice shall be served on all

parties in accordance with Rule 1-321 and on the substituted

party in the manner provided by Rule 2-121, unless the

substituted party has previously submitted to the jurisdiction of

the court.

(c) Objection. Within 15 days after the service of the notice of

substitution, a motion to strike the substitution may be

filed.

(d) Failure to Substitute. If substitution is not made as provided

in this Rule, the court may dismiss the action, continue the trial

or hearing, or take such other action as justice may require.

(Emphasis added).

As can readily be seen, Rule 2-241 imposes no time requirement for filing a notice of

substitution upon the death of a party. The Rule simply provides that upon filing a notice of

substitution, any opposing party may file a motion to strike within fifteen days. See Rule 2-

241(c). Here, appellant filed a notice of substitution on December 21, 2011; appellees did

not file a motion to strike. The notice of substitution therefore is valid to permit appellant,

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as personal representative, to prosecute the instant appeal. Indeed, the parties’ briefs were

filed and oral argument was held after the notice of substitution was filed by appellant.

Accordingly, appellant had proper authority to prosecute this appeal, which had been validly

filed. For these reasons, we will deny the motion to dismiss.

2. Admissibility of Habit Evidence

Appellant argues that the court erred by allowing Dr. Davis to testify regarding her

habit of examining a patient on a backboard, because (1) Dr. Davis’s testimony regarding her

regular routine of examination was not the type of “habitual response” allowed by Rule

5-406; (2) the testimony was not supported or corroborated by additional evidence; and (3)

the testimony runs afoul of the balancing test elucidated in Rule 5-403, because the probative

value of the evidence was substantially outweighed by the danger of unfair prejudice. For

the reasons stated below, we disagree.

(a) Rule 5-406

Appellant argues that appellees “failed to show how the examination of patients

brought in after experiencing a fall, was the type of nonvolitional activity that was performed

with invariable regularity, as well as establishing [ ] the semi-automatic nature of such

examination.” (Emphasis in brief.) Appellees respond that, although there is a “dearth of

Maryland case law” regarding Rule 5-406, the procedure involved with moving someone

from a backboard in an emergency room is the type of nonvolitional conduct contemplated

by this rule. Appellees contend that a proper foundation was laid for the introduction of habit

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evidence, as Dr. Davis testified to the fact that she had likely examined thousands of patients

arriving on backboards, and thatshe performed the same process “the same way, every single

time, every day that I work.” We agree with appellees and shall explain.

Rule 5-406 provides:

Evidence of the habit of a person or of the routine practice of an

organization is relevant to prove that the conduct of the person or

organization on a particular occasion was in conformity with the habit

or routine practice.

Rule 5-406 is patterned after Federal Rule of Evidence (“FRE”) 406. Lai v. Sagle,

373 Md. 306, 322 n.8 (2003) (stating that Rule 5-406 “is patterned after the corresponding

federal rule”). FRE 406 provides:

Evidence of a person’s habit or an organization’s routine practice may

be admitted to prove that on a particular occasion the person or

organization acted in accordance with the habit or routine practice.

This court may admit this evidence regardless of whether it is

corroborated or whether there was an eyewitness.

In Sobus v. Knisley, this Court considered what evidence was admissible under the

common law precursor to Rule 5-406. 11 Md. App. 134, cert. denied, 261 Md. 728 (1971).

Knisley and Sobus were involved in an automobile accident where each party was the lone

motorist in his respective vehicle, and neither remembered the collision. Id. at 135. Knisley,

a supervisor at a state hospital, was searching for a patient who had “eloped” and testified

without objection regarding his habit of driving a certain route when searching for “elopees.”

Id. at 139. Knisley was asked to mark the route he normally took on a map that had been

entered into evidence. Id. at 140. The trial judge overruled an objection, allowing Knisley

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to draw his normal route on the map. Id. Knisley testified: “[T]hat’s the first trip that is

taken in search of any patient that leaves Springfield State Hospital. That’s the initial one.”

Id.

On appeal, we held that the trial court did not err in allowing such evidence to be

admitted. We cited to I Wigmore on Evidence § 92 (3d ed. 1940):

“Of the probative value of a person’s

habit or custom, as showing the doing on a

specific occasion of the act which is the subject

of the habit or custom, there can be no doubt.

Every day’s experience and reasoning make it

clear enough.”

Wigmore then goes on to discuss cases in which the evidence may not

show sufficient regularity to make it probable that it would be carried

out in every instance or in most instances. He then goes on to say, in

§ 93:

“Subject to the foregoing distinctions,

the admissibility of a person’s habit, usage, or

custom as evidence that he did or did not do

the act in question may be said to be

universally conceded.”

Sobus, 11 Md. App. at 141. We concluded “that evidence that an act was habitually done by

X under like circumstances will be received as evidence that it was done by X on the

particular occasion.” Id. (citation and internal quotation marks omitted). Thus we

concluded that the trial court did not err in allowing the admission of the habit evidence. Id.

In the context of a medical malpractice action, however, there is a dearth of case law

in Maryland regarding Rule 5-406. In a footnote in Lai, the Court of Appeals stated that the

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fact that an individual has been sued multiple times for malpractice does not constitute habit

or routine practice under Rule 5-406. 373 Md. at 322 n.8. In Dehn v. Edgecombe, this Court

held that Rule 5-406 was “not remotely applicable” where the appellant tried to show the

appellee doctor’s “routine procedure with respect to referring patients to specialists . . . but

then continuing to monitor their follow-up care himself” by adducing evidence of a single

occasion where the appellee referred the appellant to a surgeon and, ten months later, made

a second referral of the appellant to the same surgeon. 152 Md. App. 657, 672-73 (2003),

aff’d, 384 Md. 606 (2005).

For further direction, we turn to cases from other jurisdictions that have interpreted

habit evidence under FRE 406 in medical malpractice cases. In Weil v. Seltzer, the appellant

offered testimony of five former allergy patients to whom the appellee physician prescribed

steroids, but represented to them that the drugs were antihistamines or decongestants. 873

F.2d 1453, 1459-60 (D.C. Cir. 1989). The trial court admitted the testimony over objection

as habit evidence under FRE 406. Id. at 1460. The D.C. Circuit, reviewing the trial court’s

ruling under an abuse of discretion standard, held that the district court abused its discretion

in allowing the former patients’ testimony under FRE 406. Id. The D.C. Circuit explained:

Rule 406 allows certain evidence which would otherwise be

inadmissible if it rises to the level of habit. In this context, habit

refers to the type of nonvolitional activity that occurs with invariable

regularity. It is the nonvolitional character of habit evidence that

makes it probative. See, e.g., Levin v. United States, 338 F.2d 265,

272 (D.C. Cir. 1964) (testimony concerning religious practices not

admissible because “the very volitional basis of the activity raises

serious questions as to its invariable nature, and hence its probative

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value”), cert. denied, 379 U.S. 999, 85 S. Ct. 719, 13 L. Ed. 2d 701

(1965). But see Perrin v. Anderson, 784 F.2d 1040, 1046 (10th Cir.

1986) (five instances of violent encounters with police sufficient to

establish “habit” of reacting violently to uniformed police officers).

Thus, habit is a consistent method or manner of responding to a

particular stimulus. Habits have a reflexive, almost instinctive

quality. The advisory committee notes on Rule 406 illustrate this

point:

A habit . . . is the person’s regular practice of meeting

a particular kind of situation with a specific type of

conduct, such as the habit of going down a particular

stairway two stairs at a time, or of giving the hand-signal

for a left turn, or of alighting from railway cars while they

are moving. The doing of habitual acts may become semiautomatic.

Weil, 873 F.2d at 1460 (bold emphasis added). The court in Weil also noted that to determine

whether conduct rises to the level of “habit,” a court must consider the “‘adequacy of

sampling and uniformity of responses.’” Id. (quoting Fed. R. Evid. 406 advisory committee’s

note).

In Aikman v. Kanda, the District of Columbia Court of Appeals was presented with

a factual scenario similar to the matter sub judice. 975 A.2d 152 (D.C. 2009). Aikman

suffered an embolic stroke one day after Dr. Kanda performed open-heart surgery to repair

Aikman’s mitral valve. Id. at 155. Aikman filed suit against Dr. Kanda for negligence,

claiming that he “either failed to employ procedures to remove air from her heart (so-called

‘air drill’ procedures) before completing the surgery, or performed the air drill inadequately.”

Id. There was no notation in Aikman’s medical chart that the air drill procedure was

performed, and neither Dr. Kanda nor any member of his surgical team could remember the

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specifics of Aikman’s procedure, due to the lapse of time between the surgery and litigation

and the volume of procedures. Id. at 157. At trial, “[o]ver objections by Aikman’s counsel,

Dr. Kanda testified about the air drill procedures that he routinely performs after completing

a mitral valve repair.” Id. at 162.

After the jury returned a verdict for Dr. Kanda on all counts and Aikman’s motion for

a new trial was denied, Aikman noted an appeal, contending that Dr. Kanda’sroutine practice

of air removal following surgery wasinappropriate character evidence, rather than admissible

habit evidence. Id. 162-63. Aikman asserted that the protocol of removing air from the heart

could not be considered habit evidence, because it was a complex medical procedure, and not

“semi-automatic in nature.” Id. at 163. The Court determined that Dr. Kanda’s testimony

regarding the air drill protocol was habit evidence, reasoning that utilizing the same

procedure in over 500 mitral valve operations equated to a “regular response to a repeated

situation.” Id. (citation and internal quotation marks omitted). In assessing the volitional

nature of the habitual conduct, the Court stated that it was “relevant to its probative force,

not its admissibility.” Id. at 164.

The elements considered by the courts in Weil and Aikman when assessing the

admissibility of habit evidence are the very same elements critical to our decision in the

instant matter. Aikman involved a doctor who met a “particular kind of situation” (mitral

valve surgery) with a “specific type of conduct” (air drill procedure). See Weil, 873 F.2d at

1460; Aikman, 975 A.2d at 162. The instant case involves a doctor who met a particular kind

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of situation (a patient on a backboard) with a specific type of conduct (examining the spine

prior to removal). In determining the regularity of the conduct, the Aikman court relied on

Dr. Kanda’s history of performing the air drill procedure in every one of his more than 500

mitral valve operations. 975 A.2d at 163. At trial in the instant case, Dr. Davis testified to

treating “several” patients per shift who were presented by ambulance on a backboard,

working at Memorial Hospital for four and a half years, seeing 5,000 to 6,000 patients per

year, and conducting a spine examination on every patient on a backboard before removal.

Dr. Davis testified:

[APPELLEES’ TRIAL COUNSEL]: Dr. Davis, is the process

that you just took us

through, is that something

that you do once in awhile,

every so often? With what

sort of frequency do you

do that?

***

[DR. DAVIS]: I do the same process

every time I have a

p a t i e n t o n t h e

backboard. The nurses

don’t take patients off the

b a c k b o a r d . T h e

paramedics don’t take

them off the backboard.

It’s only the physician

that can, what we call,

clear the spine and I do it

the same way, every

single time, every day

that I work.

[APPELLEES’ TRIAL COUNSEL]: How many patients have

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you taken off a backboard

w i t h o u t d o i n g t h e

examination that you

described?

[DR. DAVIS]: None.

(Emphasis added).

Appellant argues that Dr. Davis’s procedure for examining the spine before removal

of a patient from a backboard cannot be admissible habit evidence, because it is a “variable

activity which requires thought and decision making.” The Court in Aikman rejected a

similar argument that a complex surgical procedure “cannot be so free from volition as to

regard it as habit.” 975 A.2d at 163-64. The Court reasoned that the large number of times

that Dr. Kanda performed the air drill procedure, the specificity with which he described the

procedure, and the high “ratio of reactions to situations” described by Dr. Kanda could not

lead to the conclusion that the trial judge “erred in determining that, for Dr. Kanda, the air

drill was semi-automatic in nature.” Id. at 163. Furthermore, “[t]he volitional aspect of the

de-airing procedures . . . went to the weight of the evidence of Dr. Kanda’s habit but did not

require its exclusion.” Id. at 164 (alterations in original). Similarly, from Dr. Davis’s

testimony, which included how she “clear[ed] the spine” and did it “the same way, every

single time,” the large number of times that she performed the procedure, and the certainty

of performing the procedure every time a patient was removed from a backboard, we

conclude that the trial court did not err or abuse its discretion in admitting Dr. Davis’s

testimony as habit evidence under Rule 5-406.

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(b) Corroboration

Appellant contends that the habit evidence was inadmissible because it was

“unsupported and uncorroborated by any substantive evidence.” According to appellant, the

“‘habit’ of an individual . . . is proven by testimony of a witness who is sufficiently familiar

with the individual to conclude that the conduct in question is habitual, or, physical evidence

is introduced along with the testimony by [the] individual whose conduct is in question.”

Appellant argues that the habit testimony provided at trial by a nurse who had worked with

Dr. Davis was not preceded by the necessary foundation; specifically,“[h]e was not asked

about how frequently he had worked with [Dr. Davis] or if he was familiar with her ‘habit’

of examining a patient’s back prior to allowing the patient of[f] a backboard.” Appellant

concludes that, because Dr. Davis had no memory of Phillips or her emergency room

examination, any testimony by Dr. Davis concerning her habit, without support or

corroboration, “should have been stricken asself-serving, unsupported character testimony.”

Appellees respond that it is unnecessary to corroborate habit evidence, because a lack

of corroboration goes to the “weight of the evidence, and not its admissibility.” We agree.

The Court of Appeals has specifically found, as noted in appellees’ brief, that one

method of proving habit is “‘by the individual himself or herself, who has lost his or her

memory as to the specific occasion.’” Ware v. State, 360 Md. 650, 676 n.8 (2000) (quoting

Lynn McClain, 5 Maryland Evidence § 406.1 (1987 & Supp. 1995)), cert. denied, 531 U.S.

115 (2001). The instant case falls squarely into this category of proving habit by one’s self,

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because Dr. Davis had no memory of treating Phillips due the volume of patients that she had

treated since seeing Phillips on November 21, 2003. We find additional support in Professor

McClain’s treatise, which explains that Rule 5-406 omitted the language of the federal rule

that provides that corroborating evidence is not a prerequisite to the

admissibility of habit or routine practice. Because this prerequisite

was not required by then current Maryland case law, it was thought to

be unnecessary and confusing to mention it in the rule. No

substantive change from the federal rule was intended.

McClain, supra, § 406:1 n.13 (2013 ed.).

We conclude that the trial court did not abuse its discretion in admitting evidence of

Dr. Davis’s “clear[ing] the spine” procedure when presented with a patient on a backboard,

because there is no requirement that the habit testimony of Dr. Davis be corroborated by

other evidence, and, as discussed, such conduct is of the nature contemplated by Rule 5-406.

(c) Rule 5-403

Appellant next asserts that the habit evidence offered by appellees runs afoul of the

balancing test required by Rule 5-403, because the probative value of such evidence is

substantially outweighed by the danger of unfair prejudice and confusion on the issues.

Appellant argues that the testimony was “irrelevant as it served no purpose in evaluating

whether or not Dr. Davis complied with the standard of care.” We disagree.

Rule 5-403 provides that relevant evidence “may be excluded if its probative value

is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury.” In this case, Dr. Davis’stestimony regarding her repeated and unfailing

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habit of “clear[ing] the spine” before removing a patient from the backboard is probative as

to whether she did so when she examined Phillips, a fact that is of great import in this case.

The jury also heard evidence that Dr. Davis could not recall her treatment of Phillips and that

she did not document her examination of Phillips’s spine in the Emergency Physician

Record. We do not believe that this testimony, taken as a whole, would prejudice or mislead

a jury. Rather, we conclude that the jury, having heard the evidence, could weigh the

testimony and decide what weight to afford it.

3. Expert Testimony

Appellant contends that the trial court erred in allowing Dr. Jeffrey Smith and Dr.

Michael Van Rooyen to testify as emergency medicine experts, because their respective

testimonies were based solely on the depositions and emails of Dr. Davis, which did not

represent a sufficient factual and scientific basis. Appellees respond that Dr. Davis’s

deposition testimony and relevant medical records were a sufficient basis for the standard of

care testimony given by Dr. Smith and Dr. Van Rooyen. Because we have already

determined that the trial court did not err in allowing Dr. Davis’s testimony into evidence,

it follows that the expert testimony relying on Dr. Davis’s testimony was also properly

admitted.

The admissibility of expert testimony is governed by Rule 5-702, which states:

Expert testimony may be admitted, in the form of an opinion

or otherwise, if the court determines that the testimony will assist the

trier of fact to understand the evidence or to determine a fact in issue.

In making that determination, the court shall determine (1) whether

25
the witness is qualified as an expert by knowledge, skill, experience,

training, or education, (2) the appropriateness of the expert testimony

on the particular subject, and (3) whether a sufficient factual basis

exists to support the expert testimony.

With respect to the third requirement, whether there is a sufficient factual basis to

support the expert testimony, the “‘factual basis for expert testimony may arise from a

number of sources, such as facts obtained from the expert’s first-hand knowledge, facts

obtained from the testimony of others, and facts related to an expert through the use of

hypothetical questions.’” Wantz v. Afzal, 197 Md. App. 675, 684 (quoting Sippio v. State,

350 Md. 633, 653 (1998)), cert. denied, 420 Md. 463 (2011). The Court of Appeals has held

that expert witnesses can rely on deposition testimony to formulate their opinion. Greenstein

v. Meister, 279 Md. 275, 285-86 (1977).

Clearly, the expert opinions of Dr. Smith and Dr. Van Rooyen were based on the

deposition of Dr. Davis. At trial, Dr. Van Rooyen expressly set forth the factual foundation

of his opinion, as evidenced by the following exchange:

[APPELLEES’ TRIAL COUNSEL]: The question was: Based

on your review of Dr.

Davis’[s] deposition and

y o u r t r a i n i n g a n d

experience, do you have an

understanding as to what

was done with respect to

[ ] Phillips’[s] back?

[DR. VAN ROOYEN]: So based on Dr. Davis’[s]

deposition and also, I

think, the way that, as I

said, we are trained,

26
typically, to approach

patients like this, it was

i n d i c a t e d t h a t s h e

documented some of the

findings that she had while

she was at the bedside or

potentially documented at

the bedside and then

proceeded to do the kind

of head-to-toe brief

physical exam that we do

to get the patient off the

b a c k b o a r d o r t o

determine if the patient

has injuries on the spot.

(Emphasis added).

Similarly, Dr. Smith indicated the foundation for his opinion as follows:

[APPELLEES’ TRIAL COUNSEL]: So on what basis do you

say that Dr. Davis

examined the back?

[DR. SMITH]: Because Dr. Davis stated

in her deposition that her

approach to e v e r y

p a t i e n t o n t h e

backboard, which is the

eme r g e n c y me d i c in e

approach to every patient

on the backboard, is to

examine the front, to

make sure the neck is

okay and then to logroll

the patient and feel the

entire back, including the

spine. That’s done every

time. In our institution, I

do it 15 times a day when

27
I’m working. It[‘]s

standard. It[‘]s like

breathing or drinking

water.

(Emphasis added).

Because, as discussed previously, Dr. Davis’s testimony regarding her invariable

practice of examining the spine of a patient presented on a backboard was admissible

pursuant to Rule 5-406, it was appropriate for both experts to rely on such facts in forming

their opinions. Accordingly, the trial court did not abuse its discretion in admitting the expert

opinions of Drs. Van Rooyen and Smith.

JUDGMENT OF THE CIRCUIT COURT

F O R Q U E E N A N N E ’ S C O U N T Y

AFFIRMED; APPELLANT TO PAY COSTS.

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