Bennett Frankel, et al. v. Casey Lou Deane, No. 43, September Term, 2021. Opinion by 

Gould, J.

EXPERT TESTIMONY – MEDICAL MALPRACTICE

The trial court’s admission or exclusion of expert medical testimony is reviewed on an 

abuse of discretion standard. When assessing the admissibility of such testimony, the court 

may not resolve disputed material facts or witness credibility issues; such issues are for the 

jury to decide. The court abuses its discretion when it excludes testimony based on the 

court’s factual determinations on genuinely disputed issues.

EXPERT TESTIMONY – MEDICAL MALPRACTICE

Under Meda v. Brown, 318 Md. 418 (1990), in a medical malpractice case, if the expert 

cannot ascertain the precise cause of the injury, inferential reasoning is permissible to 

establish the elements of breach and causation so long as each inference is supported by 

expert testimony. 
Circuit Court for Calvert County

Case No.: C-04-CV-18-000396

Argued: March 7, 2022

IN THE COURT OF APPEALS

OF MARYLAND

No. 43

September Term, 2021

______________________________________

BENNETT FRANKEL, ET AL.

v.

CASEY LOU DEANE 

______________________________________

*Getty, C.J.

Watts

Hotten

Booth

Biran

Gould

 McDonald, Robert N. (Senior Judge,

Specially Assigned),

 

JJ.

______________________________________

Opinion by Gould, J.

Watts, J., dissents.

______________________________________

Filed: August 25, 2022

*Getty, C.J., now a Senior Judge, participated in 

the hearing and conference of this case while 

being an active member of this Court. After 

being recalled pursuant to Md. Const., Art. IV, 

§ 3A, he also participated in the decision and 

adoption of this opinion.
BACKGROUND

A

This is a medical malpractice case arising out of the removal of Casey Lou Deane’s 

lower and upper wisdom teeth by Dr. Bennett Frankel. Dr. Frankel performed the surgery 

on January 14, 2016.1 Ms. Deane signed consent forms and was, according to Dr. 

Frankel’s medical notes, “told of possible complications, mainly pain, burning, paresthesia 

lower lip, chin, tongue[.]” 

When Ms. Deane awoke after the surgery, she was in pain and couldn’t speak or 

feel her tongue. She was told to go home and rest and was assured that her condition would 

improve once the anesthesia wore off. But that did not happen. 

Ms. Deane had a follow-up appointment with Dr. Frankel several days after the 

surgery. Dr. Frankel’s notes from the visit reflect that Ms. Deane complained of pain, 

paresthesia, and tingling on the front third of both sides of her tongue. Ms. Deane recalled 

being told “to give it more time to heal[,]” but denied reporting any improvement. 

Dr. Frankel’s notes also indicate that Ms. Deane had a follow-up appointment 

scheduled for one week later, which Ms. Deane did not attend. Regarding that

appointment, the notes state, “patient’s complaints getting better” and “not coming back.” 

Ms. Deane recalled no conversation with anyone from Dr. Frankel’s office about the 

follow-up appointment. She did recall, however, not wanting to go back to Dr. Frankel 

1 Because this is an appeal from a summary judgment, we recite the facts in the light 

most favorable to the non-moving party, Ms. Deane.
2

because she could not feel her tongue, and yet he told her that she was “okay” and assured 

her that in time the problems would resolve. She testified, “[s]o I think I was just done.”

Several months after the surgery, Ms. Deane’s symptoms continued to show no 

improvement, so she called Dr. Frankel’s office and scheduled an appointment with a 

different doctor, Dr. Clay Kim for April 18, 2016.

What transpired at Ms. Deane’s appointment with Dr. Kim is in dispute. Dr. Kim’s 

progress notes state that Ms. Deane complained that her tongue was numb but also stated 

that she was “getting better and still tingling” and that her “whole tongue [was] not numb 

anymore,” and that “. . . [n]ow only [the] right anterior tongue is numb.” The notes also 

reflect that Dr. Kim examined her mouth and conducted some neurosensory tests, stating, 

“right anterior 2/3 with mild pain perception, direction, and soft touch sensation intact[.]” 

Dr. Kim diagnosed a “likely neuropraxia injury” and noted that referral to a “neurologis[t]” 

might be necessary, but that he recommended “observation for now” and that the “[p]atient 

will schedule for the above procedure[s].”2 The notes do not reflect that Dr. Kim tested 

Ms. Deane’s sense of taste or her reaction to hot or cold stimuli. 

Ms. Deane maintains that, contrary to Dr. Kim’s notes, she told him that her tongue 

was numb on both sides of the front of the tongue, that it was difficult to talk and eat, and 

that she was experiencing pain, throbbing, and tingling. She recalled that Dr. Kim poked 

her tongue with something, but did not recall him mentioning the possible need to see a 

nerve specialist. 

2

It’s not clear to which procedures Dr. Kim’s notes were referring.
3

Roughly six months after the surgery, Ms. Deane still could not feel her tongue, 

which prompted her to do some research. She found information on bilateral lingual nerve 

injuries which seemed to produce the same symptoms as those she had been experiencing. 

Lacking dental insurance, Ms. Deane did not follow up with another oral surgeon. About 

two years after her surgery, she decided to call a lawyer, who, in turn, referred her to Dr. 

Richard Kramer, a dentist who was board-certified as an oral and maxillofacial surgeon. 

Dr. Kramer’s practice included third molar extractions and diagnosing nerve 

injuries. After conducting a series of sensory tests on Ms. Deane, Dr. Kramer prepared and 

sent a report with his findings to her attorney. His report said: “[t]he injury here is likely a 

bilateral neurotmesis.”3 Dr. Kramer also opined that, due to the time between the date of 

the surgery and his evaluation, the injury was permanent. 

B

In August 2018, Ms. Deane filed a malpractice claim against Dr. Frankel and 

Southern Maryland Oral and Maxillofacial Surgery, P.A. (“Southern”), the practice that 

employed Dr. Kim. Ms. Deane alleged that she suffered permanent loss of feeling in her 

tongue because Dr. Frankel severed the lingual nerve while extracting her wisdom teeth,

3

“Neurotmesis is a complete transection of a peripheral nerve. The severity of 

peripheral nerve injury can be classified as neurapraxia, axonotmesis, or neurotmesis. 

Neurotmesis will produce complete sensory and motor deficits to the skin and muscles 

innervated by the injured nerve.” See Alexjandro J. Matos & Orlando De Jesus, 

Neurotmesis, NAT’L LIBR. OF MED. (last visited Aug. 12, 2022), 

https://www.ncbi.nlm.nih.gov/books/NBK559108/#:~:text=Neurotmesis%20is%20a%20

complete%20transection,innervated%20by%20the%20injured%20nerve.
4

and because Dr. Kim failed to promptly refer her to a nerve specialist. Ms. Deane 

subsequently amended her complaint to add Dr. Kim as a defendant.

4

 

C

Ms. Deane designated two experts: (1) Dr. Kramer, to provide expert testimony on 

the nature and extent of her alleged injury; and (2) Armond Kotikian, D.D.S., M.D., a 

board-certified dentist in oral and maxillofacial surgery, to testify on standard of care and 

causation. 

Dr. Kramer

Dr. Kramer testified at his deposition that the standard of care for diagnosing nerve 

injuries was set forth in the “Nerve Evaluation Protocol 2014” from the California 

Association of Oral and Maxillofacial Surgeons (the “2014 Protocol”). The 2014 Protocol 

recommends a four-part test for providing “a framework upon which evaluation and 

treatment options could be based.” Dr. Kramer routinely used that test in his practice to 

diagnose lingual nerve injuries, including with Ms. Deane. 

Dr. Kramer explained that he “performed pressure, two-point discrimination, taste, 

and sensation of sharp” on Ms. Deane. He acknowledged that the test was partly based on 

the subjective reporting of his patients but stated that he tries “to make it as objective . . . 

as [he] can.” 

With Ms. Deane, he used the fluff of a wooden Q-Tip to determine if she could feel 

a light touch, a broken end of the Q-Tip to test if she could feel a sharp touch, and a metric 

4 Dr. Frankel, Dr. Kim, and Southern are collectively referred to herein as the 

“doctors” or “petitioners.”
5

gauge to measure the distance at which she could distinguish touching sensations in two 

places. He observed that Ms. Deane had no feeling and no ability to discern feeling in two 

places on the front two-thirds of both sides of her tongue. Dr. Kramer also conducted a 

temperature test on Ms. Deane’s tongue, and again, “[t]here was no response.” 

In addition, Dr. Kramer performed a taste test with a local anesthetic, which is 

known to be bitter. He put the anesthetic in several different places on Ms. Deane’s tongue, 

including at the back. Ms. Dean reported no taste in the front bilateral parts of her tongue. 

As to the subjective nature of the taste test, Dr. Kramer explained that, for most people, 

“when you do that, if they can taste it, you can look right at them and know they’re tasting 

it.” 

As noted above, Dr. Kramer opined that “[t]he injury here is likely bilateral 

neurotmesis,” or, as described in his deposition, a “complete transection of the lingual 

nerve bilaterally[.]” His report also stated that Ms. Deane “will experience no further 

improvement in her condition[,]” and that the injury was permanent. Dr. Kramer gave two 

reasons for his opinions: (1) the neurosensory tests showed that Ms. Deane had no feeling 

in the area of her tongue in front of the wisdom teeth; and (2) the fact that Ms. Deane had 

no sensation in her tongue two years after the injury meant that the lingual nerve had been 

severed because otherwise, he would have expected to see some improvement due to nerve 

regeneration. 

Dr. Kramer did not review either Dr. Frankel’s or Dr. Kim’s notes prior to his 

examination. When asked if a neurosensory exam three months after surgery would have 

been pertinent to his opinions on nerve injury in this case, Dr. Kramer said “[p]ending the 
6

outcome of that exam. Yes.” He then explained that “[b]y example, . . . if someone did an 

exam of her at three months and she had a normal sensation, that would be quite pertinent 

to the outcome . . . [b]ecause she didn’t have normal sensation when I saw her nearly two 

years after the injury.” He testified that seeing improvement three months after surgery, as 

reported by Dr. Kim, was inconsistent with the conclusions he reached from his 

examination two years after surgery because if the symptoms had been improving at three 

months, Ms. Deane’s condition would not have subsequently deteriorated. Dr. Kramer 

opined that the only diagnosis consistent with Ms. Deane’s persistent loss of taste sensation 

or feeling in her tongue for two years was a complete severance of the lingual nerve. 

Dr. Kotikian

Dr. Kotikian was designated to testify that “Ms. Deane has developed full anesthesia 

of her tongue, bilaterally and a likely severance of her lingual nerves, bilaterally, following 

the extraction of [the lower wisdom teeth] by Dr. Bennett F. Frankel[.]” In addition, he

would testify that: (1) the injury “likely occurred while the third molar in question was 

being sectioned and the bur traversed the lingual plate causing the lingual nerve to be 

severed”; (2) the injury could have been avoided by placing “a retractor or a periosteal 

elevator . . . between the lingual plate and periosteum during the time of sections and/or 

adequate buccal and distal troughs . . . around the teeth”; and (3) the failure to take either 

precautionary step deviated from the standard of care in oral surgery practice and caused 

Ms. Deane’s injuries. Further, Dr. Kotikian would testify that “if the teeth [had not been]

transected, then the surgeon cut the flap too widely and outside the intended surgical field.” 

According to Dr. Kotikian, “each is a deviation from the standard of care.” 
7

Dr. Kotikian was also designated to testify that Dr. Kim should have recommended 

that Ms. Deane take steroids and should have referred her to a neurosurgeon “or nerve 

repair specialist[,]” as such “treatment . . . is most effective when performed within the first 

1-3 months post injury.” 

At his deposition, Dr. Kotikian testified that he based his opinion on the totality of 

Dr. Kramer’s diagnosis, Ms. Deane’s testimony concerning her symptoms, relevant 

scientific literature, and his own experience avoiding permanent lingual nerve injuries by 

using a retractor/elevator or drilling adequately around the buccal side of the teeth. 

Dr. Kotikian explained that he was skeptical about the notes from Drs. Frankel and 

Kim because it was not possible that Ms. Deane had an improvement in sensation, given 

that Dr. Kramer’s tests found that she exhibited symptoms of total nerve severance, and 

that nerves do not degenerate over time; if anything, they improve. As to whether Ms. 

Deane could have been lying to Dr. Kramer in response to the tests he performed, Dr. 

Kotikian expressed doubt, stating: “when we do these examinations, we’re actually poking 

and prodding, so if they’re not feeling anything, it’s very obvious because if we stick a 

needle in there, they’ll jump if they have sensation.” 

Dr. Kotikian further explained that although a lingual nerve injury is a known risk 

of wisdom teeth extraction, such injuries are usually temporary, whereas a complete 

severance of the nerve is permanent. And, he explained, an oral surgeon could do 

everything correctly and still cause a temporary nerve injury, but could not completely 

sever the nerve without deviating from the standard of care. According to Dr. Kotikian, 

that’s because lingual nerve severance means that the lingual plate must have been crossed 
8

in the performance of the extraction, or a retractor was not used to protect the nerve from 

improper drilling. 

D

Dr. Frankel and Southern both moved for summary judgment, which was, for all 

intents and purposes, later adopted by Dr. Kim after he was added as a defendant.5

Petitioners argued that there was “no direct or physical evidence of injury or medical 

circumstances sufficient to allow an expert opinion ‘inference’ that surgical negligence 

occurred in this matter[.]” Relying on this Court’s opinion in Meda v. Brown, 318 Md. 418 

(1990), they contended that inferences of negligence and causation require “sufficient 

direct and physical evidence[,]” and that “Ms. Deane’s self-serving statements made during 

litigation and accusing both Dr. Kim and Dr. Frankel of fabricating her reports of improved 

sensation do not create a dispute of fact sufficient to overcome summary judgment in this 

matter.” 

Dr. Frankel further argued that under Meda, the “evidence must show the injury is 

not something that happens in the absence of surgical negligence[,]” and that the risk of 

“[t]emporary and/or permanent lingual nerve injury during the extraction of wisdom teeth 

is well known . . . and . . . does happen when appropriate and reasonable surgical techniques 

are used.” Dr. Frankel contended that “Dr. Kotikian also testified that lingual nerve injury 

is a recognized and material risk” of the surgery performed on Ms. Deane. Dr. Frankel 

argued that “[t]here is absolutely no direct or physical evidence of any injury or abnormal 

5 The parties treated Dr. Kim as a party defendant during the summary judgment 

proceedings, even though Ms. Deane did not add him as a defendant until after the hearing.
9

trauma to [Ms. Deane’s] anatomy” and that the “entire alleged ‘inference’ that negligence 

occurred is itself based on an invalid and/or speculative ‘inference’ that a specific injury 

happened.” 

Putting it less charitably, Dr. Frankel averred that “the entire factual basis of [Ms. 

Deane’s] case depends on [her] experts’ rewriting the medical history pursuant to the selfserving statements of [Ms. Deane] made for purposes of litigation.” Thus, he contended 

that the expert testimonies of Drs. Kramer and Kotikian were inadmissible under Meda, 

the Frye-Reed standard, and Rule 5-702, and that without expert testimony, Ms. Deane 

could not present a prima facie case of negligence. 

In response, Ms. Deane argued, among other things, that genuine disputes of 

material facts precluded summary judgment, particularly regarding the reliability of Dr. 

Kim’s and Dr. Kramer’s assessments. 

Summary Judgment Hearing

The court held a hearing on the summary judgment motions on August 7, 2019. As 

the arguments progressed, the court determined that a Frye-Reed hearing was necessary to 

consider the admissibility of the testimony of Ms. Deane’s experts. Although the court

made a tentative decision to grant summary judgment in favor of Southern and Dr. Kim on 

the claim that Dr. Kim negligently failed to refer Ms. Deane to a neurosurgeon, the court 

deferred ruling on the remaining issues pending the Frye-Reed hearing.

The Frye-Reed Hearing

In advance of the Frye-Reed hearing, petitioners submitted a bench memorandum, 

contending that the court should exclude Ms. Deane’s expert witnesses based on Frye-Reed
10

principles. Petitioners argued that: (1) Ms. Deane’s theory of liability was inadmissible 

because the injuries she incurred were known risks of her procedure that could occur 

without negligence; (2) Dr. Kotikian’s testimony that she suffered “bilateral severed 

lingual nerve” damage was inadmissible because it was based on subjective complaints 

and not on exploratory surgery; and (3) Ms. Deane’s experts’ assertion that the standard of 

care required a lingual tissue retraction technique was inadmissible because that technique 

was not generally accepted as being beneficial. Petitioners supported their memorandum 

with Ms. Deane’s consent form as well as scholarly articles on trigeminal nerve injuries 

following third molar removal, lingual nerve injuries and nerve damage, and micro 

neurosurgery of the lingual nerve. 

Petitioners did not dispute that the sensory tests conducted by Dr. Kramer were 

generally accepted methodologies in the medical community, but instead argued that the 

diagnosis Dr. Kramer made from the test results was not a generally accepted conclusion. 

In other words, petitioners argued that there was an “analytical gap” between the tests 

administered by Dr. Kramer and the conclusions that he and Dr. Kotikian drew from them.

6

 

Ms. Deane likewise filed a memorandum, which she supported with party and 

witness depositions, excerpts from the 2014 Protocol, scholarly articles on trigeminal nerve 

6 The phrase “analytical gap” refers to the concept discussed by the United States 

Supreme Court in General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997), and adopted 

by this Court in Blackwell v. Wyeth, 408 Md. 575, 606-07 (2009). As explained in 

Rochkind v. Stevenson, 471 Md. 1 (2020), the analytical gap issue in Blackwell “was 

whether the Frye-Reed test applied ‘to the analysis undertaken by an expert where the 

underlying data and methods for gathering this data are generally accepted in the scientific 

community but applied to support a novel theory’ of medical causation.” Id. at 17 (quoting 

Blackwell, 408 Md. at 596).
11

injuries and the accuracy of clinical neurosensory testing for nerve injuries, and a chapter 

from a textbook, Clinical Evaluation of Nerve Injuries. 

Ms. Deane argued that Frye-Reed did not apply because the neurosensory testing 

technique that her expert utilized was not novel. Further, she contended that under 

Maryland Rule 5-702, her experts had sufficient factual support for their opinions, 

including deposition testimony, medical literature, applicable guidelines, medical records, 

clinical exercises, training, and education.

The Trial Court’s Ruling

On April 20, 2020, the circuit court issued a 97-page Memorandum Opinion and 

Order (the “memorandum order”), granting the summary judgment motions and dismissing 

Ms. Deane’s complaint with prejudice as to all defendants. Rather than provide our own 

summary of the court’s ruling, we shall refer to the court’s summary set forth at the outset 

of its opinion:

[T]his Court found herein, applying Maryland’s Frye-Reed Standards, Meda 

v. Brown, 318 Md. 418, 428 (1990), and Maryland Rule 5-702 principles of 

law, that Dr. Kramer’s 2018 opined conclusion as to the possible severance 

in 2016 is based primarily on his examination of Plaintiff almost two years 

after the fact, and on the Plaintiff’s shaky, uncertain self-reporting to him 

then in 2018 without him having reviewed the professionally detailed notes 

and records of Dr. Frankel’s and Dr. Kim’s treatments and examination of 

Plaintiff, which this Court found met Maryland’s Frye-Reed Standards of 

scientific, clinical, and analytical reliability as well as to be based on such 

requisite methodology as required therein. Thus, the Court further found 

herein that Dr. Kramer’s opined conclusions at the time of his April 2018 

examination of Plaintiff, which serve as the lynchpin for Dr. Kotikian’s 

expert opinions of violations of standard of ordinary care by Dr. Frankel, Dr. 

Kim, and the Practice, fail to meet, directly or inferentially, the Maryland 

Frye-Reed, Meda, and Maryland Rule 5-702 standards of scientific, clinical, 

and analytical reliability as well as to be based on such requisite methodology 

as required therein. That is so since Dr. Kramer’s opinion failed to have 
12

reviewed the professional and detailed notes and records of Dr. Frankel’s and 

Dr. Kim’s treatment and examination of Plaintiff and to have weighed and 

compared them against her uncertain versions of her treatment history with 

all of the Defendants, which failure he admits in his deposition may have 

changed his opined conclusion as to the acts and omissions of Dr. Frankel, 

Dr. Kim, and the Practice being professionally negligent. Nor was his 

opinion as to the lack of timely referral by Dr. Kim and the Practice 

constituting professional malpractice adequately supported by the medical 

authorities and studies relied upon by him. Thus, Dr. Kotikian’s opinions of 

violations of the standard of ordinary care by Dr. Frankel, Dr. Kim, and the 

Practice, having been found to have been significantly based on Dr. Kramer’s 

faulty opined findings and conclusions and unsupported by the medical 

authorities and studies relied upon by Dr. Kotikian are found on the record 

herein not to comply with Maryland Frye-Reed, Meda, and Maryland Rule 

5-702 standards of scientific, clinical, and analytical reliability as well as not 

to be supported by such requisite methodology. Accordingly, Dr. Kotikian’s 

opinions as to violations of the ordinary standard of dental care as to all 

Defendants are not admissible in this matter, and therefore, inter alia, there 

is not found ultimately to exist a genuine dispute of material facts, such that 

Plaintiff’s claims do not survive Summary Judgment with respect to all 

Defendants. 

Having found as key facts that the Plaintiff’s failure to attend followup appointments as recommended and instructed prevented a timely referral 

to a nerve repair specialist for microneuroexploratory surgery within the 

purported one to three month window for Dr. Frankel or the outer limit of the 

purported three to six month window for Dr. Kim or the Practice to do so, 

the Court determined affirmatively that there was no genuine dispute of 

material fact that none of the three Defendants committed negligence as 

alleged for such a failure to so refer. Alternatively, it found that the Plaintiff 

committed contributory negligence by unjustifiably failing to attend followup appointments with all three Defendants as recommended, and that none 

of the Defendants committed negligence by failing to follow-up with a letter 

or communication for her to seek such a referral. Thus, the Plaintiff cannot 

succeed on her claims at trial and is barred from recovery as matter of law, 

and, accordingly, the Court grants Summary Judgment in favor of the 

Defendants.

E

Ms. Deane noted a timely appeal. In an unreported opinion, the Court of Special 

Appeals reversed, finding that the trial court erred as a matter of law. Deane v. S. Md. Oral 
13

& Maxillofacial Surgery, P.A., No. 0218, Sept. Term 2020, 2021 WL 3523939 (Aug. 11, 

2021). The Court disagreed with the trial court that Dr. Kramer’s failure to review the 

notes of Drs. Frankel and Kim rendered his opinions unreliable. Id. at *7. According to 

the Court, such failure would go to the weight of his testimony, not to its admissibility. Id.

The Court also disagreed with the trial court’s interpretation that, pursuant to Meda, 

Dr. Kotikian’s opinions were inadmissible because they failed to meet the standard for 

inferences of negligence. Id. at *9. 

Finally, the Court ruled that the court erred in determining that Ms. Deane was 

contributorily negligent. Id. at *10.

The doctors petitioned this Court for a writ of certiorari, which we granted. Frankel 

v. Deane, 476 Md. 416 (2021). They present three questions for our review, which we 

consolidated and re-phrased as follows:

7

7

 The questions as presented by petitioners were:

1. Did the CSA err by neither (1) applying the Rochkind [v. Stevenson, 

471 Md. 1 (2020)] factors when reversing the trial court’s preclusion of 

expert testimony or (2) remanding the case to the circuit court to apply the 

Rochkind factors? 

2. Did the CSA erroneously hold that the trial court abused its discretion 

by precluding expert testimony under Meda v. Brown, if the opinions and 

inferences were speculative unless the expert could reliably opine that the 

injury ordinarily would not occur without negligence? 

3. Did the CSA erroneously hold that the trial court abused its discretion 

by precluding expert testimony after finding that Respondent’s experts had 

applied unsound reasoning and methodology to conclude that bilateral nerve 

severing injuries occurred?
14

1. Did the Court of Special Appeals erroneously hold that the trial court 

abused its discretion by precluding the expert testimony of 

Respondents’ experts? 

2. Did the Court of Special Appeals err by neither (1) applying the 

Rochkind factors when reversing the trial court’s preclusion of expert 

testimony or (2) remanding the case to the circuit court to apply the 

Rochkind factors? 

DISCUSSION

To prevail in a medical malpractice negligence action, a plaintiff must prove four 

elements: “(1) the defendant’s duty based on an applicable standard of care, (2) a breach 

of that duty, (3) that the breach caused the injury claimed, and (4) damages.” Am.

Radiology Servs., LLC v. Reiss, 470 Md. 555, 579 (2020). “Because of the complex nature 

of medical malpractice cases, . . . [plaintiffs must present expert testimony] to establish 

breach of the standard of care and causation.” Stickley v. Chisholm, 136 Md. App. 305, 

313 (2001) (citation omitted).

Maryland Rule 2-501(f) provides that “[t]he court shall enter judgment in favor of 

or against the moving party if the motion and response show that there is no genuine dispute 

as to any material fact and that the party in whose favor judgment is entered is entitled to 

judgment as a matter of law.” Thus, summary judgment is appropriate if the plaintiff fails

to come forward with admissible expert testimony on standard of care, breach, and 

causation. See Rodriguez v. Clarke, 400 Md. 39, 72 (2007); Puppolo v. Adventist 

Healthcare, Inc., 215 Md. App. 517, 534 (2013). We review the trial court’s grant of 

summary judgment de novo. Webb v. Giant of Md., LLC, 477 Md. 121, 347 (2021).

A
15

To be admissible, expert testimony must satisfy the requirements of Maryland Rule 

5-702, which provides:

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 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.

Medical negligence may be proven with both direct and circumstantial evidence. 

Meda, 318 Md. at 428. In Meda, this Court held that a prima facie case of medical 

negligence may be proven by “proof of circumstances from which its existence may be 

inferred[,]” provided that the inferences from such circumstances were drawn by experts 

“armed with their fund of knowledge[.]” Id. at 428 (citation omitted). 

The factual basis for an expert’s opinion can come from “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.” Sippio v. State, 350 Md. 

633, 653 (1998). In addition, experts are permitted to “express an opinion based upon facts 

assumed but not in evidence when the question is asked, if such facts are later proved in 

the case.” Mangione v. Snead, 173 Md. 33, 42 (1937). This applies to disputed facts as 

well. As this Court explained, 

Under such circumstances, the proper way to submit a hypothetical question 

is to ask the witness to presume the truth of certain facts as if they were not 

the subject of dispute. These may still be contested in actuality but the 
16

inquiry is proper as long as there is evidentiary support for the facts which 

the expert is told to assume the veracity of and evaluate in rendering his 

opinion. Of course, any assumption made must be grounded on a fair 

summation of the material facts in evidence and those material facts must be 

sufficient in scope for the witness to formulate a rational opinion. In such a 

situation the jury is aware of the premise upon which the opinion is based 

and can determine whether that assumption was valid. If it is not, the opinion 

of the expert is disregarded.

Kruszewski v. Holz, 265 Md. 434, 445 (1972).

Admissibility rulings under Maryland Rule 5-702 are reviewed under an abuse of 

discretion standard. A ruling under Rule 5-702

may be reversed on appeal if it is founded on an error of law or some serious 

mistake, or if the trial court clearly abused its discretion. Additionally, we 

will not affirm a decision within the discretion of the trial court if the judge 

acts in an arbitrary or capricious manner or beyond the letter or reason of the 

law.

Rochkind , 471 Md. at 11 (cleaned up). 

Until this Court’s decision in Rochkind, Maryland adhered to the Frye-Reed

standard for the admissibility of expert testimony based on scientific principles.8 Id. at 4-

5. Under Frye-Reed, “prior to the admission of expert testimony based on the application 

of novel scientific techniques, the party seeking to use the expert testimony must establish 

that the particular methodology is valid and reliable.” Clemons v. State, 392 Md. 339, 363 

(2006). Over time, however, as Judge Adkins observed, the scope of the “general 

acceptance” standard, in practice although not expressly, has been expanded to include 

“testimony based on any scientific principle—new or old.” Savage v. State, 455 Md. 138,

8 Frye-Reed refers to the seminal case of Frye v. State, 293 F. 1013 (D.C. 1923), 

which articulated a standard for admissibility of novel scientific expert testimony, and Reed 

v. State, 283 Md. 374 (1978), which adopted the Frye standard in Maryland.
17

180 (2017) (Adkins, J., concurring). In addition, Maryland Frye-Reed jurisprudence 

expanded the general acceptance test to “not only to evaluate scientific methods, but also 

to assess scientific conclusions.” Id. at 181 (Adkins, J., concurring). The standard of 

appellate review for Frye-Reed determinations is de novo. Wilson v. State, 370 Md. 191, 

201 n.5 (2002).

B

Ms. Deane built her case on the inextricably linked testimony of two experts. The 

opinions of both experts rested on the assumption of certain disputed facts. For example, 

Dr. Kramer assumed the truth of the following facts: (1) Dr. Kim’s notes inaccurately 

reflected what Ms. Deane had reported to him; (2) Ms. Deane told Dr. Kim that she had 

experienced no improvement in her symptoms; and (3) Ms. Deane genuinely and truthfully 

answered Dr. Kramer’s questions and responded to his sensory tests to the best of her 

ability. As set forth above, the record included testimony that supported each of these 

assumed facts. 

The circuit court, however, found fault with Dr. Kramer’s opinion, concluding that 

it was 

based primarily on his examination of Plaintiff almost two years after the 

fact, and on the Plaintiff’s shaky, uncertain self-reporting to him then in 2018 

without him having reviewed the professionally detailed notes and records 

of Dr. Frankel’s and Dr. Kim’s treatments and examination of Plaintiff, 

which this Court found met Maryland’s Frye-Reed Standards of scientific, 

clinical, and analytical reliability as well as to be based on such requisite 

methodology as required therein. 

Because of his failure to review the notes and records of Drs. Frankel and Kim, the court 

found that Dr. Kramer’s conclusions “fail[ed] to meet, directly or inferentially, the 
18

Maryland Frye-Reed, Meda, and Maryland Rule 5-702 standards of scientific, clinical, and 

analytical reliability as well as to be based on such requisite methodology as required 

therein.” 

The court did not explain, however, why it subjected the notes of Ms. Deane’s 

treating physicians to a Frye-Reed analysis. The court also did not explain the basis on 

which it determined that those notes passed the Frye-Reed test or why Dr. Kim’s sensory 

examination passed the Frye-Reed test but Dr. Kramer’s sensory examination did not.

The circuit court improperly took sides in a credibility contest between Drs. Frankel

and Kim on one hand and Ms. Deane on the other hand. Dr. Frankel’s records indicate that 

Ms. Deane reported improvement of her symptoms—Ms. Deane denied reporting any 

improvement. Dr. Frankel’s records regarding her missed follow-up appointment stated, 

“patient’s complaints getting better” and that she was “not coming back[.]” Ms. Deane, 

however, testified that during that time, she was having the “same issues” and that her 

“tongue . . . never restored any feeling.”9

9 The circuit court described Ms. Deane’s recollection of her post-op visits with Dr. 

Frankel as “sketchy.” When first asked about the follow-up visit with Dr. Frankel, Ms. 

Deane initially didn’t remember that visit or what was said during it. After further 

questioning, however, Ms. Deane’s memory was refreshed somewhat, and although she 

did not recall details of what either she or Dr. Frankel said during that visit, she was 

adamant that she did not report any improvement, as reflected in her testimony:

Q: And you would not—that would include you do not have any 

recollection of whether or not you reported any improving to your numbness 

on the 19th?

A: No. But I didn’t.
19

Dr. Kim’s notes from Ms. Deane’s appointment three months later likewise 

reflected that Ms. Deane had reported improvement in her symptoms, stating that she was 

getting better, still feeling some tingling and that only the right anterior portion of her 

tongue was numb. In contrast, Ms. Deane testified that she told Dr. Kim that both sides of 

her tongue were numb and that she reported pain, throbbing, and tingling. 

Thus, the circuit court was confronted with medical records from Drs. Frankel and 

Kim that were disputed in multiple material respects by their patient. The conflicting 

evidence on these issues teed up a classic credibility contest for the jury—not the court—

to resolve. By taking those factual issues away from the jury, the circuit court erred.

The circuit court also impermissibly gave petitioners the benefit of favorable 

inferences drawn from evidence susceptible to more than one interpretation. For example, 

the court stated that Dr. Kramer “admits in his deposition [that he] may have changed his 

opined conclusion as to the acts and omissions of Dr. Frankel, Dr. Kim, and the Practice 

****

Q: And now, --and then you said—you also specifically said you denied 

reporting any improvement to the symptoms?

A: I did not report any improvement.

Q: Sounds like now you have a pretty okay memory of that visit; is that 

fair?

A: I just know that I didn’t report any because there wasn’t any.

Although Ms. Deane’s credibility will have to be determined by the factfinder at 

trial, for summary judgment purposes, the circuit court should have credited Ms. Deane 

with the benefit of the doubt, not the other way around. 
20

being professionally negligent” if he had been provided with their notes. The “admission”

by Dr. Kramer to which the court referred came in this exchange:

Q: Okay. You have not reviewed any medical records of providers other 

than yourself in this matter?

A: No, I have not.

Q: Have you reviewed the medical records of Casey Deane, specifically, 

Clay Kim’s neurosensory exam at three months postop?

A: No.

Q: Were you aware that such an exam exists?

A: No.

Q: Would that have been relevant to your opinions in this matter?

A: I don't know.

Q: Okay.

A: I suppose it depends on what was in there.

Q: Would a neurosensory exam at three months generally be pertinent to 

your opinions on nerve injury in this matter?

A: Pending the outcome of that exam. Yes.

Q: The results of that neurosensory exam at three months would be 

pertinent to the basis or concluding that Miss Deane does have a nerve injury; 

is that right?

A: I’m not sure if I follow the way you’re phrasing the question.

Q: Sure.

A: By example, however, if someone did an exam of her at three months 

and she had normal sensation, that would be quite pertinent to the outcome.

Q: And why would that be quite pertinent?
21

A: Because she didn’t have normal sensation when I saw her nearly two 

years after the injury.

Q: When you say she didn’t have normal sensation, what you’re saying 

is she didn’t report feeling your test, so she did not report --

A: That is correct.

Q: Okay. She did not report normal sensation to you?

A: That is correct.

It seems clear that although Dr. Kramer said that his opinions may have changed 

had he been provided with Dr. Frankel’s notes and Dr. Kim’s notes, he qualified that 

statement by saying that it depended on what the notes said. When pressed, Dr. Kramer 

gave an example of how the notes could have made a difference in his opinion—if the notes 

reflected that the patient reported normal sensation at three months. But that was just an 

example untethered to reality—the notes didn’t say Ms. Deane reported normal sensation 

after three months. Dr. Kramer’s testimony on that issue was, at best from petitioners’ 

standpoint, susceptible to more than one interpretation. In ruling on a summary judgment 

motion, the court improperly adopted the interpretation least favorable to Ms. Deane. See 

RDC Melanie Drive, LLC v. Eppard, 474 Md. 547, 564 (2021) (citation omitted) (“Upon 

review, this Court must consider the facts in a light most favorable to the non-moving 

parties, and ‘if those facts are susceptible to inferences supporting the position of the party 

opposing summary judgment, then a grant summary judgment is improper.’”).

The circuit court also erred in finding that the only reliable way for diagnosing the 

nature and extent of Ms. Deane’s injury was through exploratory surgery, which she did 
22

not have. Dr. Kramer testified that when the lingual nerve is injured, a patient with the 

same symptoms as Ms. Deane may very well experience improvement over the ensuing 

months. He further testified that his diagnosis of a severed lingual nerve was made possible 

in Ms. Deane’s case only because he examined her more than two years after the surgery:

Q: So how do you determine what injury she has?

A: Based on her exam at that moment and the time frame. And I may have 

referred a moment ago to the dependability with which lingual nerves heal, 

for various reasons; but after two-plus years, the likelihood goes down so that 

had there been an axonotmesis or a neurotmesis, I may have anticipated

greater improvement at two years, when I saw her.

Q: Um-hum. Right.

 So I guess what you’re saying is that while reduced sensation can be a 

symptom of neuropraxia, if it doesn't improve, it supports a diagnosis of 

neurotmesis?

A: For the sake of discussion in terms of defining the terms, axonotmesis and 

neurotmesis and neuropraxia indicate different levels of injury to the nerve.

Q: Um-hum.

A: When a nerve’s transected, the two ends are separated. The likelihood of 

them finding each other is limited. The other two injuries, the nerve itself is

still relatively in contact, and so the likelihood of some amount of 

improvement is way greater.

Q: Um-hum.

A: Based on the time frame was why I said that I thought there was a 

neurotmesis.

Petitioners did not counter Dr. Kramer’s testimony with any testimony, expert or 

otherwise. Thus, when the court found that exploratory surgery was the only reliable way 

to determine the nature and extent of Ms. Deane’s injury, it relied solely on excerpts from 

the medical literature provided by the parties. 
23

There are two problems with the court’s approach. First, expert testimony is 

required to establish the standard of care, breach, and causation elements of a medical 

negligence claim. Learned treatises, however, are admissible only “when there is an expert 

witness on the stand.” JOSEPH F. MURPHY,JR., MARYLAND EVIDENCE HANDBOOK § 813, at 420 

(4th ed. 2010); see also Md. Rule 5-803(b)(18). Yet here, the court was interpreting the 

medical literature without the assistance of expert testimony. 

Second, and related to the first, the medical literature does not appear to be 

inconsistent with Dr. Kramer’s testimony that the passage of two years since the surgery 

was the factor that enabled him to diagnose the severed lingual nerve utilizing the sensory 

examination. As Dr. Kramer testified, and as the medical literature relied upon by the court 

seems to reflect, a patient with the same symptoms reported by Ms. Deane may experience 

improvement in the months following the procedure. 

So, although the sensory tests may reliably assess the patient’s symptoms, if the 

patient is still within the window of time in which improvement is possible, it’s too early 

to tell the precise nature and extent of the injury without exploratory surgery. But that’s 

not the case after two years, according to Dr. Kramer. The medical literature cited by the 

court does not appear to contradict Dr. Kramer on this point. Although the jury might, 

depending on the evidence, have a basis to conclude that exploratory surgery is necessary

to diagnose the injury even after two years, the circuit court did not have the discretion to 

so find on summary judgment.

Finally, as Dr. Kramer explained, his examination of Ms. Deane assessed her 

condition at a specific snapshot in time—the day he examined her. But so did Dr. Kim’s 
24

examination at three months post-surgery, and he used some, but not all, of the same 

sensory tests performed by Dr. Kramer. While we recognize that the results of the testing 

from these different points in time were inconsistent and contradictory, we have not been 

directed to any caselaw or evidence in this record that mandates the conclusion reached by 

the circuit court that the latter test performed by Dr. Kramer was suspect and the earlier 

one by Dr. Kim was reliable. Again, any tension between the two tests should have been 

left for the jury to sort out. 

The Admissibility of Dr. Kotikian’s Opinion

The circuit court excluded Dr. Kotikian’s opinions on three grounds: (1) because 

they were based on Dr. Kramer’s opinion, which the court had deemed unreliable and 

inadmissible; (2) because Dr. Kotikian discounted Dr. Kim’s findings, as reflected in his 

notes, that three months after surgery, Ms. Deane was reporting improvement of her 

symptoms; and (3) under Meda v. Brown, 318 Md. 418 (1990). We conclude that the 

circuit court erred in its analysis of each ground, and we, therefore, hold that the court erred 

in its ruling on Dr. Kotikian’s testimony.

Dr. Kotikian testified at his deposition that, based on his review of Ms. Deane’s 

description of her symptoms and the clinical findings of Dr. Kramer, he intended to opine 

at trial, to a reasonable degree of medical certainty, that Ms. Deane suffered a permanent 

lingual nerve injury. In addition, he was prepared to opine at trial that 

[t]he injury to each lingual nerve likely occurred while the third molar in 

question was being sectioned and the bur traversed the lingual plate causing 

the lingual nerve to be severed, or appropriate and known steps were not 

taken to avoid transecting the nerve while cutting the gum tissues to expose 

and elevate the tooth. These injuries could have been prevented if a retractor 
25

or a periosteal elevator (#9) had been placed between the lingual plate and 

the periosteum during the time of sectioning and/or adequate buccal and 

distal troughs were done around the teeth. Either of these actions would be 

considered deviations from the applicable standard of care and caused injury 

and harm to the patient. 

Having determined that the circuit court erred in its analysis of Dr. Kramer’s 

proffered testimony, we also conclude that the Court erred in excluding Dr. Kotikian’s 

testimony on the ground that it relied on Dr. Kramer’s testimony.

Similarly, Dr. Kotikian’s failure to rely on Dr. Kim’s notes about Ms. Deane’s

improving condition should not have disqualified his testimony. The court acknowledged 

that Ms. Deane disputed that she had reported any improvement to Dr. Kim, but

nevertheless granted summary judgment “principally due to her unjustified[10]failure” to 

follow-up with Dr. Kim. The court did not explain the connection of Ms. Deane’s failure 

to return for the follow-up appointment with the factual dispute over what Ms. Deane 

reported to Dr. Kim about her symptoms. As an expert, Dr. Kim was entitled to assume 

that Dr. Kramer’s examination and diagnosis were reliable. The court simply found Dr. 

Kim to be more credible than Dr. Kramer, even though as an expert, Dr. Kim was entitled 

to assume the reliability of Dr Kramer’s examination and diagnosis. Making that 

credibility determination put the Court in the position of factfinder. Thus, it was clear error 

to exclude Dr. Kotikian’s testimony on that ground.

10 This is another example of impermissible fact-finding. The jury, not the court, 

should decide whether Ms. Deane’s failure to keep a follow-up appointment was 

“unjustified.”
26

Finally, the circuit court erred in finding that Dr. Kotikian’s testimony was 

inadmissible under Meda v. Brown, 318 Md. 418 (1990). The court interpreted Meda as 

standing for the proposition that “[i]f the subject injury is a well-known complication or 

risk of medical or dental procedure and could occur in the absence of any medical or dental 

negligence on behalf of the surgeon, then an expert opinion upon an ‘inference of 

negligence theory’ is not viable or admissible[.]” Citing Ms. Deane’s signature on the 

informed consent form from the day of the oral surgery as well as certain medical 

authorities, the circuit found “that the conditions that Plaintiff complains of are well known 

complications of the procedure Plaintiff underwent and do occur in the absence of 

negligence by the surgeon.” Because the court concluded that the injuries allegedly 

suffered by Ms. Deane were known risks that could be realized without negligence on the 

surgeon’s part, it determined that Dr. Kotikian’s “inference of negligence” was 

inadmissible under Meda. 

Although the literature cited by the court says that if the lingual nerve is situated in 

certain positions, “it is at risk of damage when the associated tooth is removed regardless 

of the care employed during surgery[,]” there does not appear to be any indication that 

the specific injury alleged here—the bilateral severance of the lingual nerve—is one such 

injury that can occur without regard to the care employed by the surgeon. 

Dr. Kotikian addressed that very point at his deposition when questioned by Ms. 

Deane’s counsel:

Q: The literature that [petitioners’ counsel] cited indicates that you can 

have an injury to the lingual nerve when everything is done within the 
27

standard of care. Does that hold true for a severance of the lingual nerve as 

well?

A: No. No. So injury is broad, so it can be --repeat your question again.

Q: [Petitioners’ counsel] said and you agreed that you can do -- that a 

surgeon can do everything within the standard of care and still have injury to 

the lingual nerve.

My question is: Does that hold true when you have a severance of the 

lingual nerve as well? Can you do everything -- can a surgeon do everything 

within the standard of care and still severe the nerve?

A: Not if the appropriate measures are taken.

Q: And is severing of the nerve -- In the literature that you’ve reviewed, 

is severing of the lingual nerve distinguished from the data on injury to the 

lingual nerve?

A: So injury can be the bruising, partial tear, so general; whereas, full 

tear would be no sensation.

Q: Right. And can you have a severance of the nerve and still be doing 

things within the standard -- everything within the standard of care?

Or does it have to be a breach in the standard of care to have a 

severance of the nerve?

A: Breach in the standard.

Q: And in Ms. Deane’s case do you believe that she suffered a severance 

of the lingual nerve bilaterally?

A: Yes.

The circuit court pointed to no evidence in the record that refuted this testimony, 

and the only expert testimony in the summary judgment record on this issue came from Dr. 

Kotikian. For the court to have nonetheless “found” that Ms. Deane’s alleged injuries 

could have occurred without negligence, it had to discount Dr. Kotikian’s testimony on 

that issue and impose its own interpretation of the medical literature, without the aid of any 
28

expert testimony to explain the text. Here again, Dr. Kotikian’s credibility was a matter 

for the jury to decide.

In addition, the circuit court misapplied Meda. In Meda, the plaintiff sustained 

compression injuries to the ulnar nerve in her arm during a bilateral breast biopsy surgery. 

318 Md. at 420-21. Her arm was restrained during the procedure. Id. at 426. The jury 

found in favor of the plaintiff, but the judge granted judgment notwithstanding the verdict, 

finding that “[t]he testimony of plaintiff’s two experts . . . rested upon inferences and thus 

constituted the kind of res ipsa loquitur evidence [that is] barred . . . .” Id. at 420. The 

Court of Special Appeals reversed, holding “that the concept of res ipsa loquitur was 

applicable because laymen could properly infer negligence from the happening of an 

unusual injury to a healthy part of the patient’s body[.]” Id. 

We affirmed, not based on res ipsa loquitur, which we found inapplicable, but rather 

“because the testimony was sufficient to support the inferential conclusion of negligence 

drawn by the plaintiff’s experts.” Id. Of particular note here, one of the plaintiff’s experts 

in Meda testified that the injury suffered by the plaintiff—compression injury to the ulnar 

nerve—was a well-known risk in the medical profession, but that “the standard of care 

requires that the arm be positioned and secured in such a manner that nerve compression 

will not occur.” Id. at 426. The plaintiff’s experts could not determine precisely how the 

plaintiff’s nerve was compressed—as there were several possible ways it could have 

happened—but both experts opined that the injury was caused by the defendants’ deviation 

from the standard of care in failing to protect the ulnar nerve during the procedure. Id. at 

427. 
29

In affirming, we took note of the long-held principle that negligence “can be 

established by the proof of circumstances from which its existence may be inferred.” Id.

at 427-28 (citation omitted). We held:

In the case before us, however, the jurors were not asked to draw an inference 

unaided by any expert testimony. The plaintiff's experts, armed with their 

fund of knowledge, drew certain inferences from the circumstances. Having 

examined the testimony of the experts, we conclude that the trial judge did 

not err in permitting that testimony and allowing the doctors to base their 

opinions on a combination of direct and circumstantial evidence. The 

doctors recited in detail the physical facts they considered, and the medical 

facts they added to the equation to reach the conclusion they did. The facts 

had support in the record, and the reasoning employed was based upon logic 

rather than peculation or conjecture. 

Id. at 428.

Ms. Deane’s theory of negligence substantially tracks the analysis permitted under 

Meda. In Meda, the plaintiff’s experts applied their medical expertise to infer from the 

circumstantial evidence that medical negligence caused the plaintiff’s injury; here, Ms. 

Deane’s expert, Dr. Kotikian, likewise applied his knowledge and experience to infer 

negligence based on Ms. Deane’s testimony about her symptoms and Dr. Kramer’s 

assessment that the lingual nerve was severed. 

Accordingly, we conclude that the circuit court mistakenly applied Meda in 

excluding Ms. Deane’s experts.

C

We are remanding this case for further proceedings. In between the circuit court’s 

dismissal of Ms. Deane’s case with prejudice and the Court of Special Appeals’ reversal 

of the same, this Court issued its decision in Rochkind v. Stevenson. There, this court 
30

abandoned the Frye-Reed approach in favor of the approach articulated by the United 

States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 

(1993). In Daubert, the Supreme Court held that Rule 702 of the Federal Rules of Evidence 

“superseded Frye’s general acceptance test.” Rochkind, 471 Md. at 5. In its place, the 

Supreme Court “provided a list of flexible factors to help courts determine the reliability 

of expert testimony.” Id. 

In Rochkind, we adopted Daubert with the hope that it would “streamline the 

evaluation of scientific expert testimony under Rule 5-702.” Id. at 35. Thus, going 

forward, “trial court[s] may apply some, all, or none of the [Daubert] factors depending on 

the particular expert testimony at issue.” Id. at 37. Those factors include:

(1) whether a theory or technique can be (and has been) tested;

(2) whether a theory or technique has been subjected to peer review and 

publication;

(3) whether a particular scientific technique has a known or potential rate of 

error;

(4) the existence and maintenance of standards and controls; []

(5) whether a theory or technique is generally accepted[;]

****

(6) whether experts are proposing to testify about matters growing naturally 

and directly out of research they have conducted independent of the 

litigation, or whether they have developed their opinions expressly for 

purposes of testifying;

(7) whether the expert has unjustifiably extrapolated from an accepted 

premise to an unfounded conclusion;

(8) whether the expert has adequately accounted for obvious alternative 

explanations;

(9) whether the expert is being as careful as he [or she] would be in his [or 

her] regular professional work outside his [or her] paid litigation consulting; 

and

(10) whether the field of expertise claimed by the expert is known to reach 

reliable results for the type of opinion the expert would give.
31

Id. at 35-36. 

On remand, the trial court will have the discretion to determine whether and to what 

extent petitioners will be permitted to challenge the admissibility of Ms. Deane’s experts’ 

testimony under the standard adopted in Rochkind. Such discretion will include, but not 

be limited to, determining whether the briefing will be re-opened to allow for different 

arguments to be made and defining which Daubert factors and issues will be heard. In 

light of the nature and extent of the factual and credibility findings made by the trial judge 

that granted summary judgment and to avoid any appearance of partiality going forward, 

this case should be assigned to a different judge for all further proceedings.

JUDGMENT OF THE COURT OF SPECIAL 

APPEALS VACATED. CASE REMANDED TO 

THE COURT OF SPECIAL APPEALS WITH 

INSTRUCTIONS TO REVERSE THE JUDGMENT 

OF THE CIRCUIT COURT FOR CALVERT 

COUNTY AND REMAND WITH INSTRUCTIONS 

TO CONDUCT FURTHER PROCEEDINGS 

CONSISTENT WITH THIS OPINION. COSTS TO 

BE PAID BY PETITIONERS.
IN THE COURT OF APPEALS

OF MARYLAND

No. 43

September Term, 2021

______________________________________

BENNETT FRANKEL, ET AL.

v.

CASEY LOU DEANE 

______________________________________

*Getty, C.J.

Watts

Hotten

Booth

Biran

Gould

McDonald, Robert N. (Senior 

Judge, Specially Assigned),

JJ.

______________________________________

Dissenting Opinion by Watts, J.

______________________________________

Filed: August 25, 2022

*Getty, C.J., now a Senior Judge, participated in 

the hearing and conference of this case while an 

active member of this Court. After being 

recalled pursuant to Md. Const., Art. IV, § 3A, 

he also participated in the decision and adoption 

of this opinion.

Circuit Court for Calvert County

Case No. C-04-CV-18-000396

Argued: March 7, 2022 
Respectfully, I dissent. Like the Majority, I would hold that the Circuit Court for 

Calvert County abused its discretion in refusing to admit Casey Lou Deane’s expert

witnesses’ testimony and erred as a matter of law in granting summary judgment. 

However, because the issues in this case do not implicate the factors set forth in Daubert 

v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94 (1993) and other factors 

adopted by this Court in Rochkind v. Stevenson, 471 Md. 1, 4-5, 236 A.3d 630, 633 

(2020), reconsideration denied (Sept. 25, 2020), I would not remand the case for 

application of Rochkind. The main issues in this case are: whether the circuit court erred 

in ruling that, under this Court’s holding in Meda v. Brown, 318 Md. 418, 428, 569 A.2d 

202, 206-07 (1990), for expert testimony that a breach of the standard of care may be 

inferred to be admissible in a medical malpractice case, the evidence must demonstrate that 

the alleged injury is not something that would have happened in the absence of negligence;

whether contributory negligence can be determined at the summary judgment stage based 

on facts found by the trial court; and whether in a medical malpractice case an expert is 

required to review a treating physician’s notes for the expert’s testimony to be admissible.

I would affirm the judgment of the Court of Special Appeals reversing the circuit court’s 

grant of summary judgment. And because the issues concerning the admissibility of Ms. 

Deane’s experts’ testimony were resolved by the reversal and do not involve an issue 

preserved under Frye-Reed or Maryland Rule 5-702, the case should be remanded for trial, 

rather than for a hearing under Rochkind.

In 2018, Ms. Deane filed a malpractice claim against Dr. Bennett Frankel and his

practice, Southern Maryland Oral and Maxillofacial Surgery, P.A., alleging that Dr. 
- 2 -

Frankel breached the standard of care in extracting her wisdom teeth and in treating a nerve 

injury after the surgery.

1 Ms. Deane alleged that she suffered permanent loss of feeling in 

her tongue as a result of Dr. Frankel having cut the lingual nerves in her jaw in the process 

of extracting her wisdom teeth.2 In support of the claim, Ms. Deane designated two experts: 

Dr. Richard Kramer and Dr. Armond Kotikian. According to Ms. Deane’s expert witness 

designations and the experts’ depositions, the first expert, Dr. Kramer, a dentist, would 

have testified that based on neurosensory testing, Ms. Deane suffered from a bilateral 

transection (severing) of the lingual nerves and that the injury was permanent. The second

expert, Dr. Kotikian, also a dentist, was to testify that Dr. Frankel breached the standard of 

1On September 13, 2019, Ms. Deane filed an amended complaint naming Dr. Clay 

Kim, a member of Dr. Frankel’s practice, as a defendant in the matter and alleging that, 

after the tooth extraction, Dr. Kim was negligent in failing to conduct proper testing and in 

failing to refer her to an appropriate specialist.

2On January 14, 2016, Dr. Frankel surgically removed Ms. Deane’s wisdom teeth 

at Southern Maryland Oral & Maxillofacial Surgery, P.A. (“the practice”). Following the 

surgery, Ms. Deane complained to the practice of a lack of sensation in, or numbness 

affecting, her tongue and her mouth. A representative of the practice encouraged Ms. 

Deane to rest and wait for the effects of the anesthesia to fade. A few days after the surgery, 

Ms. Deane returned to see Dr. Frankel for a follow-up appointment and reported the 

numbness in her tongue. Ms. Deane did not attend an additional scheduled appointment 

for the following week and notified Dr. Frankel that she would not be returning. Ms. Deane 

felt that Dr. Frankel was not taking her condition seriously. A few months later, in April 

2016, Ms. Deane returned to the practice and saw a different dentist, Dr. Clay Kim, because 

Dr. Frankel had retired. At the appointment, Dr. Kim performed neurosensory testing, a 

“clinically useful method to diagnose” injuries to the lingual nerve, whereby the patient 

reports whether or not he or she can feel, taste, and sense in response to stimuli such as 

sharp objects, hot or cold substances, and bitter substances. Dr. Kim’s notes contain the 

following diagnostic assessment: “right lingual nerve paresthesia, improving[,]” a mild 

injury, and reported that Ms. Deane described some improvement in her condition. Ms. 

Deane disputes ever reporting improvement in her condition to Dr. Frankel or Dr. Kim.

Two years later, Ms. Deane continued to experience a lack of sensation in her 

tongue. Ms. Deane saw Dr. Richard E. Kramer and was eventually diagnosed with a 

bilateral transection of the lingual nerve, a permanent condition.
- 3 -

care in performing Ms. Deane’s surgery and that she had “anesthesia” of the tongue likely 

caused by severance of the bilingual nerves by Dr. Frankel. Dr. Kotikian was also to testify

that Dr. Clay Kim, a member of Dr. Frankel’s practice, was negligent in failing to refer 

Ms. Deane to an appropriate specialist to repair the nerve damage. 

The defendants moved for summary judgment, contending that the proposed expert 

testimony was inadmissible because Dr. Kramer’s review of the medical record was 

allegedly not complete. Specifically, the defendants alleged that Dr. Kramer did not review 

the notes of Dr. Frankel or Dr. Kim—reporting that Ms. Deane had improvement 

inconsistent with a bilateral severance—and thus, according to the defendants, Dr. 

Kramer’s testimony was inadmissible. According to the defendants, because Dr. Kotikian 

relied on Dr. Kramer’s allegedly faulty conclusions, which were not based on facts in Dr. 

Frankel’s and Dr. Kim’s notes, Dr. Kotikian’s opinion was also inadmissible. In addition, 

according to the defendants, under Meda, in the absence of physical evidence of injury, Dr. 

Kotikian was not permitted to render an opinion that negligence could be inferred based on 

the circumstances of the case. The defendants argued that this was the case because nerve 

damage is a known risk of wisdom tooth extractions, as opposed to the type of injury that 

does not ordinarily occur in the absence of negligence.

The circuit court granted summary judgment, finding that Dr. Kramer’s opinion was 

inadmissible because Dr. Kramer had not reviewed the notes of Dr. Frankel and Dr. Kim. 

The circuit court explained that Dr. Kramer’s opinion was grounded mainly on Ms. 

Deane’s subjective self-reporting and his own diagnostic tests. The circuit court found that 

Dr. Kotikian’s testimony was inadmissible because it was based largely on conclusions 
- 4 -

drawn by Dr. Kramer, who had not reviewed the treating physicians’ notes. In granting 

summary judgment, the circuit court stated that Dr. Kotikian’s testimony was inadmissible 

under Meda, Frye-Reed, and Maryland Rule 5-702, and that Ms. Deane was contributorily

negligent in failing to attend follow-up appointments. In explaining its ruling on 

contributory negligence, the circuit court stated that it found “as key facts that the 

Plaintiff’s failure to attend follow-up appointments as recommended and instructed 

prevented a timely referral to a nerve repair specialist for microneuroexploratory 

surgery[.]”

The Court of Special Appeals, in an unreported opinion, reversed the decision of the 

circuit court. See Casey Lou Deane v. S. Md. Oral and Maxillofacial Surgery, P.A. et al., 

No. 0218, Sept. Term, 2020, 2021 WL 3523939, at *7-9 (Md. Ct. Spec. App. Aug. 11, 

2021). The Court of Special Appeals held that a failure to review records of treating 

physicians goes to the weight of expert testimony rather than to its admissibility, that the 

circuit court misinterpreted this Court’s holding in Meda,

3

and that the finding of 

contributory negligence was inappropriate at the summary judgment stage. See Deane, 

3

In Meda, 318 Md. at 422, 426-29, 569 A.2d at 204, 206-08, this Court held that, in 

a medical malpractice case, an expert may render an opinion based on inferences drawn 

from the facts and circumstances of the case. This Court concluded that, although the two 

experts at issue offered an inference “based upon [their] knowledge of the facts and upon 

[their] expertise” and although they could not “testify as to the precise act of negligence 

that caused injury[,]” the evidence was legally sufficient to support the verdict because the 

experts reached permissible conclusions. Id. at 427-28, 569 A.2d at 206. This Court 

determined that an expert may rely upon circumstantial evidence in rendering an opinion, 

reaffirmed the principle that in complex cases a plaintiff must offer expert testimony to 

assist the jury in determining negligence and causation, and held that the trial court did not 

err in allowing the experts “to base their opinions on a combination of direct and 

circumstantial evidence.” Id. at 427-28, 569 A.2d at 206-07.
- 5 -

2021 WL 3523939, at *7-9. 

Against this backdrop, the Majority vacates the decision of the Court of Special 

Appeals and directs the Court of Special Appeals to reverse and remand the case for the 

circuit court to apply Rochkind, i.e., the Daubert factors and additional ones adopted in 

Rochkind. See Maj. Slip. Op. at 31. In doing so, the Majority states:

On remand, the trial court will have the discretion to determine 

whether and to what extent petitioners will be permitted to challenge the 

admissibility of Ms. Deane’s experts’ testimony under the standard adopted 

in Rochkind. Such discretion will include, but not be limited to, determining 

whether the briefing will be re-opened to allow for different arguments to be 

made and defining which Daubert factors and issues will be heard. 

Maj. Slip Op. at 31. I would not remand the case to the circuit court to apply the Daubert

factors and additional ones adopted in Rochkind and give the court the discretion to 

determine whether briefing will be reopened to allow different arguments to be made. 

Instead, I would affirm the Court of Special Appeals’s decision and remand the case for 

trial. In Rochkind, 471 Md. at 38, 236 A.3d at 652, this Court stated that:

Since Daubert is a new interpretation of Rule 5-702, our decision today 

“applies to this case and any other cases that are pending on direct appeal 

when this opinion is filed, where the relevant question has been preserved 

for appellate review.” Kazadi[ v. State], 467 Md. [1,] 47, 223 A.3d 554[, 581 

(2020]; Hackney v. State, 459 Md. 108, 119, 184 A.3d 414[, 421] (2018); 

State v. Daughtry, 419 Md. 35, 77 n.26, 18 A.3d 60[, 85 n.26] (2011). In this 

context, the “relevant question” is whether a trial court erred in admitting or 

excluding expert testimony under Maryland Rule 5-702 or Frye-Reed.

This statement did not mean that the holding in Rochkind would apply to the admission of 

expert testimony in cases in which the relevant question preserved for review had nothing 

to do with the admission of expert testimony under Frye-Reed and only nominally 

pertained to Maryland Rule 5-702. The intent of the language could not have been to 
- 6 -

essentially give a do-over to any case pending on appeal involving an objection to the

admission of expert testimony for any reason.

Rather, in Rochkind, this Court stated that its new interpretation of Maryland Rule 

5-702 (adopting the Daubert standard) would apply to Rochkind and any other cases

pending on appeal where the relevant question had been preserved for appellate review. 

The Court defined the relevant question as whether the trial court erred in admitting or 

excluding expert testimony under Maryland Rule 5-702 or Frye-Reed. In this case, the 

circuit court made no substantive ruling with respect to Frye-Reed or Maryland Rule 5-

702. In order for the language concerning the relevant question having been preserved for 

appellate review to have any meaning with respect to the application of Rochkind, there 

would need to have been an argument made and a ruling by the trial court pertaining to the 

admissibility of evidence under Frye-Reed or some aspect of Maryland Rule 5-702.

Neither occurred in this case. In its opinion, the Court of Special Appeals observed:

Before the trial court, Dr. Frankel and Southern Maryland allegedly 

challenged the admissibility of the opinions of Drs. Kramer and Kotikian, in 

part, based on Frye-Reed, which provides that when expert testimony was 

based on a novel scientific principle or discovery its admissibility was 

predicated on its general acceptance “in the particular field in which it 

belongs.”

Deane, 2021 WL 3523939, at *6 n.4. The Court of Special Appeals, however, summarized

the defendants’ contentions as alleging that “there is no physical or objective evidence of 

the claimed bilateral severing injury” and that, because Dr. Kramer failed to review the 

treating physicians’ notes, he did not consider evidence that may have led him to reach a 

different conclusion about Ms. Deane’s injury. Id. at *6 (cleaned up). In the end, the Court 
- 7 -

of Special Appeals stated: “The bases for the trial court’s rulings on admissibility, although 

referring to Frye-Reed, did not implicate the ‘general acceptance’ standard nor did they 

invoke the analytical factors put forth in Daubert.” Id. at *6 n.4. I agree.

Put simply, there is no need to remand the case for consideration of the ten factors 

adopted by this Court in Rochkind. In Rochkind, 471 Md. at 4-5, 236 A.3d at 632-33, this 

Court abandoned the standard for admissibility of expert testimony set forth in Frye v. 

United States, 293 F. 1013, 1014 (D.C. Cir. 1923) and adopted by this Court in Reed v. 

State, 283 Md. 374, 382, 391 A.2d 364, 368 (1978). Replacing the Frye-Reed approach, 

this Court adopted factors4set forth in Daubert, 509 U.S. at 593-94, as well as additional 

factors5contained in the Advisory Committee Note to Federal Rule of Evidence 702. 

4

In Rochkind, 471 Md. at 35, 236 A.3d at 650, this Court adopted the following 

Daubert factors:

(1) whether a theory or technique can be (and has been) tested;

(2) whether a theory or technique has been subjected to peer review and 

publication;

(3) whether a particular scientific technique has a known or potential rate of 

error;

(4) the existence and maintenance of standards and controls; and

(5) whether a theory or technique is generally accepted.

(Quoting Daubert, 509 U.S. at 593-94; Fed. R. Evid. 702 Advisory Committee Note). 

5

In Rochkind, 471 Md. at 35-36, 236 A.3d at 650, this Court adopted the following

additional factors:

(6) whether experts are proposing to testify about matters growing naturally 

and directly out of research they have conducted independent of the 
- 8 -

Rochkind, 471 Md. at 35-36, 236 A.3d at 650. In so doing, as discussed above, this Court 

stated that its decision would apply to any case pending on appeal where the relevant 

question had been preserved for appellate review.6

litigation, or whether they have developed their opinions expressly for 

purposes of testifying;

(7) whether the expert has unjustifiably extrapolated from an accepted 

premise to an unfounded conclusion;

(8) whether the expert has adequately accounted for obvious alternative 

explanations;

(9) whether the expert is being as careful as he [or she] would be in his [or 

her] regular professional work outside his [or her] paid litigation consulting; 

and

(10) whether the field of expertise claimed by the expert is known to reach 

reliable results for the type of opinion the expert would give.

(Quoting Fed. R. Evid. 702 Advisory Committee Note) (alterations in original).

6As previously explained, though:

In Griffith v. Kentucky, 479 U.S. 314, 322[] (1987), the Supreme Court held 

that not applying a newly announced constitutional rule to criminal cases 

pending on direct appeal is not consistent with basic principles of 

constitutional adjudication. In light of the Supreme Court’s holding in 

Griffith, in some instances, this Court has given the application of new 

holdings to cases that were pending on appeal, where the new holding 

involved an issue of constitutional significance in criminal law. See, e.g., 

Hackney v. State, 459 Md. 108, 119, 184 A.3d 414, 421 (2018); State v. 

Daughtry, 419 Md. 35, 77 n.26, 18 A.3d 60, 85 n.26 (2011). Neither the 

holding in Griffith concerning the application of a newly announced 

constitutional rule nor the application of Griffith in Kazadi v. State, 467 Md.

1, 47, 223 A.3d 554, 581 (2020), and Daughtry would apply to a change of 

the evidentiary standard for use under Maryland Rule 5-702. Here, the 

Majority’s holding should apply to this case and future trials; the Majority’s 

opinion should not be construed as giving rise to any grounds for relief in 

cases in which the trial occurred before the issuance of this opinion. 
- 9 -

In this case, despite the circuit court’s ruling having mentioned Frye-Reed, there 

was no meaningful challenge to the admissibility of the proposed experts’ testimony under 

Frye-Reed and no real finding by the circuit court concerning Frye-Reed. In describing 

Dr. Frankel’s contention as to the admissibility of Dr. Kramer’s and Dr. Kotikian’s

testimony, the Majority states:

Putting it less charitably, Dr. Frankel averred that “the entire factual 

basis of [Ms. Deane’s] case depends on [her] experts’ rewriting the medical 

history pursuant to the self-serving statements of [Ms. Deane] made for 

purposes of litigation.” Thus, he contended that the expert testimony of Drs. 

Kramer and Kotikian were inadmissible under Meda, the Frye-Reed

standard, and Rule 5-702, and that without expert testimony, Ms. Deane 

could not present a prima facie case of negligence.

Maj. Slip Op. at 9 (alterations in original). The circuit court’s decision to exclude Ms. 

Deane’s experts’ testimony was based on the misconception that an expert is required to 

review a treating physician’s notes for the expert’s testimony to be admissible, a 

misapplication of this Court’s holding in Meda, and a determination of contributory 

negligence based on fact finding by the court.

Conceivably, requiring an expert witness to have reviewed a treating physician’s 

notes could be cast as a finding that there was an insufficient factual basis for the expert’s 

testimony under Maryland Rule 5-702, but the circuit court’s sole ground for finding Dr.

Kramer’s testimony inadmissible was his alleged failure to have reviewed Dr. Frankel’s

and Dr. Kim’s notes. Clearly, in a medical malpractice case, the finding of an alleged 

Rochkind, 471 Md. at 67 n.6, 236 A.3d at 669 n.6 (Watts, J., dissenting). 
- 10 -

analytical gap7in an expert’s data and conclusions, under Maryland Rule 5-702 prior to 

Rochkind or after the adoption of the Daubert factors and additional factors in Rochkind,

would not hinge solely on whether an expert reviewed a treating physician’s notes.

8

7

In 2009, in Blackwell v. Wyeth, 408 Md. 575, 591, 605, 971 A.2d 235, 245, 253 

(2009), in discussing Frye-Reed jurisprudence, this Court noted that various federal courts 

had “had occasion to scrutinize the reliability of the analytical framework utilized by an 

expert in formulating a novel theory of science[.]” (Cleaned up). We noted that the concept 

of the “analytical gap” had developed and that the concept had been used by federal courts 

applying Daubert and by some State courts applying Frye. See Blackwell, 408 Md. at 604-

07, 971 A.2d at 253-54. We stated that “[g]enerally accepted methodology[ ] must be 

coupled with generally accepted analysis in order to avoid the pitfalls of an ‘analytical 

gap[,]’” id. at 608, 971 A.2d at 255, and incorporated the concept of the “analytical gap” 

into Maryland’s Frye-Reed analysis.

Later, in Rochkind v. Stevenson, 454 Md. 277, 295-96, 164 A.3d 254, 265 (2017),

when the case first came to the Court, we applied the “analytical gap” concept under 

Maryland Rule 5-702(3) and held that the expert testimony at issue lacked a sufficient 

factual basis, as required by the Rule, and that the trial court abused its discretion in 

allowing the expert to render an opinion that lead exposure can cause ADHD generally and 

that lead caused the plaintiff’s ADHD specifically. We explained that the trial court had 

“failed to determine whether [the] proffered sources logically supported [the expert’s]

opinion that lead exposure can cause ADHD.” Id. at 295, 164 A.3d at 264. In applying 

the “analytical gap” concept, this Court concluded that the trial court erred by “fail[ing] to 

check for an ‘analytical gap’ between the expert’s data and her conclusion.” Id. at 295, 

164 A.3d at 264. 

8By way of analogy, this Court has held that in order to render an expert opinion in 

medical contexts, an expert witness need not conduct a physical examination of the subject. 

In Levitas v. Christian, 454 Md. 233, 254, 164 A.3d 228, 240 (2017), we explained that 

“[a]n expert’s factual basis ‘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[]’” and affirmed the 

Court of Special Appeals’s reversal of the trial court’s decision to exclude an expert’s 

testimony as to lead-source causation and medical causation. (Citations omitted). We held 

that the expert in Levitas should have been permitted to testify as to lead-source causation 

because the expert relied upon lead readings found on the interior of the dwelling, because 

the plaintiff experienced elevated blood-lead levels when he lived there, and because the 

expert acknowledged other sources existed. See id. at 249, 164 A.3d at 237. As for 

medical causation, although the expert did not perform cognitive tests himself, he was 

qualified as an expert by virtue of his familiarity with the testing and literature and 
- 11 -

To remand the case for an application of the Daubert factors and additional ones

adopted by this Court in Rochkind and give the circuit court unguided discretion to allow

additional briefing of new arguments is in essence to provide the defendants a second bite 

at the apple in challenging the admissibility of Ms. Deane’s expert witnesses’ testimony—

this time under Rochkind as opposed to the grounds previously relied upon and rejected by 

the Court of Special Appeals and this Court.

For the above reasons, respectfully, I dissent.

possessed a sufficient factual basis to offer an opinion based on the reports of others as 

well as medical studies. See id. at 253-54, 164 A.3d at 240. In so holding, we specifically 

rejected a rule that in order to render such an opinion, an expert must meet personally with 

the plaintiff. See id. at 253-54, 164 A.3d at 240.

Given our holding that a physical examination is not a predicate for offering expert 

opinion, it stands to reason that not reviewing the notes of a treating physician would also 

not bar the admission of expert testimony and would instead go to the weight to be accorded 

the expert’s opinion.