Mayor of Baltimore v. Theiss

729 A.2d 965, 354 Md. 234, 1999 Md. LEXIS 252
CourtCourt of Appeals of Maryland
DecidedMay 17, 1999
Docket123, Sept. Term, 1998
StatusPublished
Cited by17 cases

This text of 729 A.2d 965 (Mayor of Baltimore v. Theiss) is published on Counsel Stack Legal Research, covering Court of Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mayor of Baltimore v. Theiss, 729 A.2d 965, 354 Md. 234, 1999 Md. LEXIS 252 (Md. 1999).

Opinions

CATHELL, Judge.

Appellant Mayor and City Council of Baltimore appeals from a verdict entered in the Circuit Court for Baltimore City in favor of appellee Darla J. Theiss. Appellant claims the trial court erred in finding appellant waived its right to object at trial with respect to the admission of portions of the videotaped deposition of appellee’s expert medical witness. The trial court ruled that, based upon the Court of Special Appeals’ opinion in Davis v. Goodman, 117 Md.App. 378, 700 A.2d 798 (1997), appellant waived its objections made during the videotaped deposition because it failed to specify during the deposition the grounds for its objections. Appellant appealed to the Court of Special Appeals. This Court issued a writ of certiorari on its own motion before the intermediate appellate court heard arguments in the matter to address the important issue raised by this appeal.

I. Facts

Appellee Darla J. Theiss fell and broke her ankle while walking to her car from a hardware store in the Brooklyn area of Baltimore. Appellee filed a civil action in the Circuit Court for Baltimore City seeking damages from the Mayor and City Council of Baltimore, appellant, for injuries she sustained as a result of the fall. A jury found in favor of appellee, awarding her $128,000 in damages.

Dr. Mark S. Myerson, M.D., was one of the physicians who treated appellee and was deposed on videotape as an expert medical witness for appellee. During the deposition, appellee’s counsel questioned Dr. Myerson at great length about his opinion as to appellee’s injuries, possible treatments available to her, which treatment he would recommend, and some estimates for the cost of the treatments. When eliciting Dr. Meyerson’s testimony at the deposition, appellee’s counsel often, but not always, failed to qualify questions seeking the doctor’s opinion by asking whether his opinion was “within a [238]*238reasonable medical probability.”1 Appellant’s attorney typically objected to the questions that lacked the “reasonable medical probability” language, usually simply by stating the word “objection” and without stating any grounds. After one question, appellant’s counsel explained that he was “objecting to the form of the question.” In a few other instances, appellant’s counsel gave grounds for objections unrelated to this appeal. From the record, it appears appellee’s attorney asked appellant’s attorney only once for his ground for objection, for which appellant’s attorney gave a brief explanation. This also was not related to the ground for the objections at issue here.

At the beginning of the trial, appellant presented its objections to the trial judge. Appellant stated that its ground for the objections was that the questions were not in proper form because “counsel [asked] the doctor for the expert opinion without framing it as an expert opinion with the proper terminology.” The judge, based upon the Court of Special Appeals’ holding in Davis v. Goodman, 117 Md.App. 378, 700 A.2d 798 (1997), found that appellant had waived the objections and overruled all objections except for one, which is not at issue in this appeal. The videotaped deposition was played to the jury and, as noted above, it found in favor of appellee.

Appellant presents the following question for review:

Did the trial court err in overruling [appellant’s objections to deposition opinion questions, which would clearly have been improper if asked at trial, for the reason that counsel for [appellant] had not set forth his reasons for the objections during the deposition?

We hold that the trial court did not err and shall affirm.

II. Discussion

The parties in this case rely mainly on the Maryland Rules governing deposition testimony and the Court of Special [239]*239Appeals’ opinion in Davis v. Goodman, 117 Md.App. 378, 403-04, 700 A.2d 798, 810 (1997). Although application of the Maryland Rules clearly leads to the result we reach today, see infra, the common law of this State, in place long before the adoption of the rules, also supports our decision to affirm the trial court and our holding that, when objecting during a deposition to questions, answers, or any other error or irregularity that may be cured at the deposition, the objecting party must state the ground or grounds for the objection or the objection is waived.

A. Maryland Common Law

As early as 1885, this Court recognized that the ground for an objection to deposition testimony must be stated at the taking of the deposition along with the objection so “that opportunity to change the form [of the question] might be given.” Brown v. Hardcastle, 63 Md. 484, 495 (1885) (citing Kerby v. Kerby, 57 Md. 345, 361 (1882)). In Brown,, the appellees objected at trial to certain testimony filed in the case because the question posed at the pretrial proceeding was leading. The trial court overruled the objection. We affirmed because appellees failed to state the ground for their objection when the question was asked during the pretrial proceeding, stating: “All the exceptions to the testimony because of the leading character of the interrogatories[2] are overruled, because, at the time the interrogatory was propounded, the ground of objection was not stated and noted, that opportunity to change the form thereof might be given.” Id. In Kerby, the case cited and interpreted by the Brown Court, we advised that objections to the form of questions posed before a commissioner 3 must “be made at the time propounded, in order to [240]*240give a chance for correction into admissible form.” Kerby, 57 Md. at 361.4 We held:

So far as the interrogatories are alleged to be leading, and therefore exceptionable, the objection comes too late. Such objections being only as to form; are always required to be made at the time propounded, in order to give a chance for correction into admissible form. The objection should have been noted before the commissioner.

Id. (citations omitted) (emphasis added). It follows, therefore, that in depositions, in order to afford an opportunity for correction, the alleged problem must be sufficiently stated at the time the objection is made.

Over twenty-five years later, in Doggett v. Tatham, 116 Md. 147, 151, 81 A. 376, 378 (1911), we revisited the issue of objections to questions propounded during a deposition. The Court first described the issue in that case:

The fourth exception raises a question with regard to which there is no exact adjudication in this State. The evidence of Charles A. Williams was being taken in Virginia under the provisions of section 16 of article 35 of the Code of Public General Laws. The plaintiff was represented at the taking of this evidence, but the defendant was not, and on the reading of the deposition, the 15th question was objected to upon the ground that it was leading, though no such objection appears to have been made or noted at the time when the testimony was taken.

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Mayor of Baltimore v. Theiss
729 A.2d 965 (Court of Appeals of Maryland, 1999)

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Bluebook (online)
729 A.2d 965, 354 Md. 234, 1999 Md. LEXIS 252, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mayor-of-baltimore-v-theiss-md-1999.