ADKINS, J.
Professional malpractice cases are unique in that the defendants are often highly trained and experienced professionals who possess credentials and specialized knowledge similar to that of an expert witness. In a medical malpractice case, like this one, there is a legal distinction between a defendant physician who testifies
In May of 2007, Victoria Little, Petitioner, sought treatment at Vascular Surgery Associates. She complained of pain in her thighs and buttocks, which, it turned out, stemmed from a blocked aorta. Little was scheduled for a aortobifemoral bypass surgery to be performed by Respondent Dr. Schneider and Dr. Gonze on July 16, 2007. The goal of the surgery was to remove the buildup of plaque in the aorta and thereby restore appropriate blood flow to the pelvis and lower extremities. The surgery is performed by cutting the abdominal aorta below the renal arteries and then using a graft to connect the aorta to the femoral artery. The surgeon determines the proper size of the graft by visually inspecting the aorta during surgery.
During surgery, Drs. Schneider and Gonze chose to use a 16 x 8 mm graft. The suture used to connect the tissue to the graft, however, would not hold, causing Little to lose a large amount of blood. The doctors tried to complete the surgery several times, but the sutures continued to open up, making Little lose more blood with each attempt. Unable to complete the aortobifemoral bypass, Drs. Schneider and Gonze converted the surgery into an axillobifemoral bypass.
In this procedure, the bypass is performed at the axillary artery, which is then reconnected with the use of a graft to the femoral artery. The surgeons were able to complete the axillobifemoral bypass with the use of an 8 mm graft. But, by then, Little had lost 5100 ccs of blood — almost her entire volume of blood. As a result, there were severe surgical complications: Little became permanently paralyzed from the waist down and suffered temporary damage to her kidneys, liver, heart, lungs, and spinal cord.
At trial, Ms. Little's primary theory of negligence was based on an alleged mismatch in the size of her aorta and the size of the graft used in the initial attempt at completing the aortobifemoral bypass. Little contended that her aorta was 7-8 mm, and thus, the 16 x 8 mm graft was much too large. Dr. Schneider maintained that Little's aorta was 14 mm, and thus, the 16 x 8 mm graft was proper. The jury agreed with Little, finding that Drs. Schneider and Gonze had negligently performed the surgery and awarded Little $224,398 for past medical expenses, $2,000,000 for future medical expenses, and $1,333,000 for pain and suffering.
Ms. Little argues that the trial court was correct in allowing her, on re-direct examination, to inquire into Dr. Schneider's lack of board certification in vascular surgery.
In Dorsey, we were presented with the question of whether a plaintiff may introduce into evidence the fact that the defendant physician had failed his board certification examination on his first attempt. Id. at 249-51, 765 A.2d at 83-84. We held that such information was not admissible, explaining, "the general rule is that a physician's inability to pass a medical board certification exam has little, if any, relevance" in a medical malpractice suit. Id. at 250, 765 A.2d at 84 (citations and quotation marks omitted). That is so because "the fact of failure makes it neither more nor less probable that the physician complied with or departed from the applicable standard of care in the diagnosis or treatment of a particular patient for a particular condition." Id. at 250-51, 765 A.2d at 84.
Little reads Dorsey, however, to say that it is only the physician's failure to pass the exam that is inadmissible, not the physician's current status of certification. In support of this distinction, Little explains that in Dorsey the jury was informed of the fact that the physician was "not yet board-certified" at the time of the alleged malpractice. Id. at 250, 765 A.2d at 83. Because the jury in Dorsey was
Schneider has a different take on Dorsey, using it to argue that his decision not to take the board certification examination is not relevant. Just like Dorsey's failure of the certification exam, Schneider avers, his choice not to take the exam makes it no more or less probable that he breached the standard of care in performing Little's surgery. The trial judge, he argues, had no discretion to admit this irrelevant evidence.
Schneider's reading of Dorsey is correct. That Dr. Schneider was not board certified makes it no more or less probable that he breached the standard of care in his treatment of Little. Yet, the doctor's argument based on Dorsey does not respond to what may be Little's best theory: that Schneider put his qualifications at issue. In other words, he "opened the door" to Little's use of the lack of board certification evidence.
The doctrine of "opening the door" to otherwise inadmissible evidence is based on principles of fairness. As we have stated: "`opening the door' is simply a way of saying: `My opponent has injected an issue into the case, and I ought to be able to introduce evidence on that issue.'" Clark v. State, 332 Md. 77, 85, 629 A.2d 1239, 1243 (1993). It is a method by which we allow parties to "meet fire with fire," as they introduce otherwise inadmissible evidence in response to evidence put forth by the opposing side. See Terry v. State, 332 Md. 329, 337, 631 A.2d 424, 428 (1993). In this regard, the "doctrine is really a rule of expanded relevancy." Clark, 332 Md. at 84, 629 A.2d at 1242. It "authorizes admitting evidence which otherwise would have been irrelevant in order to respond to ... admissible evidence which generates an issue."
Dr. Schneider's lack of board certification in vascular surgery was brought up several times in the course of this litigation. It was first raised pre-trial by Schneider himself in a motion in limine seeking to prevent Little from introducing the evidence at trial. During the motions hearing, Little's counsel argued that, as a matter of fairness, he should be permitted to use Schneider's lack of board certification to counter the picture — which he anticipated would be painted by the defense — that Dr. Schneider is the "greatest" vascular surgeon in the region. The trial judge ruled for Dr. Schneider but warned the parties that the order was "subject to the proviso that upon request during the course of the trial, said ruling is subject to reconsideration by this Court."
Apparently, the defense viewed the judge's favorable ruling as giving them a green light for introducing Dr. Schneider's experience and achievements, because counsel touted Dr. Schneider's credentials and qualifications during opening statements. Specifically, he stated that Schneider had gone to undergraduate school at Hamilton College and medical school at Case Western Reserve University. He emphasized that Dr. Schneider completed a five-year residency in surgery at John Hopkins, voluntarily elected to perform an additional year-long fellowship at Hopkins specializing in vascular surgery, and was hired by Hopkins to teach vascular surgery for the next eleven years. Defense counsel also stated that Dr. Schneider was instrumental in bringing a
The issue of board certification came up again when Little called Dr. Schneider as an adverse witness. She asked the trial court to revisit its ruling on the motion in limine. At that time, the trial judge refused to overturn his previous ruling, but cautioned defense counsel that unnecessary bolstering of Schneider, like that in the opening statement, could cause him to change his decision.
Defense counsel did not heed this warning. In his cross-examination of Dr. Schneider, he wasted no time: he went over all of Dr. Schneider's accomplishments, credentials, and qualifications. This time, defense counsel went into even more detail then he did in opening statements, prompting Dr. Schneider to testify that:
During this testimony, Little objected twice, on relevancy grounds, but the trial judge permitted Dr. Schneider to continue. Upon the completion of defense counsel's cross-examination of Schneider, Little once again asked the trial judge to revisit his original ruling on the motion in limine. Little argued that the doctor could not have it both ways: his accomplishments and great deeds were no more relevant than his lack of board certification. This time, the trial judge agreed, reversing his ruling and allowing Little to inquire, on redirect, about Dr. Schneider's lack of board certification:
The trial transcript reveals that the judge was in tune with the progression of the trial and properly understood that the tables turned once Dr. Schneider engaged in extensive recitation of his many accomplishments on cross-examination. We have held that the doctrine of "opening the door" applies equally in opening statements, witness examination, and closing arguments. See, e.g., Terry, 332 Md. at 329, 631 A.2d at 424 (opening statement); Oken v. State, 327 Md. 628, 612 A.2d 258 (1992) (cross examination); Mitchell v. State, 408 Md. 368, 969 A.2d 989 (2009) (closing argument). Here, the "puffing" evidence was introduced during a phase of testimony known as "witness accreditation." We see no reason why the doctrine should apply any differently in this context.
Witness accreditation is an aspect of the witness examination process that has received scant attention in appellate opinions or legal treatises. It is a process by which a lawyer (usually the witness's counsel) elicits preliminary background information from the witness to "enhance a witness' credibility because the information portrays the witness as a real human being, not just an impersonal source of evidence." Paul Bergman, Trial Advocacy In A Nutshell 173 (2013). In other words, "the purpose of the accreditation process is largely ... to do whatever possible to make the jury receptive to the witness and his testimony before eliciting the key aspects of that testimony." Steven P. Grossman, Trying the Case 47 (1999). As we have explained:
City of Baltimore v. Zell, 279 Md. 23, 28, 367 A.2d 14, 17 (1977).
The legitimate process of accrediting a witness is not without limits, however. In Zell, we acknowledged that accreditation questions "serve the useful function of informing the jury about the witness," but the "extent to which such questions are permitted must ... remain in the sound discretion of the trial judge." 279 Md. at 28, 367 A.2d at 17; see also White v. State, 125 Md.App. 684, 695, 726 A.2d 858, 863 (1999). Thus, the key to deciding whether Dr. Schneider "opened the door" through his testimony during the accreditation is to examine the "reasonable limits" imposed by the trial judge on the accreditation process. In doing so, we are mindful that Schneider was not an expert; he was a fact witness testifying as an adverse witness in the plaintiff's case-in-chief.
With regard to fact witnesses, "[p]ersonal background questioning is usually quite short." Bergman, supra at 173. Ordinarily, it is not as extensive as that of an expert, because a fact witness will not give any opinions in the case. Therefore, the jury does not need to receive the same amount of detail as to his qualifications or credentials in order to decide whether he is credible. Thus, a judge is more likely to restrict the "reasonable limits" of accreditation of a fact witness.
Reviewing the transcript, we see that the trial judge, in establishing the "reasonable limits," was willing to give defense counsel some leeway in accrediting Dr. Schneider. The judge originally granted Schneider's motion in limine, and, even after defense counsel's discussion during opening statement, refused to reverse his decision. But, at the same time, the trial judge made clear that, if defense counsel went too far in the accreditation of Dr. Schneider, he might allow Little to counter with Schneider's lack of board certification.
This is what ultimately happened. As defense counsel attempted to paint a picture of Dr. Schneider as a model of excellence in the field of vascular surgery and a great humanitarian, the trial judge became persuaded that he exceeded the basic background information appropriate for accreditation of a fact witness. Zell, 279 Md. at 28, 367 A.2d at 14. While such an accreditation might be appropriate for an expert, Dr. Schneider was testifying solely as a fact witness. Thus, it was reasonable for the trial court to conclude that, by going outside the reasonable limits of accreditation, Schneider placed at issue the question of his excellence in the field of vascular surgery and "opened the door" to rebuttal inquiry on re-direct examination. The trial judge did not abuse his discretion in allowing Little to ask Dr. Schneider, on re-direct, about his lack of board certification in order to counter Schneider's effort to cloak himself as the paragon of vascular surgeons.
This is not to say that Little could have a free-for-all with Dr. Schneider's lack of board certification. The doctrine of "opening the door" has limitations. Clark, 332 Md. at 87, 629 A.2d at 1244. It allows for the introduction of otherwise inadmissible evidence, but only to "the extent necessary to remove any unfair prejudice that might have ensued from the original evidence." Savoy v. State, 64 Md.App. 241, 254, 494 A.2d 957, 963 (1985). In this regard, Dr. Schneider argues that the trial court abused its discretion in allowing Little to improperly use the lack of board certification as evidence of negligence. Specifically, Dr. Schneider draws our attention to Little's use of the board certification evidence on re-direct examination and in closing argument. We review both for abuse of discretion.
On re-direct examination, Little's counsel had an opportunity to question Dr. Schneider about his lack of board certification:
As this colloquy demonstrates, Little's counsel's questions focused on Dr. Schneider's professional status, namely the board certification and whether Dr. Schneider viewed it as important. Once this was established, Little's counsel promptly moved on. This is in keeping with an appropriate witness accreditation — briefly eliciting preliminarily background information about a witness's educational or professional background and then moving on to the substantive testimony. In other words, in this instance, Little used the lack of board certification only to the extent necessary to counter the potentially unfair prejudice created by defense counsel had the overblown accreditation of Dr. Schneider gone unaddressed. We find no abuse of discretion on the part of the trial judge in allowing Little's questions on redirect examination.
Little's counsel, however, did not stop there. He returned to Dr. Schneider's lack of board certification in closing argument. This time, he used it to call into question Dr. Schneider's general credibility, implying that he had lied to the jury:
We read this closing as an attempt to use the lack of board certification evidence to challenge the truthfulness of Dr. Schneider's entire testimony. If Dr. Schneider had objected, and the trial court had sustained his objection, we might well agree that Little's counsel had gone too far at this point.
Schneider also complains that the trial judge improperly excluded a chest CAT scan, which allegedly could be used to determine the actual size of Little's abdominal aorta. Schneider argues that Little's central theory of negligence was the "mismatch between the size of the aorta
Little responds that the CAT scan was not relevant because it was from an unrelated medical procedure which played no part in Dr. Schneider's treatment of Little. In Ms. Little's opinion, the scope of relevant evidence is confined to that which Dr. Schneider actually used in treating Little. And, because Dr. Schneider had never previously used this CAT scan, it was irrelevant.
On this point, we agree with Dr. Schneider. Little draws too narrow of a definition of relevancy. Maryland Rule 5-401 defines relevant evidence broadly as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." It is clear from the record, that the size of Little's aorta was the central fact of consequence in this case. Thus, if the CAT scan could aid in determining the size of Little's aorta, it may be relevant under Rule 5-401.
Determining relevancy, however, is only the first step. Dr. Schneider still had to have a witness who could identify and interpret the CAT scan. In this regard, the trial judge found that none of Schneider's experts reviewed or relied on this CAT scan in forming their opinions, and he excluded their testimony on this point. Neither party challenges this ruling.
In excluding the proffered exhibit, the trial judge also inquired into Dr. Schneider's use of the CAT scan. Little's counsel explained to the trial judge that Schneider had never used this CAT scan in his treatment of Little,
Defense counsel relied upon this generic reference to show Dr. Schneider's use of the CAT scan. Yet, as the trial judge
Nevertheless, Dr. Schneider argues that, because he was a fact witness, he should have been permitted to testify about the CAT regardless of whether he used it in his treatment of Little. This is because, in Schneider's opinion, the "CAT scan was an objective, factual image" upon which he "would merely have had to identify the aorta ... and compare it to the calibration on the image." In this regard, Dr. Schneider argues that "[i]n medical malpractice trials, defendants regularly testify about their training, qualifications, and experiences and a variety of medical and surgical subjects without being designated as experts." He fears that "[i]f they were not allowed to do so, they could not defend themselves." To illustrate this point, Dr. Schneider analogizes the CAT scan to other parts of his testimony in which, for example, he was permitted to use a demonstrative aid in explaining the axillary by-pass procedure he performed, and the identification of several vessels on that demonstrative aid.
As we said before, Dr. Schneider acknowledges that he was only a fact witness, not an expert. It is well established that fact witnesses must have personal knowledge of the matters to which they testify. See Walker v. State, 373 Md. 360, 388 n. 8, 818 A.2d 1078, 1094 n. 8 (2003) ("[T]he threshold standards for calling any fact witness are merely that the witness have personal knowledge of the matter attested to and that the matter be relevant to the case at hand."). As we explained in Dorsey — a medical malpractice action — when a defendant physician testifies as a fact witness, the physician's testimony must be "limited to a recitation of what he observed and what he did on the occasion of [the patient's] visit." 362 Md. at 251, 765 A.2d at 84.
In this regard, the trial judge clearly found that Dr. Schneider lacked the necessary personal knowledge. The trial judge specifically inquired into Schneider's use of the CAT scan and found that Dr. Schneider never reviewed the CAT scan, never considered the CAT scan, and never relied upon the CAT scan. Indeed, the trial judge could find no indication at all that Schneider even knew that the CAT scan existed when he was treating Little. Clearly, then, it was within the trial judge's discretion to prohibit Dr. Schneider from testifying about this CAT scan because such testimony would have gone outside the realm of Schneider's personal knowledge regarding what he did and what he observed in the treatment of Little.
When a defendant physician testifies as a fact witness, the defense must limit the witness accreditation and substantive testimony to that of a fact witness. In this case, Dr. Schneider's witness accreditation exceeded the reasonable limits for accreditation of a fact witness because it inquired extensively into his professional accomplishments. His attempt to testify regarding the CAT scan likewise would have gone beyond the legitimate testimony of a fact witness because Schneider had no personal knowledge of the scan. Therefore, the trial judge did not abuse his discretion
