Virgil Edwards v. Jason Labbe, II

Annapolis, Maryland personal injury lawyer represented the Plaintiff who sued the defendant on an auto negligence theroy.

On November 19, 2018, Edwards was driving a vehicle when another car, driven by Labbe, hit him from behind. In his complaint, Edwards alleged that as a direct and proximate result of Labbe's negligence, he "suffered serious, painful, and permanent bodily injuries, great physical pain and mental anguish, severe and substantial emotional

distress [and] loss of capacity for the enjoyment of life." Labbe conceded liability but contested Edwards's damages claim.



Edwards designated two of his treating physicians as expert witnesses: Dr. Susan Liu, an orthopedic surgeon, and Dr. Varada Nargund, an anesthesiologist and pain specialist. According to Edwards's expert designation, Dr. Liu was expected to testify that she examined him due to his neck and back complaints. She ordered and reviewed an MRI of his neck, which showed multilevel degenerative changes. Dr. Liu was also expected to testify that the treatment rendered was causally related to the accident and was medically necessary.



Dr. Nargund was expected to testify that he examined Edwards for chronic cervical pain. During the examination, Edwards reported experiencing aching and stabbing, as well as sharp and shooting pain in his cervical area. Dr. Nargund recommended physical therapy, medication therapy, and a series of injections. He was also expected to testify that the treatment rendered was causally related to the accident and was medically necessary.



In preparation for the jury trial scheduled for October 12, 2023, Edwards noted and took the videotaped de bene esse depositions of these physicians in accordance with Maryland Rule 2-419(a)(4).[3] Dr. Nargund's deposition occurred on October 3, and Dr. Liu was deposed on October 6.



During the jury trial on October 12, the parties began by addressing two preliminary issues before starting jury selection.[4] After the court posed the voir dire questions to the venire, but before individual questioning of the venirepersons, the court took a lunch recess.



When the court reconvened, it inquired whether the parties were prepared to continue with jury selection. Edwards's attorney ("plaintiff's counsel") informed the court of yet "another issue" that had "come up." Plaintiff's counsel had learned Labbe's attorney ("defense counsel") took issue with the videotaped de bene esse depositions but did not understand the issue being raised by defense counsel: "I've been advised that there's an objection to the videotapes of the experts because they weren't offered as experts. I don't know what that means, but that's what [defense counsel] is reporting to me."



Defense counsel clarified that the objection was based on the fact that plaintiff's counsel did not offer the physicians as experts during the depositions: "[N]ot a single time were [the physicians] ever offered as an expert in any field of any kind during the [deposition] transcript." Although plaintiff's counsel had conducted voir dire of the physicians during the depositions, defense counsel pointed out that he did not have the

same opportunity because the physicians were never offered as experts during the depositions.



The court stated, "[T]here are some procedural things we have to do when we offer an expert['s] testimony, right? We have to say, I'm offering this witness as an expert in the field of blank." The court indicated that if a treating physician were to testify in court and be offered as an expert, a judge would ask opposing counsel if they had any objections to the physician being admitted as an expert or if they wished to conduct voir dire of the physician before the court decided to accept the physician as an expert. The court explained, "[I]f those procedural steps are not taken, that leaves us, for the lack of a better term, in short pants."



Plaintiff's counsel acknowledged that the proper procedures were not followed during the depositions, stating, "We can't try the case ...." Consequently, the court inquired whether Edwards intended to dismiss his complaint. Plaintiff's counsel replied that he had to consult with his co-counsel, who was not present in court but could be reached by phone.



Defense counsel moved to dismiss the case, arguing that without an expert, "[Edwards] can't possibly meet all the criteria to bring the case to a jury, and I think we'd just be wasting everyone's time." Plaintiff's counsel opposed this motion, explaining that the witnesses who had been deposed were treating physicians and could testify as such. Defense counsel countered that these witnesses would not be able to provide any medical opinions and could only serve as fact witnesses:



They cannot offer opinion, medical opinions. They're -- at that point, they're fact witnesses. Fact witnesses cannot offer a medical opinion as to whether the treatment is related to the accident. The fact witnesses cannot offer any testimony regarding any other treatment that they weren't privy to, which they both did, so they can't possibly, they can't possibly now be seen as a fact witness. Even so, you still need an expert to relate the treatment to the occurrence. And without the -- without an injury related to the accident there is no claim.



The court expressed similar concerns, noting that "[t]he problem would be that it's a fact witness that's masquerading as an expert or an expert masquerading as a fact witness."



After allowing plaintiff's counsel to consult with his co-counsel, counsel advised that Edwards was not withdrawing his complaint. The court then inquired whether defense counsel wished to make "a motion for judgment at this time," to which he responded affirmatively. The court then granted the "[m]otion for judgment."



On October 16, 2023, the court entered an order, stating, in relevant part: "Defendant moved to exclude video depositions because the witnesses were not designated as experts-GRANTED. Defendant moved for [j]udgment-GRANTED. Case is Dismissed."



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Legal issue Did the trial court err in granting an oral motion for judgment before the presentation of evidence, due to procedural issues with expert testimony designation?

Key Phrases Motor vehicle accident. Negligence claims. Expert witness testimony. Videotaped depositions. Motion for summary judgment.

Judgment vacated and case remanded.