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«JOEL FALIK, et al. v. JAMES HORNAGE, et al. No. 90 September Term, 2009 JOEL FALIK, et al. v. CLINT HOLTHUS, et ux. Bell, C.J. Harrell Battaglia ...»

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Falik v. Hornage, No. 60, September Term, 2009; Falik v. Holthus, No. 90, September Term







Circuit Court for Anne Arundel County Case No. C-07-125585 OF MARYLAND Circuit Court for Montgomery County Case No. 291296 No. 60 September Term, 2009 JOEL FALIK, et al.



No. 90 September Term, 2009 JOEL FALIK, et al.



Bell, C.J.

Harrell Battaglia Murphy Greene Adkins Barbera, JJ.

Opinion by Harrell, J.

Filed: April 5, 2010 The two cases in this consolidated appeal arise from unrelated automobile negligence actions presenting a common procedural background birthing significant discovery disputes.

In each case, the respective defendants designated, in pre-trial discovery, Dr. Joel Falik, M.D.

(“Dr. Falik” or “Appellant”), a neurosurgeon, as a non-treating medical expert witness. The plaintiffs in each case each noted two-fold depositions of Dr. Falik: a “records deposition duces tecum” to be followed at a later date by a testimonial deposition. The notices of records deposition duces tecum requested the physician to produce certain documents regarding his past services as a medical forensic expert witness. Dr. Falik filed motions for protective orders. The trial courts in each case issued orders directing Dr. Falik to produce at least some of the records sought. Dr. Falik sought immediate appellate review in both cases.

Falik v. Hornage On 4 February 2008, James Hornage and Lora Ard Hornage(collectively, “Hornage”) filed an amended complaint in the Circuit Court for Anne Arundel County alleging that they and their minor son were injured in an automobile accident caused by Heather Britt’s alleged negligence.1 The defense designated Dr. Falik to conduct an independent medical examination of Ms. Hornage. Hornage thereafter issued a notice of a “records deposition duces tecum.” The notice sought information regarding the physician’s prior provision of forensic services. Dr. Falik filed a motion for a protective order in which he objected to several of the plaintiffs’ requests. Specifically, he objected to the requests for the following The first complaint was filed solely against Britt. The amended complaint included as a defendant USAA Casualty Insurance, the plaintiffs’ insurance carrier.


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The Circuit Court held a hearing on the motion, ultimately granting the motion in part and denying it in part. Memorializing its decision, the trial court issued the following order

on 28 August 2008:

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The order provided also that the “discovered material may only be used by counsel in this matter or in other legally related circumstances.” In a footnote, the trial court noted that, although Dr. Falik did not supply the court with “specific details of the requested

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of the discovered material should not be vulnerable to wide-spread public dissemination.” On 29 September 2008, before the initial deposition could be taken, Dr. Falik filed a notice of appeal to the Court of Special Appeals.2 In his brief filed 20 May 2009, Dr. Falik complained that the trial court erred as a matter of law and abused its discretion when it ordered him to produce the financial records it ordered. This Court, on its own motion, issued a writ of certiorari on 17 June 2009, prior to decision of the appeal by the intermediate appellate court. 409 Md. 46, 972 A.2d 861 (2009).

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On 18 January 2008, Clint and Julia R. Collins-Holthus (collectively, “Holthus”) filed in the Circuit Court for Montgomery County a complaint against Gilberto Martinez alleging that they were injured in an automobile accident that occurred allegedly as a result of Martinez’s negligence. Martinez designated Dr. Falik, the same expert that the defendant in Hornage designated, as a non-treating medical expert witness. Holthus filed a “notice of records deposition duces tecum,” to be followed by a testimonial deposition, seeking information relating to Dr. Falik’s prior services as a forensic expert witness. Dr. Falik filed On 1 November 2008, Britt withdrew before trial Dr. Falik as an expert witness in the underlying Circuit Court case. It appears that Dr. Falik did not inform clearly the Court of Special Appeals that the defense withdrew him as an expert witness. He, however, did include in the Record Extract in the Court of Special Appeals the lines filed in the Circuit Court by Britt and United Services Automobile Association (Britt’s insurance carrier) and the docket entries related to his withdrawal as a potential defense witness.

Hornage, in his brief, filed with this Court on 20 July 2009 (after the issuance of our writ of certiorari), informed us that the defense had withdrawn Dr. Falik as an expert witness.

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At the hearing before the trial court, Holthus’s counsel indicated that this request contained a typographical error. He stated that the request should have asked for any documents showing the amounts paid to Dr. Falik for independent medical examinations in the years 2008 and 2007.

At the hearing before the trial court, counsel for Dr. Falik indicated that Holthus had withdrawn request #17 and, as such, it was no longer in contention. The parties also indicated at the hearing that they had reached an agreement as to requests #19 and #20.

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Holthus filed an opposition to the motion, but indicated that they would consent to a confidentiality order for the protection of Dr. Falik’s privacy. The trial court held a hearing on 28 April 2009 and thereafter issued an order in which it granted in part and denied in part the physician’s motion. The order directed Dr. Falik to produce the items listed in requests #10 and #18, but limited the requests to the years 2007 and 2008. The court denied the motion with respect to requests #13 and #17.5 The order also contained the following

limitations that addressed Dr. Falik’s privacy concerns:

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It is unclear from the record why the court denied the motion with respect to #17 when counsel for Dr. Falik stated at the hearing that Holthus had withdrawn this request.

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Dr. Falik and Martinez, apparently aggrieved by the trial court’s only qualified favor found in the motion for protective order, filed timely separate notices of immediate appeal to the Court of Special Appeals. They complained in their briefs that the trial court erred as a matter of law and abused its discretion when it ordered Dr. Falik to produce the limited financial records it did. While that case was pending in the intermediate appellate court, but before arguments could be held, Dr. Falik filed in this Court a petition for a writ of certiorari,6 pointing out the common issue assumedly presented in Hornage, for which we had issued already a writ of certiorari. We granted the petition, 410 Md. 559, 979 A.2d 707 (2009), and consolidated Holthus with Hornage.

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At the outset, we address Holthus’s contention that Martinez, the defendant in Holthus, may not be an appellant in this matter. Holthus argues that the trial court’s order was not a final judgment with regard to Martinez as a defendant and, because it does not fall within any exceptions to the final judgment rule, Martinez must wait for a final judgment before he may appeal the order. Generally, “‘a party may appeal only from a final judgment.’” St. Joseph Med. Ctr., Inc. v. Cardiac Surgery Assocs., 392 Md. 75, 84, 896 A.2d 304, 309 (2006) (quoting Nnoli v. Nnoli, 389 Md. 315, 323, 884 A.2d 1215, 1219 (2005)).

See also Md. Code, Cts. & Jud. Proc. § 12-301 (1974 & 2006 Repl. Vol.) (“[A] party may appeal from a final judgment entered in a civil or criminal case by the circuit court.”). There are, however, three well-identified, but infrequently sanctioned, limited exceptions to the final judgment rule which permit appellate review before a final judgment has been rendered.

St. Joseph, 392 Md. at 84, 896 A.2d at 309. The exceptions are: “‘appeals from interlocutory orders specifically allowed by statute; immediate appeals permitted under Maryland Rule 2and appeals from interlocutory orders allowed under the common law collateral order

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881 A.2d 660, 666 (2005)). Martinez does not contend that his appeal fits within any of the exceptions to the final judgment rule. Rather, he argues that Dr. Falik is the real party in interest in this case and, thus, the issue is not whether Martinez has the right to maintain his own appeal pursuant to the final judgment rule or its exceptions, but, whether Martinez has the right to join in the appeal maintained by Dr. Falik by virtue of Martinez’s abundant interest in the outcome of the appeal.

In St. Joseph, a non-party to the underlying suit filed an interlocutory appeal from the trial court’s refusal to grant a protective order from discovery in favor of the non-party. We held that the order was appealable, not under any of the exceptions to the final judgment rule, but because the order was a final judgment as to the non-party. 392 Md. at 88-89, 896 A.2d at 312. We reasoned that because the third person was not a party to the case, it would not have standing “to challenge the discovery order by appealing from a final judgment in that

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that appellant.” Id. at 90, 896 A.2d at 313. Therefore, it is pellucid that, all other things being equal, Dr. Falik possessed a right to appeal from the orders entered in the present cases.

That conclusion does not mean, however, that Martinez has a right to appeal the order under his theory that he may “tag along” in Dr. Falik’s appeal. There is no statutory authority permitting an interlocutory appeal of a discovery order of this nature, nor is this appeal permitted under Rule 2-602. Thus, the only circumstance that would permit Martinez’s appeal at this time is the collateral order doctrine. The collateral order doctrine

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St. Joseph, 392 Md. at 86, 896 A.2d at 310 (quoting Nnoli, 389 Md. at 329, 884 A.2d at 1223) (internal citations and quotation marks omitted)). In the instant case, Martinez and Dr.

Falik are challenging an interlocutory discovery order. It is well established in Maryland that generally “interlocutory discovery orders do not meet the requirements of the collateral order doctrine and are not appealable under that doctrine.” Id. at 87, 896 A.2d at 311.

Interlocutory discovery orders are not appealable because most

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Id. (citing In re Foley, 373 Md. 627, 635, 820 A.2d 587, 592 (2003) (internal citations and quotation marks omitted)). The “singular circumstance” in which an interlocutory discovery order is reviewable on appeal under the collateral order doctrine “involves trial court orders permitting the depositions of high level governmental decision makers for the purpose of ‘extensively probing... their individual decisional thought processes.’” Id. at 88, 896 A.2d at 311 (quoting Montgomery County v. Stevens, 337 Md. 471, 479, 654 A.2d 877, 881 (1995)). The order in Holthus clearly does not fall within that category. Thus, we dismiss Martinez’s appeal.8 II. Discovery of a Non-Treating Medical Expert’s Financial Records Obviously, a party has a strong interest in the fact-finder’s assessment of the credibility of its expert witnesses. For the opposing party it is equally important to have the ability to search for legitimate evidence to impeach the credibility of those witnesses. Bias is one method of impeachment and “[i]t is well established that the bias, hostility or motives of a witness are relevant and proper subjects for impeachment.” Pantazes v. State, 376 Md.

661, 692, 831 A.2d 432, 450 (2003). See also Md. Rule 5-616(a)(4) (“The credibility of a Holthus argues also that Martinez failed to preserve for appellate review his objection to his trial court’s order. Because we conclude that Martinez has no right to appeal, we shall not reach the issue.

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directed at... [p]roving that the witness is biased, prejudiced, interested in the outcome of the proceeding, or has a motive to testify falsely.”). “Bias describes ‘the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party.’” Pantazes, 376 Md. at 692, 831 A.2d at 450 (quoting United States v. Abel, 469 U.S. 45, 52, 105 S.Ct. 465, 469, 83 L. Ed. 2d 450, 457 (1984)). It is well established that the fact that an expert witness is being paid to testify may bear on his or her credibility and may be revealed through cross-examination. Goldberg v. Boone, 396 Md. 94, 116, 912 A.2d 698, 711-12 (2006); Wrobleski v. de Lara, 353 Md.

509, 518, 727 A.2d 930, 934 (1999); Mezzanote Constr. Co. v. Gibons, 219 Md. 178, 181, 148 A.2d 399, 401-02 (1959). Thus, “an expert witness may be questioned on crossexamination about compensation received for testifying, as well as about the expert’s history of employment as an expert witness, in order to reveal bias or interest in the outcome of the proceeding.” Goldberg, 396 Md. at 116, 912 A.2d at 710-11.

“Expert opinion testimony can be powerful evidence.” Wrobleski, 353 Md. at 517, 727 A.2d at 933. An expert’s testimony “can have a compelling effect [on] a jury.” Id.

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