Exclusion of Evidence: Arrow v. Cade

Kopec Law Firm

This Maryland Medical Malpractice Lawyer Blog also discusses recent Maryland cases from other personal injury areas that have issues in common with medical malpractice. In this one, we look at a premises liability case involving exclusion of evidence produced two days before trial. The Appellate Court of Maryland issued an unreported opinion in Arrow Parking Corp. v. Cade (February 1, 2024).

The Trial Court

The plaintiff fell exiting an elevator in a parking garage and brought a negligence claim based on failure to maintain the elevator safely. After she fell, she saw that there was a problem with the elevator leveling, leaving a ½ to 1-inch gap. The defendants had notice of the condition because the evidence indicated that someone else had fallen earlier that day because of the same elevator problem. (Op. at 2, 5). The jury awarded the plaintiff over $1.2 million, and the defendants appealed. (Id. at 5-6).

Exclusion of Evidence
Exclusion of Evidence

The Appellate Court: Exclusion of Evidence

The Appellate Court dealt with several issues that are in addition to the one I will focus on. First, the defendants complained that the circuit court did not give jury instructions on the condition being open and obvious and on contributory negligence and failed to put contributory negligence on the verdict sheet. (Id. at 9). The trial judge ruled that the evidence did not generate the issues. (Id. at 6). However, the defendants did not object to the instructions after the trial judge had given them. As a result, the Appellate Court ruled that the defendants had not preserved the claims for appeal. (Id. at 10-11). The Appellate Court ruled that, in any event, the trial court was correct in not giving the instructions. 

Second, the Appellate Court held that the trial court did not err in denying the defense motions in limine and for judgment. (Id. at 11-13).

Exclusion of Evidence of Email

The issue I want to focus on involved exclusion of evidence. The defense produced an email two days before the trial, but it had been in their possession for years. The email said that the plaintiff had been the first to fall that day, and one of the defendants’ employees had sent it to three people. (Id. at 3). The Appellate Court noted that the email went to the most essential issue in the case, that the defense was on notice of the dangerous condition. The delay in production was due to a lack of diligence. The defendants’ delay prejudiced the plaintiff because she could not do discovery to investigate the email at that point. However, the defense could have their witness testify to the same issue with less prejudicial means.

The Appellate Court noted that the standard of review was abuse of discretion. Perry v. Asphalt Concrete Services, Inc., 447 Md. 31 (2016) (Id. at 8-9). The Appellate Court held that the circuit court did not abuse its discretion in excluding the email. (Id. at 15).


I believe that the circuit court and the Appellate Court reached the correct decision on the exclusion of evidence. The plaintiff would have been significantly prejudiced if the trial court had allowed the email into evidence. The defense’s delay deprived the plaintiff of the opportunity to engage in discovery concerning the email. 

If the defendants had produced the email during discovery, the plaintiffs could have used discovery to explore the circumstances around the email to test its truthfulness. For example, the plaintiff could have taken the depositions of the email recipients. In doing so, the plaintiff could have explored other communications relating to the email that may have contradicted its statement.

Exclusion of Evidence: Email Contradicted Other Evidence

This contradiction is a significant possibility, given that some evidence in the case already suggested that the email was false. That evidence included the plaintiff’s testimony that when she reported her fall, the parking lot cashier stated that the manager was responding to another fall and had been there for at least 10 minutes. (Id. at 4). In addition, the other woman who fell testified that while the defendants’ supervisors were helping her, they got a call that someone else had fallen. (Id.).

The verdict may have been identical even if the trial court had admitted the email. Multiple things at trial may have caused the jury to view the defense negatively. First, the defendants’ employee, who received the report from the plaintiff of her fall, denied being at work that day. That was until the plaintiff’s played a recording of him calling the elevator company that day to report the plaintiff’s fall. (Id. at 5), Second, one of the defendants’ supervisors, who was directly involved in the circumstances of that day, never testified. (Id. at 5). 

However, the plaintiff should not have to risk the effects of the unproduced email, and the Maryland courts adequately protected her by the exclusion from evidence.

Other Cases

  • Scott v. Universal Protection Service, LLC, Appellate Court of Maryland unreported opinion (Oct. 20, 2023): Court upheld denial of motion to exclude expert’s additional opinions in de bene esse deposition to give update on plaintiff’s condition.

Mark Kopec is a top-rated medical malpractice lawyer. You can contact him at 800-604-0704 for a free consultation. The Kopec Law Firm is located in Baltimore and pursues cases throughout Maryland and Washington, D.C. Thank you for reading the Maryland Medical Malpractice Lawyer Blog.

What Our Clients Say About Us

At the Kopec Law Firm, we are grateful that satisfied clients express their appreciation!

Mark is a knowledgeable and empathetic lawyer who speaks directly and concisely to evaluate your problem. He doesn't use attorney jargon that confuses people, rather he talks clearly. Although he couldn't help me with my situation, the consultation I had was productive because he answered my questions and gave me some clarity.

Shahnaz in Ellicott City

Dear Mark, I just wanted to express my gratitude for your dedication to my case. As you know, it has been a long and upsetting process for me, which would have been a great deal longer had it not been for the hours you put in helping me with this emotional roller coaster. Thank you again.

Shannon T. in Anne Arundel County

Dear Mark, thank you so much for your help and kindness. You provided the guidance and assistance we needed to obtain some understanding in loss of our child. We will never forget the professional and personal service provided. If anyone is in need of legal representation, I will certainly send them your way. God bless.

Kim C. in Cecil County

I wanted to say thank you for spending time with me regarding my questions about legal issues. Mere words cannot really express my gratitude. You seem to truly care about people.

Client in Baltimore City

Dear Mr. Mark, I’m truly grateful to have had you work on my son’s case. You were up front at all times and were on key every step of the way. I will always recommend your firm. Thank you so much for helping my son. P.S. Every time my son sees you on TV, he says “Mom, that’s my lawyer, Mr. Mark.” 🙂 Thank you again. You did an excellent job on the...

K.N. in Baltimore City

Dear Mark, we want to thank you for all the hard work and time your firm put in our case. You took the time to listen to us and research our case. You were honest and up front regarding the case. You responded to questions and concerns quickly. We would highly recommend your firm and services to anyone who is in need of legal representation. We...

Rebecca T. in Prince George’s County

Super Awesome team and staff! Worked with them for a case they handled for my grandchild about 10yrs ago! Would definitely use them again! I recommend them to everyone I know. Could never thank them enough! Very thorough and knowledgeable! Always kept us in the loop throughout the entire process!!!!

Letha C. in Prince George’s County

Mark explained everything in detail and brought clarity to all of my concerns.

Doris in Edgwater

I am very happy and thankful for your help. You responded very quickly. I am very happy to recommend you.

Linda in Chevy Chase
  1. 1 Free Consultation
  2. 2 Talk to a Lawyer
  3. 3 No Fee Unless You Win
Fill out the contact form or call us at 800-604-0704 to schedule your consultation.

Send Us a Message