Fact Witness Evidence: Little v. Schneider 2
The Baltimore Medical Malpractice Lawyer Blog examines issues in Maryland medical malpractice cases. This post is Part 2 in a series. I look at the scope of evidence that a fact witness may comment upon. The case is by the Court of Appeals of Maryland (now known as the Supreme Court of Maryland). It is the reported opinion in Little v. Schneider, 434 Md. 150 (2013). Specifically, the issue involves a defendant doctor in a medical malpractice case testifying as a fact witness. Also, a CT scan he did not have personal knowledge of.
Medical malpractice litigation often involves complex objective data, from electronic medical records to advanced diagnostic imaging. When a catastrophic surgical complication occurs, both sides search for pieces of physical or radiological evidence that can vindicate their theory of the case. However, just because a piece of medical data exists does not mean a witness has a legal right to introduce it to a jury.
In Part 1, I explored how the defense “opened the door” to letting the jury know the defendant doctor lacked board certification. They did so by extensive credential-bolstering.
Background on Fact Witness Evidence: The Battle Over the Aorta Sizing
As detailed in my previous post, the plaintiff suffered catastrophic, life-altering injuries, including permanent paralysis from the waist down. This followed a botched aortobifemoral bypass surgery. The core dispute that went before the Harford County jury came down to a question of anatomy and millimeter measurements.
The plaintiff’s primary theory of negligence was that the surgical team committed a critical error. This was when they selected a 16×8 mm synthetic graft. She presented evidence showing that her native abdominal aorta was only 7–8 mm in diameter. This meant the large graft choice created a severe, dangerous size mismatch. That caused her blood vessels to shred and hemorrage.
The defense rejected this narrative. The doctor maintained that the patient’s aorta actually measured 14 mm in diameter, which would have made the 16×8 mm graft appropriate and anatomically sound.
The doctor, a vascular surgeon, sought to break this deadlock and prove his measurements were correct. He tried to introduce a chest CT scan of the patient. Crucially, this specific CT scan was captured during an entirely separate, unrelated hospital visit. The doctor proffered that looking at the objective calibration markers on this specific chest image can calculate the true size of the patient’s abdominal aorta.
The trial judge blocked the defense from using this imaging. Following the jury’s multi-million dollar verdict for the plaintiff in the trial, the intermediate appellate court reversed the trial judge, ruling that excluding the CT scan was a reversible error. The plaintiff then appealed the issue to the state’s highest court.
The Parties’ Arguments on Fact Witness Evidence: Relevancy vs. Personal Knowledge
The legal battle over the diagnostic scan forced both sides to clash over two foundational building blocks of evidence law: what makes a document “relevant,” and what gives a witness the legal right to talk about it?
The Defendant’s Argument: Crucial Objective Evidence
The doctor argued that because the primary battleground of the trial was the actual physical size of the patient’s aorta, a diagnostic scan capable of measuring that aorta was relevant under Maryland Rule 5-401.
The defense contended that even though the doctor was testifying exclusively as a fact witness and not an expert, he should be allowed to look at the CT scan on the witness stand, identify the aorta, and compare it to the calibration on the image. The defense warned that if physicians are banned from explaining objective factual images simply because they didn’t review them during treatment, they would be stripped of the ability to properly defend themselves against negligence claims.
The Plaintiff’s Argument: A Total Lack of Personal Knowledge
The plaintiff’s legal team countered that the scope of a fact witness’s testimony is strictly confined to what they actually saw, heard, and did during the active treatment window.
The plaintiff pointed out in the trial record: the doctor had never looked at, reviewed, or relied upon this specific chest CT scan while making medical decisions or operating on the patient. In fact, the doctor did not even know the scan existed at the time of the alleged malpractice. Therefore, the plaintiff argued, the doctor possessed no personal knowledge regarding the scan, rendering any testimony he might give about it legally inadmissible.
The Court’s Ruling on Fact Witness Evidence: Fact Witnesses are Tethered to Personal Knowledge
The Court of Appeals ultimately reversed the intermediate appellate court and ruled that the trial judge acted within his discretion when he prohibited the doctor from testifying about the diagnostic scan.
The court first clarified that the plaintiff’s definition of “relevancy” was a bit too narrow. Under Maryland Rule 5-401, any evidence that has a tendency to make a fact of consequence more or less probable is relevant. The actual size of the patient’s aorta was the central issue of the lawsuit. Thus, the scan itself could technically be deemed relevant if properly introduced.
However, the court noted that establishing relevancy is merely the first step of the evidentiary hurdle. A party must still have a legally qualified witness on the stand to identify, interpret, and explain that relevant evidence to a jury.
The court emphasized the strict boundaries governing fact witnesses in professional malpractice actions:
Witness Testimony Criteria
| Fact Witness (e.g., Defendant Doctor) | Expert Witness |
|---|---|
| Threshold Standard: Must have personal knowledge of the matter. | Threshold Standard: Formulates opinions based on data compiled for litigation. |
| Testimonial Scope: Limited to a recitation of what they observed and did during treatment. | Testimonial Scope: Allowed to interpret records, outside scans, and hypothetical scenarios. |
The court reviewed the record. It found that none of the defense’s designated expert witnesses had reviewed or relied upon this chest scan to form their trial opinions. That left only the defendant doctor to introduce it.
It was undisputed that the doctor had never used, reviewed, or even known about this chest scan while treating the patient. Thus, he fundamentally lacked the personal knowledge required of a fact witness under Maryland law.
Conclusion
Then the court concluded:
“Clearly, then, it was within the trial judge’s discretion to prohibit [the doctor] from testifying about this CAT scan because such testimony would have gone outside the realm of [the doctor’s] personal knowledge regarding what he did and what he observed in the treatment of [the patient]”.
Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Fact Witness Evidence
The Court of Appeals struck the correct balance in this opinion on fact witness evidence. There was an aspect of relevancy to the CT scan. That is, if it showed the size of the aorta at a relevant time. However, the court appropriately ruled that a fact witness who had no personal knowledge of the scan could not testify about it. A party can use a properly designated and disclosed expert witness to testify about the scan if it is part of their opinions.
It is not clear why the defense did not have their experts use the CT scan. The court’s opinion states that none of the defense experts reviewed the CT scan. Nor did they rely on it in forming their opinions. So it does not sound like it was not used in discovery. But the question is why. The answer is not apparent from the opinion. It is not clear when the defense discovered the CT scan. That timing may have played into their ability to use it.
This decision stands as a reminder to trial practitioners. A fact witness must remain exactly that—a witness to the actual facts they personally experienced.
You can read additional Blog posts on cases involving evidence issues.
Thank you for reading our two-part series on this Maryland case. You or a loved one may have suffered life-altering injuries due to a surgical error, surgical mismatch, or medical malpractice in a hospital. Reach out to us today for an assertive, highly experienced analysis of your case.
Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.