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Pepsi Bottling Group v. Plummer

Court of Special Appeals of Maryland

January 28, 2016

PEPSI BOTTLING GROUP, et al.
v.
DEREK L. PLUMMER

Page 1048

         Appeal from the Circuit Court for Prince George's County, Michael R. Pearson, JUDGE.

         ARGUED BY: Robert C. Erlandson & Fatima H. Garland (Godwin, Erlandson,Vernon & Daney, LLC on the brief) all of Ellicott City, MD, FOR APPELLANT.

         ARGUED BY: Joseph M. Yahr (Benjamin T. Boscolo, Chasen Boscolo Injury Lawyers on the brief) all of Greenbelt, MD, FOR APPELLEE.

          Meredith, Leahy, Reed, JJ.

          OPINION

Page 1049

         [226 Md.App. 463] Meredith, J.

         Following a jury trial in the Circuit Court for Prince George's County in a workers' compensation case, judgment was entered in favor of the claimant, Derek L. Plummer, appellee. Pepsi Bottling Group and its workers' compensation insurer Indemnity Insurance Company of North America (collectively referred to as " appellants" ) filed this appeal. Most of the appellants' arguments relate to the trial court's interpretation of the statutory privilege that bars evidence of the proceedings, records, files and orders of the Maryland State Board of Physicians (the " Board" ), codified in Maryland Code (1981, 2014 Repl. Vol.), Health Occupations Article (" HO" ), § 14-410. Appellants contend that the trial court erred in failing to grant their motion to strike the de bene esse video deposition of appellee's expert witness, Dr. Michael Franchetti; that the trial court erred in granting the appellee's motion in limine with regard to certain portions of Dr. Franchetti's testimony; that the trial court erred in failing to give a non-pattern jury instruction requested by appellants; and that the trial court erred in failing to grant appellants' motion for new trial.

         QUESTIONS PRESENTED

         Appellants presents four questions for our review:

I. Whether the Circuit Court erred in its denial of the Appellant[s'] Motion to Strike the De Bene Esse Video Deposition of Appellee's Expert Witness or, in the alternative, to Compel discovery responses[.]
[226 Md.App. 464] II. Whether the Circuit Court erred in its granting of the Appellee's Motion in Limine.
III. Whether the Circuit Court erred in its denial of the Appellant[s'] request for Special Jury Instructions.
IV. Whether the Circuit Court erred in its denial of the Appellant[s'] Motion for New Trial.

         We answer " no" to Questions I, II, and IV, and conclude that Question III was not preserved for appeal. We affirm the judgment entered by the Circuit Court for Prince George's County.

Page 1050

         FACTS AND PROCEDURAL HISTORY

         Appellee began working at a Pepsi bottling facility in 1989. He is a machine sanitizer. He described this as a " physically demanding" job, requiring him to walk up stairs, lift objects, squat under conveyor belts, and spend the lion's share of an eight-hour shift on his feet. On April 18, 2012, appellee slipped and fell at work, injuring his right leg and ankle. A supervisor drove him to Prince George's Hospital Center, where the medical attention focused on appellee's swollen right ankle, although appellee was experiencing such pain that he thought he had also broken his right knee. He was off work for two months. He participated in physical therapy for both the knee and the ankle, and was treated by an orthopedic-surgery practice. In June 2012, appellee was discharged from medical care and cleared to return to work.

         On May 2, 2012, appellee filed a workers' compensation claim. On March 18, 2013, the case was heard before a workers' compensation commissioner. The commissioner issued an order on March 26, 2013, finding, as to permanent partial disability, that appellee had sustained 15% loss of use of the right leg (knee) -- with 5% reasonably attributable to the workplace injury of April 18, 2012, and 10% due to a pre-existing condition -- and that he had sustained 2% loss of use of the right foot, with no apportionment. (The ankle is considered part of the foot in workers' compensation cases.) On April 25, 2013, appellee filed a petition for judicial review in [226 Md.App. 465] the Circuit Court for Prince George's County, and on May 14, 2013, appellants filed a response and jury demand. Trial was scheduled for June 10 and 11, 2014.

         Appellee designated Dr. Michael Franchetti, an orthopedic surgeon, to testify as an expert witness. Prior to being designated as an expert, Dr. Franchetti had agreed to the entry of a consent order by the Maryland State Board of Physicians to resolve disciplinary proceedings brought against him. The consent order issued by the Board on October 4, 2012, concluded that Dr. Franchetti's " actions and inactions [with respect to the patients reviewed] constitute a failure to meet appropriate standards for the delivery of quality medical care, in violation of H.O. § 14-404(a)(22); gross overutilization of health care services, in violation of H.O. § 14-404(a)(19); and a failure to keep adequate medical records, in violation of H.O. § 14-404(a)(40)."

         Pursuant to the terms of the consent order, the Board placed Dr. Franchetti on probation and imposed a $25,000 fine. The consent order included a paragraph stating: " ORDERED that this Consent Order is considered a PUBLIC DOCUMENT pursuant to Md. State Gov't. Code Ann. § 10-611 et seq. (2009 Repl. Vol. and 2011 Supp.)." The consent order contained a separate " Consent" page, signed by Dr. Franchetti. The consent page included language reciting that Dr. Franchetti had been represented by counsel before entering into the consent order. The consent page further provided:

I acknowledge the validity of this Consent Order as if entered into after the conclusion of a formal evidentiary hearing in which I would have had the right to counsel, to confront witnesses, to give testimony, to call witnesses on my own behalf, and to all other substantive and procedural protections provided by law. I agree to forego my opportunity to challenge these allegations. I acknowledge the legal authority and jurisdiction of the Board to initiate these proceedings and to issue and enforce this Consent Order. I affirm that I am waiving my right to appeal any adverse ruling of

Page 1051

the Board that I might have filed after any such hearing.

          [226 Md.App. 466] Dr. Franchetti's de bene esse video deposition in the workers' compensation case was recorded on May 19, 2014. During the deposition, counsel for appellants asked Dr. Franchetti a series of questions about the Board's disciplinary proceedings and the consent order. Dr. Franchetti refused to answer any of these questions, asserting a claim of privilege pursuant to HO § 14-410(a).[1]

         On May 23, 2014, appellants filed a motion to strike the de bene esse deposition of Dr. Franchetti; in the alternative, appellants asked that the court compel Dr. Franchetti to respond to the unanswered discovery deposition questions. On May 28, 2014, appellee filed an opposition to the motion to strike, as well as a motion in limine to preclude any mention of, and any evidence regarding, the Board's disciplinary proceedings and the consent order at the upcoming trial.

         On June 10, 2014, the first morning of trial, the court heard arguments on the pending motions relative to Dr. Franchetti and the Board's disciplinary proceedings. The court denied appellants' motion to strike Dr. Franchetti's de bene esse deposition, and denied the request for an order to compel Dr. Franchetti to answer questions about the Board's disciplinary proceedings and consent order. The court also granted appellee's motion in limine and barred any mention of Dr. Franchetti's disciplinary proceeding. The court concluded that the [226 Md.App. 467] plain language of HO § 14-410(a) was applicable and controlling. The court further concluded that, notwithstanding the consent to the entry of the order, Dr. Franchetti had not given consent to use of the order in subsequent legal proceedings such as this.

         The trial took place on June 10 and 11, 2014. Dr. Franchetti's video deposition was played for the jury, as was the video deposition of Dr. Stephen Matz, a Board-certified orthopedic surgeon who was designated as appellants' expert witness. Dr. Franchetti testified in his deposition that, in his opinion, appellee had a 27% permanent impairment of the right leg (knee) with 17% related to the April 18, 2012, fall, and 10% pre-existing, and 41% permanent impairment to the right foot (ankle), all related to the fall. Dr. Matz testified that, in his opinion, appellee had sustained no permanent impairment as a result of the fall on April 18, 2012.

         Citing Gly Constr. Co. v. Davis, 60 Md.App. 602, 607, 483 A.2d 1330 (1984), appellants requested that the trial court give the jury a non-pattern instruction that stated: " The terms 'injury' and 'disability' are not synonymous and, although they

Page 1052

are used interchangeably, workers' compensation is paid for a 'disability' resulting from an 'injury,' not for the 'injury.'" The trial court denied the request, and explained that, although " it's an accurate statement of the law and certainly . . . fertile ground for you to argue," it was not necessary for the court to give the instruction. When the parties were given an opportunity to take exceptions after the court had instructed the jury, appellants did not register an exception to the court's failure to give this requested instruction.

         The jury returned a verdict in favor of appellee, finding that appellee had sustained a permanent partial disability to his right leg of 17%, with 7% attributable to the fall of April 18, 2012, and 10% due to a pre-existing condition, and further finding that he had sustained a permanent partial disability to his right foot of 24%. Appellants filed a timely motion for new trial, the denial of which is the basis of the fourth question appellants present on appeal.

         [226 Md.App. 468]DISCUSSION

         Questions ...


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