PEPSI BOTTLING GROUP, et al.
DEREK L. PLUMMER
from the Circuit Court for Prince George's County,
Michael R. Pearson, JUDGE.
BY: Robert C. Erlandson & Fatima H. Garland (Godwin,
Erlandson,Vernon & Daney, LLC on the brief) all of Ellicott
City, MD, FOR APPELLANT.
BY: Joseph M. Yahr (Benjamin T. Boscolo, Chasen Boscolo
Injury Lawyers on the brief) all of Greenbelt, MD, FOR
Meredith, Leahy, Reed, JJ.
Md.App. 463] Meredith, J.
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
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.
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
AND PROCEDURAL HISTORY
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.
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.
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. §
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
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
the Board that I might have filed after any such hearing.
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
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.
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.
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.
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
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
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.