Berger, Nazarian, Beachley, JJ.
medical malpractice appeal presents questions about the
burden of proof under Courts & Judicial Proceedings
Article § 3-2A-04(b)(4), known colloquially as the
Twenty Percent Rule. After finding that Karen Streaker's
expert witness failed to satisfy this rule, which
disqualifies expert witnesses who devote annually more than
twenty percent of their professional activities to activities
that directly involve testimony in personal injury claims,
the Circuit Court for Howard County granted summary judgment
against her and in favor of Kristina Boushehri and Capital
Women's Care, LLC ("CWC"). On appeal, Ms.
Streaker contends that the trial court erred when it included
certain of Dr. Borow's activities in the numerator of the
Twenty Percent Rule calculation. We affirm.
October 31, 2013, Ms. Streaker filed a complaint against Ms.
Boushehri, a Certified Nurse Midwife, and CWC, her practice,
alleging negligence and breach of contract. She filed first
in the Circuit Court for Prince George's County, and the
case was transferred to the Circuit Court for Howard County.
The complaint stemmed from injuries Ms. Streaker alleged that
she suffered while under their care from November 2009 to
June 2010. The details of Ms. Streaker's medical claims
aren't central to the issues on appeal; it will suffice
for present purposes that Ms. Streaker alleged that Ms.
Boushehri's care not only failed to resolve her symptoms
and discomfort, but caused her to suffer complications that
landed her in the hospital, required her to undergo surgery,
and caused ongoing kidney disease.
required by Maryland's Health Care Malpractice Claims Act
(the "Act"), Ms. Streaker designated a medical
expert, Lawrence S. Borow, M.D., to certify that Ms.
Boushehri and CWC had departed from the relevant standards of
care and that the departures proximately caused Ms.
Streaker's personal injuries and damages. In August 2013,
Ms. Streaker filed a Certificate of Qualified Expert from Dr.
Borow in which he attested that he did not devote more than
twenty percent of his professional time to activities that
directly involve testimony in personal injury claims. In
response, the defendants served discovery, including
discovery relating to Dr. Borow's professional
activities. Dr. Borow produced some materials, but declined
to produce others. The defendants eventually filed a motion
to compel financial records that the court granted, albeit a
week before trial and the day before Dr. Borow's
scheduled de bene esse deposition.
videotaped de bene esse deposition of Dr. Borow took
place on May 27, 2015. In addition to the discovery mentioned
above, the defendants also had subpoenaed Dr. Borow's
office calendar and a list of his prior testimony, but Dr.
Borow moved (in Pennsylvania, where he lives) to quash it,
and the deposition went forward without those materials. Dr.
Borow testified during the direct examination portion of the
deposition that he spent approximately fifteen percent of his
professional time on work that directly involves testimony in
personal injury actions. On cross, the defense challenged his
calculation, contending that Dr. Borow had mis allotted time
spent preparing for depositions as work not directly related
to testimony. They complained as well that Dr. Borow's
records were incomplete and that he had failed to reveal or
itemize work he had performed as an expert witness.
trial, Ms. Boushehri and CWC moved in limine to
exclude Dr. Borow's testimony because he failed to
satisfy the Twenty Percent Rule. On June 2, 2015, the trial
court heard argument, recessed, then granted the motion from
the bench. The court reviewed the two major cases applying
the Twenty Percent Rule, Witte v. Azarian, 369 Md.
518 (2002), and Waldt v. University. of Maryland Medical
System. Corp., 411 Md. 207 (2009), reviewed the evidence
and testimony, and attempted to calculate the percentage of
time that Dr. Borow devoted to activities that directly
involve testimony in personal injury claims. But after
placing the burden of proof of the motion on the defendant,
the court struggled to make the calculation from the
documents and information Dr. Borow had produced (or, more to
the point, the documents and information he hadn't
So the reason why the Court read that testimony-which the
Court finds important-is because I think it really relates
and connects to the issues that we have before the Court of
whether or not the twenty percent of the expert professional
activities - were more than twenty percent. We know, based on
the one case, that twenty point six percent and the slightest
amount over twenty percent would, in fact, prohibit and
preclude the witness from testifying.
And the Court has considered the arguments presented by both
the plaintiff as well as the defendants in their
calculations. But the Court finds that the
defendants'-what I would call version or analysis-is much
more accurate of the testimony that's been, in fact,
presented concerning the doctor's activities.
So clearly based on-and I'm only going to use 2014, which
is what-let me also back up. Because one of the questions is,
who has the burden. Because in reading 3-2A-04 it just says
that that is the prohibition, no more than twenty percent. It
doesn't really say who has the burden. I know in the
defendant[s'] memo the defendant says that the plaintiff
has the burden. But if-it is the Court's opinion that the
defendant would have the burden to challenge that and to
present sufficient information to this Court to make that
decision. So I don't find that it is the plaintiff's
burden, I do find it is the defendant's burden.
The other issue that this Court is considering is that based
on the witness's testimony that he clearly knows-meaning
the doctor-about the twenty percent rule, he has testified
numerous times-the Court finds it curious that he does not
itemize or keep records to that extent. The Court also noted
that he failed to produce his calendar that was subpoenaed.
The Court also recognizes that he has used the legal system
in the state of Pennsylvania to prevent the production of it.
And my question is why? And then whether or not this Court
should draw an adverse inference from that failure. Because
clearly we have an expert witness who knows the rules of the
state and when asked to produce it for whatever reason, he
has used the legal system to prevent that. And that still is
the lingering question as to why, and should this Court draw
an adverse inference that the reason why he didn't
produce it was because it would show he has over twenty
percent. But I am not going to go that far, I'm just
going to base my decision on the information that has been,
in fact, presented.
It is clear to this Court that when you consider the factors
that I am required to under the case law, and seeing that in
2014 he did, in fact, earn three hundred and twenty-four
thousand six hundred and two dollars from what we would call
as an expert. We know that he bills four hundred dollars an
hour. And also, we also know that one of the 10-99s was not
included so I am also questioning how many others have not
been included. But from what we do have at four hundred
dollars an hour, that comes to eight hundred eleven hours a
year which is sixteen hours per week based on the medical
legal work. And when the court makes the division it comes to
thirty-three point one two percent. That is clearly above the
twenty percent rule that is prohibited by the statute.
So, therefore, the court will grant the motion to exclude the
testimony of Dr. Borow because he is performing more than
twenty percent of his time on medical legal work which is
prohibited by the statute. So that is going to be the
decision of this Court concerning that issue.
court's decision to exclude Dr. Borow left Ms. Streaker
with no expert to testify that the defendants had breached
the standard of care in her treatment, and the court granted
the defendants' oral motion for summary judgment. Ms.
Streaker filed a motion to reconsider the exclusion of ...