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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2705 September Term, 2002

SAMSUN CORPORATION t/a SINGER EXXON

v.

JEFFREY G. BENNETT

Davis, Eyler, Deborah S. Barbera, JJ.

Opinion by Davis, J.

Filed: December 11, 2003

In this appeal, we are called upon to address the issue of whether an expert witness with general knowledge may be qualified to testify as to subject matter involving special knowledge, skill, experience, training, and education. In prior decisions of the

Court of Appeals and this Court, the necessity for expert testimony to prove causation has been thoroughly discussed. As will be

discussed more fully, infra, the necessity to produce an expert to establish the requisite standard of care when deficient medical care is alleged has been addressed. To a lesser extent, prior

decisions have dealt with the qualifications requisite for a witness possessing general knowledge to testify as to a specialized field. We shall hold that deference is to be accorded the trial

court in determining whether an expert with general knowledge is sufficiently conversant with the subject matter to render an opinion as to a specialized area of study. On March 21, 2000, appellee Jeffrey Bennett filed a negligence action in the Circuit Court for Harford County against appellant Samsun Corporation, d/b/a Singer Exxon. The suit originated from

appellee's slip and fall accident in the restroom of the Singer Exxon, from which appellee alleged he suffered lower back injury and resulting erectile dysfunction. jury on December 3 and 4, 2002. The case was tried before a On the first day of trial,

appellant filed a motion in limine, requesting that the court exclude the testimony of appellee's orthopaedic expert witness, Dr. Vincent Osteria. The motion was preliminarily denied by the trial

- 2 judge. was Appellant renewed the motion in limine after Dr. Osteria on his qualifications and training as an

questioned

orthopaedist, but the trial judge again denied the motion. At the close of all of the evidence, appellant filed a Motion for Judgment on the grounds that appellee did not establish

causation between the accident and his injuries.

The motion was

denied and, on December 4, 2002, the jury returned a verdict in favor of appellee in the amount of $111,662.50. Following the

verdict, appellant filed a Motion for New Trial on December 16, 2002, which the lower court denied on January 8, 2003. Appellant

filed this timely appeal on January 21, 2003, presenting one question, which we divide into two questions and rephrase as follows: I. Did the trial court err by denying appellant's motion in limine to exclude the testimony of appellee's expert witness? Did the trial court err by denying appellant's motion for judgment, which alleged that there was insufficient evidence to establish a causal connection between appellee's accident/back injury and his erectile dysfunction?

II.

We answer appellant's questions in the negative and affirm the judgment of the trial court.

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FACTUAL BACKGROUND
On August 1, 1998, appellee suffered a slip and fall on the restroom floor of the Singer Exxon, which is located in Bel Air, Maryland. Appellee suffered an injury to his lower back as a

result of the fall and was treated by an orthopaedist, Dr. Vincent Osteria, on August 4, 1998. During the examination, appellee

alleged that he suffered pain and numbness on the left side of his lower body, specifically in the left buttocks and foot. Although

no surgery was necessary, appellee remained in the care of Dr. Osteria for several weeks and during that time appellee complained of developing bladder, bowel, and erectile dysfunctions.1 As a

result of the erectile dysfunction, Dr. Osteria referred appellee to a urologist, Dr. James Song, in November 2000. Dr. Song,

however, was either unwilling or unable to render a conclusion as to the exact cause of appellee's erectile dysfunction. Appellee appellant. subsequently filed a negligence action against

One of the primary issues at trial was the cause of

appellee's erectile dysfunction. Appellee called Dr. Osteria as an expert witness to testify that the erectile dysfunction had

resulted from the slip and fall at the Singer Exxon.

In response,

Dr. Osteria had treated appellee without surgery on prior occasions for lower back injuries, but the previous treatment primarily dealt with the right side of appellee's body. Appellee was treated by Dr. Osteria in the mid-1980's and in 1995 for a herniated disc in the lower back, which created symptoms in appellee's right leg.

1

- 4 appellant filed a motion in limine to exclude Dr. Osteria's

testimony, arguing that he was not qualified to testify as an expert. Specifically, appellant claimed that, because Dr. Osteria

was an orthopaedist specializing in spinal injury and not in urology, he lacked the necessary knowledge required to form an expert opinion concerning appellee's erectile dysfunction. The

trial judge denied the motion and Dr. Osteria was permitted to establish his qualifications and training as an orthopaedist. After the witness foundation was laid, appellant renewed the motion in limine to exclude Dr. Osteria's testimony. The trial judge

again denied the motion and Dr. Osteria was permitted to testify concerning appellee's erectile dysfunction. On October 31, 2002, Dr. Osteria prepared the following report detailing appellee's injury: I: [Appellee] is having more pain in the left leg but he continues to work and he is managing with short haul trucking. He cannot do the long haul work. He also wants to have another epidural block and his insurance is just about to cut in again so he is going to think about getting that done. He is due to go to court in December as well. IMPRESSION: As far as I am concerned, this man has a symptomatic herniated disc with radiculopathy. It*s been proven clearly by MR scan, etc. and is directly as a result of his fall in the gas station as I outlined in my original notes. DIAGNOSIS: DISPOSITION: HNP L5--S1 with radiculopathy. Follow--up as necessary.

- 5 Note: He continues to experience sexual dysfunction, in my opinion, as a result of his fall, although I have referred him to a urologist for urological opinion. Reviewing my old chart, shows no evidence of these complaints prior to the fall in 1998. Dr. Osteria testified that, when he had treated appellee on the occasions prior to the accident at the Singer Exxon, a

herniated disc bulged to the right of appellee's spine, whereas after the accident, a larger bulging disc protruded to the left. It was Dr. Osteria's medical opinion that the bulge to the left was a new injury resulting from the slip and fall and that the left bulge was "picking off" nerve roots that exited from appellee's lower spine. As explained by Dr. Osteria, orthopaedics is "the study and treatment of skeleton, muscles, tendons, ligaments, nerves, the spine and extremities." Furthermore, Dr. Osteria testified that

the field of orthopaedics includes the study of nerves emanating from the spinal cord and the consequences of injury to those nerves. On direct examination, Dr. Osteria testified: [APPELLEE'S COUNSEL]: Counsel asked if you trained in the field of urology or field of erectile dysfunction. Do you have any education or training concerning the relationship between injuries to the spinal cord and nerves emanating from the spinal cord and the occurrence of erectile dysfunction? [WITNESS]: Yes, sir.

- 6 [APPELLEE'S COUNSEL]: [WITNESS]: Tell us about that. It can be spinal cord or spinal cord nerve injuries can be one of the causes of erectile dysfunction and we have the general knowledge in the sense that you have to avoid doing any damage to those nerve roots to avoid the possible complication of either erectile dysfunction, difficulty with bladder control, difficulty with the control of the sphincter senses or motor parts of the lower extremities which are controlled with the nerve roots. The level in this case i s [fifth lumbar] L5 [first sacral] S1. In the field of medicine, to your knowledge, is there any known relationship to injuries to that level and to erectile dysfunction? Yes. Tell us about that. It is possible that an injury at that level can damage the nerve fibers which would produce either the ability to have an erection, to control the bladder, sphincter dysfunction. One of the things we test for at times [is] motor, erection, sphincter tone. We ask patients if they have problems controlling [the] bladder, et cetera.

[APPELLEE'S COUNSEL]:

[WITNESS]: [APPELLEE'S COUNSEL]: [WITNESS]:

- 7 [APPELLEE'S COUNSEL]: As a result of your experience in the field of orthopaedic surgery do you form opinions concerning problems, causes of erectile dysfunction due to injuries to the spinal cord? It is within the limits of our experience.

[WITNESS]:

Dr. Osteria further testified that the damaged nerve roots control bladder, bowel, and erectile functions. Consequently, Dr.

Osteria concluded, to a reasonable degree of medical probability, that appellee's new injury was responsible for his erectile

dysfunction. At the close of all evidence, appellant filed a motion for judgment. According to appellant's motion, appellee failed to

establish the necessary causation between his injuries and the slip and fall accident at the Singer Exxon. As a result, appellant

argued that the jury would be left to speculate whether any permanent injuries, such as the erectile dysfunction, actually related to the August 1, 1998 accident. The lower court, however, On

denied the motion and the case was submitted to the jury.

December 4, 2002, the jury returned a verdict in favor of appellee. Appellant filed a motion for a new trial but the motion was denied on January 8, 2003. Following the proceedings in the circuit

court, this appeal ensued.

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LEGAL ANALYSIS I
Appellant contends that the trial judge erred by denying his motion in limine to exclude the testimony of appellee's expert witness, Dr. Osteria. As at trial, appellant posits that only a

specialist, such as a urologist, is qualified to present an opinion concerning the causes of erectile dysfunction. According to

appellant, Dr. Osteria is an orthopaedist and, therefore, only qualifies as an expert for issues relating to the musculature, nervous system, and bone structure of the human body. Although Dr. Osteria testified that he had a general knowledge in the area of erectile dysfunction, appellant argues that an expert witness must have specialized knowledge. As a result, appellant claims that Dr. Osteria should not have been permitted to testify about the causes of appellee's erectile dysfunction. Appellee counters that the trial judge has wide discretion in determining whether to admit expert testimony. Furthermore,

appellee asserts that a physician does not need to be a specialist in order to testify on matters in the medical field. Because

orthopaedics includes the study and treatment of nerves stemming from the spine, appellee argues that Dr. Osteria commonly deals with spinal injury related symptoms such as erectile dysfunction. Consequently, appellee contends that the trial judge was correct in denying appellant's motion in limine.

- 9 Maryland Rule 5-7022 controls the admissibility of expert testimony. Rule 5-702 codified the common law rule that the trial

judge must determine whether expert testimony may be admitted. Sippio v. State, 350 Md. 633, 649 (1998). "Under the well-

established Maryland common law of evidence, it is within the sound discretion of the trial court to determine the admissibility of expert testimony." Id. at 648. The court's ruling on whether to

admit or exclude expert testimony will seldom require a reversal. Id.; Radman v. Harold, 279 Md. 167, 173 (1977). A lower court's

ruling, however, may be reversed if the lower court clearly abused its discretion or founded its ruling on some error of law. 279 Md. at 648. In order to qualify as an expert, the witness must have special knowledge of the subject so that the expert "can give the jury assistance in solving a problem for which [its] equipment of average knowledge is inadequate." Baltimore Gas & Electric Co. v. Sippio,

Flippo, 112 Md. App. 75, 98 (1996) (quoting Radman, 279 Md. at 173); see also Md. Rule 5-702.
2

Under Maryland law, as a general

Rule 5-702. Testimony of experts. Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony.

- 10 proposition, in order to qualify as an expert, the witness need not possess special knowledge if he or she is generally conversant with the subject of the controversy. In the area of medical expert

testimony, "a physician need not be a specialist in order to be competent to testify on medical matters." Ungar v. Handelsman, 325 Md. 135, 146 (1992) (quoting Radman, 279 Md. at 173-76). In Radman, a patient of the defendant physician attempted to have an internal medicine specialist qualified as an expert witness to establish that the defendant physician did not perform a total abdominal hysterectomy according to the standard of care required of a surgeon in the performance of that procedure because, after unintentionally knicking the patient's bladder, it was not until the third operation to repair the patient's bladder that the problem was finally eliminated. Concluding that the trial judge

applied an erroneous legal standard in excluding the testimony of the expert witness, the Court of Appeals reasoned: We do not agree entirely with the court*s first reason, that the witness could not qualify as an expert in the flooring trade as he had never previously laid a floor. A witness may qualify if he [or she] possesses special and sufficient knowledge regardless of whether such knowledge was obtained from study, observation or experience. A law professor may be an expert on trial procedure even though he [or she] has never tried a case. There are many expert astronauts who have yet to make a space flight.

- 11 In light of the fact that we have never treated expert medical testimony any differently than other types of expert testimony, we perceive no reason why a person who has acquired sufficient knowledge in an area should be disqualified as a medical expert merely because he [or she] is not a specialist or merely because he [or she] has never personally performed a particular procedure.2 Consequently, we are in substantial agreement with the reasoning of the Supreme Court of Connecticut as expressed in the following succinct statement from the recent case of Fitzmaurice v. Flynn, 167 Conn. 609, 356 A.2d 887, 892 (1975): Recognizing the complexity of knowledge required in the various medical specialties, more than a casual familiarity with the specialty of the defendant physician is required. The witness must demonstrate a knowledge acquired from experience or study of the standards of the specialty of the defendant physician sufficient to enable him [or her] to give an expert opinion as to the conformity of the defendant*s conduct to those particular standards, and not to the standards of the witness'[s] particular specialty if it differs from that of the defendant. It is the scope of the witness'[s] knowledge and not the artificial classification by title that should govern the threshhold [sic] question of admissibility. We note that the great majority of courts in other jurisdictions which have considered the issue also have concluded that while the witness must have sufficient familiarity with the particular medical technique involved in the suit, he [or she] need not have personally performed the procedure or be a specialist in the area.

- 12 _____________ 2. It is true, of course, that all expert witnesses must have sufficient knowledge "to express a well-informed opinion," Refrigerating Co. v. Kreiner, 109 Md. 361, 370, 71 A. 1066, 1070 (1909), or, to put it another way, they must possess such skill, knowledge or experience in that field or calling as to make it appear that (the) opinion or inference will probably aid the trier (of fact) in his search for truth." Consol. Mech. Contractors v. Ball, 263 Md. 328, 338, 283 A.2d 154, 159 (1971). See also State Health Dep't v. Walker, 238 Md. 512, 520-21, 209 A.2d 555, 559-60 (1965). While expert capacity is generally "a matter wholly relative to the subject of the particular inquiry," Refrigerating Co. v. Kreiner, supra, 109 Md. at 370, 71 A. at 1070, we believe that within the field of medicine too, the degree of knowledge, skill, and experience required of a witness depends entirely on the area under investigation. Thus, while we have held that a person testifying in this State on a medical subject need not be licensed to practice in Maryland, Crews v. Director, 245 Md. 174, 179, 225 A.2d 436, 439 (1967), and have noted that a doctor need not be a specialist to qualify as an expert on the cause of an illness, Wolfinger v. Frey, 223 Md. 184, 189-90, 162 A.2d 745, 748 (1960) (dictum), we have also refused to allow those in the medical profession to testify when they were insufficiently familiar with the subject about which they were expressing an opinion. See United Rys. Co. v. Corbin, 109 Md. 442, 450, 72 A. 606, 608 (1909); Dashiell v. Griffith, 84 Md. 363, 377-78, 35 A. 1094, 1095 (1896). Radman, 279 Md. at 171-72 (citations omitted). In Ungar, supra, the defendant physician had removed the thyroid gland of a patient who suffered a stroke that caused significant permanent disability. The medical report attached to

- 13 the patient's affidavit in support of her opposition to summary judgment represented that "preoperative clinical and laboratory findings dictated that surgery be postponed to allow a complete work-up to determine the cause of the patient's elevated white blood count and temperature, and to determine whether a systolic click that had been noted represented a prolapsed mitral valve." Ungar, 325 Md. at 146. The expert witness opined that the embolic

stroke would probably have been avoided had the studies been done and had antibiotics The and post-operative anticoagulants complained been that

administered.

physician's

attorney

petitioner's expert [was] not a surgeon: he's never been a surgeon. He was brought in from Minnesota, or somewhere, to testify in this case. His only credential was he is an M.D. The only surgery he had ever done was "kitchen table surgery." He was able to qualify at that hearing. Id. Judge McAuliffe, writing for the Court, responded to the arguments of counsel for the defendant physician: was wide of the mark. "That argument

As Professor Lynn McClain notes in 5

Maryland Evidence

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