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Brown v. Contemporary OB/GYN Associates3/27/2002
re finding in the placenta. What they were finding was E. coli. And that's been associated many times with preterm birth.
On recross, the following occurred:
[APPELLANTS' COUNSEL]: Okay. [At your deposition,] I had asked you what was the cause of infection, and you said you didn't even know the cause of infection. Do you remember that?
[DR. ALGER]: Yeah. I don't know why the E. coli got up there.
[APPELLANTS' COUNSEL]: So, when did you find out that it was E. coli?
[DR. ALGER]: We're talking about two different things. I'm not saying E. coli caused this preterm labor. I'm saying that what was cultured from the placenta is an enteric gram-negative rod - greater than 50-percent probability that that would be E. coli. . . . (Emphasis added).
In addition, Anthony Scialli, M.D., a board certified obstetrician/gynecologist, testified as an expert for appellants on March 27, 2000, three days after Dr. Alger. He, too, gave testimony as to a bacterial infection, as follows:
[APPELLANTS' COUNSEL]: Doctor, when you reviewed the pathology report that was done sometime after May 13, 1994, did you make a determination as to the cause of the infection?
[DR. SCIALLI]: I saw there was evidence of infection in the placenta, in the membranes, in the baby; but as to the organism causing the infection, I can't tell you what that is, except to say that it appears to be a gram-negative rod.
[APPELLANTS' COUNSEL]: Now, Doctor, did you render an opinion in this case previously with regard to the cause of infection?
[DR. SCIALLI]: I did.
[APPELLANTS' COUNSEL]: What was that opinion, Doctor?
[DR. SCIALLI]: There was testimony in which I said that the infection was caused by an organism called lyseria .
[APPELLANTS' COUNSEL]: Doctor, what was the basis for that opinion?
[DR. SCIALLI]: I read a pathology report that, as I read it, said that there was lyseria .
[APPELLANTS' COUNSEL]: And can you read that report for the members of the jury?
[DR. SCIALLI]: I don't think you want me to read every word, but the pertinent parts are: many and pure growth of gram-negative rod, enteric, sensitivity upon request . . . .
[APPELLANTS' COUNSEL]: Now, prior to today, have you ever rendered an opinion as to E. coli being the cause of infection in this case?
[DR. SCIALLI]: Not that I recall.
[APPELLANTS' COUNSEL]: In fact, you reviewed that report very well the last time, correct?
[DR. SCIALLI]: Yes.
[APPELLANTS' COUNSEL]: And you had no opinion that E. coli was the cause of the infection, correct?
[DR. SCIALLI]: That's correct. (Emphasis added).
Ordinarily, if an argument is not raised below, it is not preserved for appellate review. See Maryland Rule 8-131(a). The Court of Appeals "has stated that the `primary purpose of Rule 8-131(a) is "`to ensure fairness for all parties in a case and to promote the orderly administration of law.'"' Davis v. DiPino, 337 Md. 642, 647 (1995)(citations omitted). "Providing fairness to the parties may be accomplished by `requir counsel to bring the position of their client to the attention of the lower court at the trial so that the trial court can pass upon, and possibly correct any errors in the proceedings.'" Id. (quoting Clayman v. Prince George's Co., 266 Md. 409, 416 (1972) (alteration in original)).
Although appellants raised the issue in their motion for new trial, they did not object to Dr. Alger's testimony at trial. A party who does not raise an issue at trial, and later p
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