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Shpigel v. White12/10/1999
at dismissal on the ground that she was entitled to a jury trial, and the circuit court refused leave to dismiss. See Maryland Rule 2-506(b). The trial date of November 30, 1998 was set on June 11, 1998. On October 21, the plaintiffs served a request for admissions on White to which the medical reports and bills were attached. The plaintiffs sought an admission that the documents were business records and that the amounts charged were fair, reasonable, and necessary. White denied the request for admissions.
The plaintiffs also served the following notice on White on October 21:
"Plaintiffs ... hereby give notice of their intent to place in evidence at the trial of this case pursuant to Maryland Rules including, but not limited to, Rules 5-803(b)(3), (4) and (6), copies of the documents designated EXHIBITS A-T appended to the Plaintiffs' Request For Admissions previously served on Defendant's counsel, authenticated by a custodian of records."
Exhibits A through T include all of the medical records, reports, and bills in issue here.
On the morning of trial the court and counsel met in chambers. Although that meeting is unrecorded, it seems to have considered, in effect, a motion in limine by White. It is clear that the Discussion focused on the plaintiffs' intent to proceed without producing any live expert medical testimony and on White's objection that the records were not admissible, or if admissible, legally insufficient. At the Conclusion of the Discussion, proceedings were conducted in open court for the purpose of giving the plaintiffs the opportunity to make by proffer a record for appeal.
Counsel for the plaintiffs explained that the clients could not afford to pay the fees charged by the experts to testify in court. After describing the way in which the accident happened, counsel proffered that Shpigel would testify that, following the impact, he "felt an immediate pain in his neck landing on the right side. The children were also shaken on the impact and were frightened and crying." Shpigel further would testify "that the pain in his neck worsened over the next several hours, he developed headaches, general stiffness and aching, had difficulty sleeping because of the pain." In addition, Shpigel would have testified that he lost income while he continued to carry certain business expenses during the period he was disabled from working. The children were examined by Dr. Stambler, it was proffered, because the instructions from the hospital were that "they should be followed up on by their pediatrician." Dr. Petok was consulted because "the children became extremely fearful about riding in a vehicle. Their parents' efforts to reassure them ha very little effect. They also had sleep disturbances ...."
The plaintiffs then tendered the records and bills, with accompanying affidavits by the custodians of those records. The affidavits stated as fact all of the elements required for admissibility of a business record under Maryland Rule 5-803(b)(6). With respect to the bills for services, a lay custodian for Northwest Hospital Center, a lay custodian for the P.A., and Drs. Stambler and Petok respectively made affidavit that their bills were fair and reasonable and that the services were incurred as a direct result of the automobile accident of May 21, 1996.
White argued, inter alia, "that Mr. Shpigel himself has had multiple prior accidents and there is documentation indicating that there are residuals. It's our position that we are entitled to cross-examine those individuals on the fairness, reasonableness of treatment, billing and causal connection."
From a procedural standpoint, the circuit court treated t
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