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Dover Elevator Co. v. Swann3/25/1994
5-96, 620 A.2d at 1004. We therefore conclude that the reasoning of Hickory Transfer Co. v. Nezbed is dispositive of the issue, and Swann sought to prove "too much and too little." 202 Md. at 263, 96 A.2d at 245. Swann sought to prove too much because his expert's testimony endeavored to establish the specific causes of elevator number two's misleveling, thereby precluding his reliance on res ipsa loquitur . On the other hand, he apparently proved too little because Moynihan's testimony failed to persuade the jury, as evidenced by the verdict in favor of all the defendants.
Permitting reliance on res ipsa loquitur in such a case is tantamount to requiring an alternative jury instruction based on the doctrine in virtually every elevator misleveling case. Such a requirement is contrary to the doctrine's underlying purpose, which is to afford a plaintiff the opportunity to present a prima facie case where direct evidence of the specific cause of an accident is unavailable or solely in the hands of the defendant. See Blankenship, 261 Md. at 41, 273 A.2d at 414 (stating that res ipsa loquitur only applies when "'the demands of justice make its application essential,'" because the "'true cause of the accident is accessible to the defendant, but inaccessible to the victim of the accident'" (quoting Potts, 183 Md. at 488, 39 A.2d at 555)).
If expert testimony is used to raise an inference that the accident could not happen had there been no negligence, then it is the expert witness, not an application of the traditional res ipsa loquitur doctrine, that raises the inference. The expert testimony offered in these "quasi res ipsa loquitur cases" differs somewhat from more traditional expert testimony because, instead of testifying that a particular act or omission constituted a failure to exercise due care, the expert testifies to the probability that the injury was caused by the failure to exercise due care. See Meda, 318 Md. at 428, 569 A.2d at 207. The expert also testifies that the accident ordinarily would not occur unless there was a failure to exercise the appropriate degree of care. Like a res ipsa loquitur case, such expert testimony is offered to explain why there is a probability of negligence, which may be inferred from the circumstances of the accident, even though the expert is unable to pinpoint any particular negligent conduct. Although such testimony does not isolate the specific negligent conduct, it does allow the jury to find negligence as the result of the expert's opinion rather than by circumstantial evidence and common knowledge as in the usual res ipsa loquitur case.
Both Meda and Orkin are among well-established Maryland precedents which assert the proposition that application of res ipsa loquitur is not appropriate in a case which uses expert testimony to resolve complex issues of fact. In Orkin, we pointed out the difference between res ipsa loquitur and the same type of inference which may be drawn by an expert witness.
"It is important to distinguish between: 1) the inference of negligence that may properly be drawn by an expert, but could not properly be drawn by a lay juror, and 2) the inference of negligence that may properly be drawn by a lay juror from the facts, unaided by expert testimony. Of the first, it might be said that 'the thing speaks for itself,' at least in terms of what the facts say to the expert. But that may be said of inferences in general, and yet it is not res ipsa loquitur as we know that concept in the law of negligence. In the str
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