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Eagle-Picher Industries Inc. v. Balbos8/29/1990
Porter and Raymark, the evidence comes in as evidence of knowledge of those two defendants of what is in those documents.
Now, with respect to the three defendants, Eagle-Picher, Owens-Corning, and Pittsburgh Corning, that same evidence comes in for a different purpose, not as evidence of knowledge of what is in those documents, but as evidence of what was known at that time as shown in those documents, and as evidence of what other manufacturers could have known. Evidence of knowledge that existed and was available as to Eagle-Picher, Owens-Corning, Pittsburgh Corning. The evidence does not come in as to any other defendant.
(Emphasis added.)
The trial judge did not state specifically, before Fagen's deposition was read, against which defendants the testimony was being admitted. The fact that appellees' counsel mentioned only Raybestos Manhatten and H.K. Porter, is not dispositive. We believe that the trial judge, in stating that the ATI minutes were admissible against Eagle-Picher and the other non-ATI members, albeit for the limited purpose noted above, was also effectively ruling that Fagen's deposition was admissible against the same defendants.
Alternatively, Eagle-Picher argues on appeal that its objection to the reading of Fagen's deposition should have been sustained because counsel for appellees "did not demonstrate that Fagen was dead, or out of state, nor proffer what, if any, efforts were made to produce her to testify live."
We note first that, other than the issues of the trial court's jurisdiction over the subject matter or over the person, an appellate court ordinarily will not decide an issue
unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal.
Md.Rule 8-131(a) (emphasis added). In discussing a precursor to Rule 8-131(a) in Clayman v. Prince George's County, 266 Md. 409, 292 A.2d 689(1972), the Court of Appeals opined that one of the principal purposes of the provision was
to require 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. at 416, 292 A.2d 689. See also Braxton v. State, 57 Md. App. 539, 549, 470 A.2d 1327, cert. denied, 300 Md. 88, 475 A.2d 1200(1984). The Court in Clayman refused to decide the issue of standing because, inter alia, nothing in the record showed that the issue had been argued at the trial; thus, the issue had not been tried and decided by the trial court. Clayman, 266 Md. at 416, 292 A.2d 689.
In objecting to the reading of the deposition, Eagle-Picher's counsel mentioned nothing about a failure by appellees to demonstrate that Fagen was dead or out of state, or what efforts appellees had made to produce her to testify live. Counsel said only that
[opposing] counsel failed to lay the proper foundation for the admission of depositions in evidence, he will fail to
show that they are admissible under Maryland Rules, and he cannot show the necessary prerequisites in admissibility otherwise . . . with respect to showing that the deposition is what it purports to be.
Had this been all that was said, then the argument now raised specifically for the first time might have been preserved. We no
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