trial court did not abuse discretion in permitting late named expert to testify where opposing party had opportunity to take deposition
How later courts described this case
- trial court did not abuse discretion in permitting late named expert to testify where opposing party had opportunity to take deposition
Written by the judges who cited it.
The opinion
WILNER, Chief Judge,
concurring and dissenting.
I concur in the affirmance of the judgments in favor of Prudential and Carey Winston but dissent from the reversal of the judgment in favor of Dover.
I have two concerns with the panel majority’s conclusions regarding a res ipsa loquitur instruction. First, although I quite agree that, under current Maryland law, the mere offering of evidence of specific negligence does not, of itself, preclude a jury, upon a proper res ipsa loquitur instruction, from inferring negligent conduct, it seems to me that the plaintiff really did prove (or attempt to prove) too much for the doctrine to apply in this case. He marshalled evidence to show the precise cause of the misleveling — the malfunction of the contacts — and to show as well that Dover was negligent in not replacing those contacts prior to the accident. The focus of the case was on whether Dover was remiss in merely cleaning the contacts rather than replacing them.
When the plaintiff’s case is so built around a specific, articulated cause of the event and endeavors to show that that cause arose solely because of specific negligence on the *419 defendant’s part, I do not believe that the plaintiff, if he fails to persuade the jury that his position has merit, can then avail himself of an inference that the event arose from some other cause, also engendered by the defendant’s negligence. If that were the case, a res ipsa loquitur instruction would be appropriate in every negligence case. If that is what Mr. Speiser is selling (Maj. op. pp. 397-98), I don’t buy it.
My second concern is with the notion that elevators don’t mislevel absent someone’s negligence. This Court made a similar kind of bald statement, with respect to escalators, in Beach v. Woodward & Lothrop, Inc., 18 Md.App. 645, at 649 , 308 A.2d 439 (1973), offering no authority or rational explanation for the statement. Similar pronouncements have been made by other courts, as mentioned by the panel majority, and so I obviously cannot complain that its conclusion in this regard is without any legal support. My problem is in understanding the rationale for such a doctrine. Mechanical, electrical, and electronic devices fail or malfunction routinely — some more routinely than others. A speck of dust, a change in temperature, misuse, an accidental unforeseen trauma — many things can cause these devices to malfunction. To allow an inference that the malfunction is due to someone’s negligence when the precise cause cannot be satisfactorily established appears to me to be unwarranted. The cases cited by the panel majority say it is so, but they don’t say why it is so — at least not convincingly.