Brief Fact Summary. The Appellant, Eugene Tuer’s (“Mr. Tuer”) husband (the “Appellant”), died while awaiting heart surgery. Mr. Tuer’s surgery was delayed when the Appelleess, Dr. McDonald and others (the “Appelleess”), Mr. Tuer’s treating physician, was called to an emergency surgery. While awaiting surgery, Mr. Tuer died because he had not received a dose of Heparin, a coagulant which had been discontinued in anticipation of surgery.
Synopsis of Rule of Law. Pursuant to Maryland Rule of Evidence (“M.R.E.”) Rule 5-507, evidence of subsequent remedial measures is only admissible to establish feasibility or to impeach a witness’s testimony.
In so holding, we established that in order to impeach the credibility of a witness through the introduction of a subsequent remedial measure, the testimony providing grounds for impeachment must have been initiated by the witness.View Full Point of Law
Issue. Whether the court erred in not allowing evidence of a subsequent remedial measure when, following Mr. Tuer’s death, the hospital changed its policy by halting the practice of discontinuing Heparin with patients who had conditions similar to that of Mr. Tuer?
Whether the court erred in excluding evidence of the medical records of another patient for the purpose of impeaching the physician?
Whether the court erred by refusing to allow the Appellant to introduce rebuttal evidence?
Held. The appellate court ruled that the court did not err in excluding evidence of subsequent remedial measures 1) because there was no testimony that the Heparin could not have been restarted, and 2) because the change in the procedure of administering Heparin had no bearing on Dr. McDonald’s credibility.
The appellate court also held that the court did not err in excluding evidence of medical records of another patient because the records of Mr. Tuer and the records of the other patient were not similar. Therefore, the medical records were irrelevant and not admissible.
The appellate court found that the court did not err in refusing to allow rebuttal testimony by the Appellant. The court stated that the Appellant had first introduced evidence on the puncture issue in her case-in-chief and therefore it was not proper rebuttal evidence.
The Maryland Court of Special Appeals first looked at the doctrine of subsequent remedial measures to determine how it would apply to the facts before the court. The court looked to federal law to determine the policy behind disallowing evidence of subsequent remedial measures. The court determined that the policy behind the rule for excluding evidence of subsequent remedial measures is to increase safety by removing the disincentive to make repairs. The court concluded that evidence of subsequent remedial measures can only be admissible 1) to establish feasibility and 2) to impeach a witness’s credibility.
In examining the feasibility prong of the test to determine admissibility, the court looks at both a narrow and a broad approach to feasibility. The narrow approach, which was adopted by the court, looks at the plain meaning of feasibility, which is: Could the subsequent remedial measure have been instituted? The broad meaning, which the court rejected, would be to determine if the subsequent remedial measure was possible or capable of being utilized or dealt with successfully.
The court determined that impeachment evidence is used to attack the credibility of a witness, and that mere contradictory testimony is not enough to warrant admission of the evidence. It noted that if impeachment evidence meant mere contradictory evidence, the exception to Rule 407 would swallow the rule itself.