On September 15, 2019, Jorge Mata fell and fractured his right hip. He was initially treated at Howard County Hospital and the next day he was transported to the University of Maryland Medical Center Midtown Campus (“Midtown”). A hip
replacement surgery was performed, and on September 18, 2019, he was discharged. On September 30, 2019, Mr. Mata returned to the hospital, complaining of pain. He was diagnosed with hematemesis and hemorrhagic shock and hospitalized for five days.
In February 2021, Jorge Mata and his wife filed a civil complaint in the Circuit Court for Baltimore City against Midtown and Dr. Kavita Kalra, a hematologist at Midtown, who was consulted about Mr. Mata’s medical care plan. They alleged medical malpractice and loss of consortium. They designated Dr. Alexander Duncan as a qualified expert and they notified the Defendants that they planned to have Dr. Duncan testify at trial. In preparation for the court proceedings, the Defendants deposed Dr. Duncan on August 28, 2023. Trial was set for January 8, 2024.
On January 4, 2024, the Plaintiffs emailed the court and opposing counsel, requesting a postponement and advised them that Dr. Duncan would not be available to testify on the scheduled trial date. The email contained a text message from Dr. Duncan stating that he “[had] been off the grid in Africa with no phone off [sic] internet access[,]” and “I will not be back till [sic] the end of January. I will not be able to attend court next week.”
The court asked the Plaintiffs when they first reached out to coordinate Dr. Duncan’s appearance at the trial, and they responded they communicated with Dr. Duncan on December 29th – ten days before trial. At the conclusion of the parties’ arguments, the court denied the postponement request. The court further denied the Plaintiffs’ request that Dr. Duncan’s deposition testimony be admitted at trial. The court granted summary judgment to the Defendants, and the Plaintiffs appealed.
Maryland Rule 2-419
Maryland Rule 2-419(3) governs the use, at trial, of depositions obtained during discovery and states: “The deposition of a witness, whether or not a party, may be used by any party for any purpose against any other party who was present or represented at the taking of the deposition or who had due notice thereof, if the court finds: (A) that the witness is dead; or (B) that the witness is out of the State, unless it appears that the absence of the witness was procured by the party offering the deposition; or (C) that the witness is unable to attend or testify because of age, mental incapacity, sickness, infirmity, or imprisonment; or (D) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (E) upon motion and reasonable notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.”
Maryland Rule 5-804
Maryland Rule 5-804 states, in pertinent part: “The following [is] not excluded by the hearsay rule if the declarant is
unavailable as a witness: (1) Former Testimony. Testimony given as a witness in any action or proceeding or in a deposition taken in compliance with law in the course of any action or proceeding, if the party against whom the
testimony is now offered . . . had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.”
The Appellate Court of Maryland stated in its June 27, 2025 unreported Opinion: “It is undisputed that Appellants did not attempt to summons Dr. Duncan or otherwise formally secure his appearance at trial. Under these circumstances, the conditions delineated in Rule 2-419(a)(3) were not met, and the court could not find that the witness was unavailable … Dr. Duncan’s testimony was properly excluded based on the court’s ruling that he was available. Appellants, having no other expert witness, were, then, unable to prove medical malpractice as a matter of law.”
Source Mata v. Kalra, M.D., No. 2361 September Term, 2023.
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