In a reported opinion, Maryland’s Court of Special Appeals has applied Maryland’s 20% Rule for expert witnesses in personal injury cases and affirmed summary judgment in favor of a prominent OB-GYN practice group. At trial in 2015, Kelly Hughes Iverson and M. Peggy Chu convinced the trial judge in the Circuit Court of Howard County that Plaintiff’s expert, Dr. Lawrence S. Borow, devoted more than 20% of his professional time to activities that directly involve testimony in personal injury claims. By statute, Maryland limits such experts to 20% to prevent the use of “Hired Gun” professional witnesses in personal injury cases. Finding that Dr. Borow did not comply with the 20% Rule, the trial court entered judgment in all Defendants’ favor without a trial.
For years, certain expert witnesses have dodged the 20% Rule by obfuscating, testifying inaccurately about their activities, and refusing to produce records that would substantiate (or refute) their signed certificates of compliance. Here, Dr. Borow, who has testified in hundreds of cases and earned millions of dollars in litigation as a paid medical-expert witness, fought discovery of how much professional time he spent in activities that directly involve testimony in personal injury claims. He gave vague and inaccurate testimony and produced financial records only after a court order to do so. Even then, his relevant earnings records were incomplete, and he never produced his redacted office calendar, which would have shown how much, if any, medicine he actually practices.
On appeal, Plaintiff argued that the trial court had made a legal error. Assisted by Derek M. Stikeleather, Kelly Hughes Iverson showed the appellate court that the ruling excluding Dr. Borow was a proper exercise of discretion by a trial judge who was given a “messy and hotly disputed record.” The three-judge panel affirmed that “the burden of persuasion never shifts in a medical malpractice case” and the plaintiff must carry this burden. It is not the defense’s burden to disqualify the plaintiff’s expert. Given Dr. Borow’s resistance to basic discovery, serious gaps in the records he did produce, and his lack of credibility, the trial court “was well within its discretion to find that” Dr. Borow did not show that he complied with the 20% Rule.