McCormack v. BOARD OF EDUC., 1329

CourtCourt of Special Appeals of Maryland
Citation857 A.2d 159,158 Md. App. 292
Docket NumberNo. 1329,1329
PartiesDuane McCORMACK, as parent and next of friend of Ryan McCormack, et al. v. BOARD OF EDUCATION OF BALTIMORE COUNTY.
Decision Date02 September 2004

Amy M. Orsi (Stephen A. Markey, III on the brief), Towson, for Appellant.

J. Michael Sloneker (Gregory L. VanGeison, Rachel L. Stewart, Anderson, Coe & King, LLP on the brief), Baltimore, for Appellee.

Panel: ADKINS, KRAUSER and RAYMOND G. THIEME, JR., (Retired, specially assigned) JJ.


Four-year-old Ryan McCormack was riding home on a school bus, when the bus crossed the center line of the road, striking first an oncoming vehicle and then a utility pole and a tree. Upon colliding with the front porch of a nearby house, the bus came to rest, leaving Ryan injured and the driver of the bus dead. This tragic mishap spawned the litigation now before us.

Seeking damages for Ryan's injuries and reimbursement for the monies they had spent for his care and treatment,1 Ryan's parents, appellants Duane and Renee McCormack, brought a negligence action, on behalf of Ryan and themselves, in the Circuit Court for Baltimore County against appellee, the Board of Education of Baltimore County ("the Board").2 When the Board conceded liability, the case was tried before a jury solely on the issue of damages. That trial ended in, what was for the McCormacks, a disappointingly small verdict. Blaming this unhappy result on certain evidential rulings made by the circuit court, the McCormacks seek rectification from this Court.

Interestingly enough, the rulings of which they complain do not involve the physical injuries that Ryan sustained as a result of this accident. Rather, they relate to the psychological injuries that he purportedly suffered. The McCormacks claim that the circuit court's exclusion of certain evidence of those injuries — specifically, the videotaped testimony of Ryan's treating psychologist and Ryan's psychological and psychiatric records — requires this Court to vacate the judgment below and order a new trial. Persuaded by the Board's argument that the McCormacks' own claim for medical expenses created a conflict of interest with their son's patient-psychologist privilege, the circuit court gave the McCormacks a choice: either agree to a postponement of the trial so that a guardian could be appointed, pursuant to section 9-109 of the Courts and Judicial Proceedings Article ("CJP"),3 to assert or waive that privilege or face a court order, prohibiting the introduction of the testimony and records at issue. If they requested a postponement for the appointment of a guardian, the court warned, they would have to pay the Board some or all of the costs and expenses that the Board had incurred in preparing for trial.4 When the McCormacks chose to forgo the appointment of a guardian (presumably to avoid paying the Board's trial preparation expenses), the court excluded the videotaped testimony and the records.

The exclusion of that evidence left the court, in its view, with no alternative but to then prohibit the McCormacks from testifying as to any observations they had regarding Ryan's behavior that extended beyond the first few days after the accident. Without the records or the psychologist's testimony, the McCormacks could not establish, the court reasoned, a causal connection between the accident and Ryan's subsequent long-term behavior.

Pulling all of this together, the issue presented by this appeal is:

Whether the circuit court erred in excluding the videotaped deposition of the McCormacks' expert, Joseph H. Kaine, Ph.D., a psychologist who evaluated and treated Ryan following the accident; the psychiatric and psychological records of Dr. Kaine, Mahmood Jahromi, M.D., and Steven Zimmerman, Ph.D.; and evidence of Ryan McCormack's observable, long-term psychological problems.5

For the reasons that follow, we shall vacate the judgment of the circuit court and remand for further proceedings consistent with this opinion.


On June 7, 1999, Ryan was a passenger on a school bus, taking him home from school. Having dropped off the other children, the bus was empty, except for Ryan, the bus driver, Virginia T. Carter, and the bus aide, Ethel Reinhart.

While driving on Golden Ring Road in Baltimore County, the bus driver lost control of the bus. After striking an oncoming car, an electric pole, and then a tree, the bus came to a stop upon colliding with the front porch of a nearby house. The bus driver was killed; Reinhart and four-year-old Ryan were injured.

At trial, a now nine-year-old Ryan testified that he "remember[ed] hitting [his] head ... [a]bout two or three times." He also recalled seeing the bus driver fall out of her seat and down the bus stairs. After the accident, the bus aide, in the midst of "helicopters, people, and a woman screaming," checked Ryan's seat belt; it was loose but fastened. She then attempted to shield Ryan, who was crying and bleeding from his head, from seeing the bus driver's body.

Dispatched to the scene of the bus accident, Officer Raoul Willem of the Baltimore County Police Department observed Ryan "crying very hard." According to the officer, Ryan was "very nervous" but then stopped crying and became "lethargic." Fearing that Ryan had gone into shock, the officer immediately sought medical help.

Ryan was thereafter transported to a hospital. When he arrived, he seemed, according to Mrs. McCormack, "[v]ery sleepy." She said that the doctors "stapled up his head and kept an eye on him for [a] concussion." To Mr. McCormack, Ryan appeared "very pale, very quiet ... [and] in shock." A day or two after the accident, Mrs. McCormack noticed a change in Ryan. She was, however, prohibited by the court ruling now at issue from describing Ryan's behavioral and emotional problems in the weeks that followed the accident.

The accident left Ryan, in his words, "hurt" and "scared." He chose not to ride the school bus for the three days of the school year that remained. After that, he rode on the school bus, except when his fears required his mother to drive him to school. When he does ride the bus, he testified that he sits "[o]ne seat in front of the back of the bus ... [s]o if [he] ever get[s] in another bus accident, [he] can just get out of [his] seat and make sure everybody's all right, then get people to open the emergency exit and they can escape and [he] could, too."

He further testified that he had nightmares following the accident and that he thinks about it "[o]nce in a while [sic]," especially about "getting hurt in the bus accident and [the bus driver] dying, [and] stuff[ ] falling downstairs." Joseph H. Kaine, Ph.D., Ryan's psychologist, testified, at his videotaped deposition-the judicial exclusion of which is the principal issue before us-that Ryan suffered from post-traumatic stress disorder following the accident, which manifested itself in, among other things, wetting himself during the day, increased anxiety, aggressive behavior, and nightmares.


The McCormacks contend that the circuit court erred in excluding, pursuant to section 9-109(b) of the Courts and Judicial Proceedings Article,6 the videotaped deposition of Ryan's psychologist, Joseph H. Kaine, Ph.D. and the psychological and psychiatric records of Ryan's treatment7 that were to be introduced through his testimony. Section 9-109(c)'s requirement that a guardian be appointed to assert or waive the patient-psychologist privilege,8 "[i]f a patient is incompetent" to do so for himself, see CJP § 9-109(c), applies "only within the context of a custody dispute," the McCormacks insist. And, furthermore, section 9-109(d)(3)9 permitted the introduction of Dr. Kaine's testimony, they assert, because Ryan introduced the subject of his "psychological injuries ... as an element of his claim," thereby waiving the privilege.

That error was compounded, the McCormacks claim, when the circuit court excluded their testimony "regarding [their] long term observations of changes in Ryan McCormack's behavior following the bus accident," on the grounds "that without the support of medical testimony, any other testimony regarding behavioral changes that occurred after the first few days of the accident" was immaterial.

After the Board conceded liability for the accident, this matter proceeded to trial on the issue of damages alone. On the first day of trial, the Board moved to exclude Dr. Kaine's videotaped deposition as well as Ryan's psychological and psychiatric records, which were to be introduced through Dr. Kaine's testimony. In support of that motion, the Board argued that, notwithstanding its request to take the deposition of Dr. Kaine, the McCormacks "ignored [its] request to schedule the deposition in a collaborative fashion as [required] under the discovery guidelines," and that when it "served a deposition notice [it was] informed that he would not appear for that discovery deposition." It further argued that Ryan's patient-psychologist privilege, under section 9-109(b), could not be waived by his parents because their interest in obtaining reimbursement for the costs of his psychological and psychiatric treatment conflicted with Ryan's interest in keeping his mental condition a private matter.10

The circuit court rejected the Board's first ground, but granted the Board's motion in limine on the second — that the McCormacks could not waive Ryan's privilege. Consistent with this ruling, it later prohibited the McCormacks from testifying about any post-accident behavior of Ryan's that occurred more than a few days after the accident, because of the absence of expert testimony linking that behavior to the accident.

In reviewing the circuit court's decision to exclude the videotaped deposition of Dr. Kaine, Ryan's records, and the McCormacks' observations, we note that the question of the admissibility of evidence is ordinarily "`left to the sound...

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