## Facts

- Linda Fazenbaker, a patient with a history of thyroid disease and other medical complaints, was treated by multiple physicians over time.
- Fazenbaker was prescribed propylthiouracil (PTU) for hyperthyroidism/Graves’ disease.
- Around the same general period, Fazenbaker also received Cephalexin, an antibiotic.
- Fazenbaker became severely ill, and her condition was presented at trial as a catastrophic allergic reaction.
- Fazenbaker sued Heather P. Peirce, M.D., alleging medical malpractice based on a failure to recognize that Fazenbaker was suffering a drug reaction and to discontinue PTU in a timely manner.
- Fazenbaker’s causation proof included expert testimony that PTU caused the allergic reaction to a reasonable degree of medical probability.
- The defense suggested an alternate cause: that the reaction could have been caused by an antibiotic in the cephalosporin class, rather than by PTU; defense experts did not offer a reasonable-probability opinion selecting PTU or a cephalosporin as the cause.
- On the last day of trial, after the defense advanced the alternate-cause theory, Fazenbaker asked the circuit court to take judicial notice that Cephalexin is in the class of drugs known as cephalosporins.
- Peirce objected on relevance grounds, not on the accuracy of the classification.
- The circuit court took judicial notice that Cephalexin is a cephalosporin, and the jury returned a verdict for Fazenbaker. Judgment was entered against Peirce.
- Peirce appealed.

## Issues

1. Did the trial court err under Maryland Rule 5-201 by taking judicial notice that Cephalexin is a cephalosporin?
2. Did the trial court err by taking judicial notice at that stage of the trial (as rebuttal evidence)?
3. Did the trial court err by permitting plaintiff’s counsel to argue an improper inference from the judicially noticed fact during closing argument?

## Decision

- The Court of Special Appeals of Maryland affirmed the judgment.
- The trial court did not err in taking judicial notice that Cephalexin is a cephalosporin because the fact was not reasonably disputable and could be verified from reliable sources within the meaning of Maryland Rule 5-201.
- The trial court did not err by taking judicial notice when it did; Rule 5-201 permits judicial notice during trial, and the request responded to a theory developed in the defense case.
- The complaint about an improper inference in closing argument was not preserved for appellate review because Peirce did not make a timely objection to the closing argument.

## Legal Principles

- Under Maryland Rule 5-201, a court may take judicial notice of an adjudicative fact that is not subject to reasonable dispute because it is generally known or can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
- A court may judicially notice a narrow, objective classification fact (such as a drug’s membership in a pharmacological class) without resolving a disputed medical-causation question.
- Judicial notice may be taken during trial, including after the opposing party’s case, when the requested fact meets Rule 5-201’s standard.
- Alleged error based on closing argument generally requires a contemporaneous, specific objection; objecting to the admission or notice of a fact does not, by itself, preserve a separate challenge to how counsel later argued that fact to the jury.

## Conclusion

The appellate court affirmed the malpractice judgment, holding that the trial court properly took judicial notice that Cephalexin is a cephalosporin under Maryland Rule 5-201, that taking notice at that point in the trial was permissible, and that any claim of improper closing argument based on the noticed fact was waived by the lack of a timely objection.


Peirce v. Fazenbaker, 2016 Md. App. LEXIS 1397 (2016)