DiLeo v. Nugent

⁶⁵ BOWLING, Judge. This appeal stems from a medical malpractice action brought by appellee, Catherine D. Nugent. Appellee claimed to have suffered post traumatic stress disorder as a result of improper drug treatment and sexual contact with her psychiatrist, appellant, Francisco B. DiLeo. A Health Claims Arbitration (HCA) panel determined appellant was negligent and awarded compensatory and punitive damages.

Appellee rejected the award and prayed a jury trial in the Circuit Court for Baltimore City (Heller, J., presiding). The jury found appellant liable for negligence and intentional misrepresentation. They awarded appellee $50,-000 for past and $150,000 for future medical expenses and $500,000 for non-economic damages. The trial court denied appellant’s motions for judgment notwithstanding the verdict, a new trial and remittitur.

We shall affirm. BACKGROUND Appellee, Catherine D. Nugent, is a certified clinical practitioner of group psychotherapy and group psychodrama. She holds a Bachelor of Arts degree in mental health counseling and a Master of Science degree in applied behavioral science. Appellant is a psychiatrist who maintains a private practice of psychoanalytically oriented therapy.

He has conducted research approved by the U.S. Food and Drug Administration and has published works concerning the use of psychedelic drugs in therapy. Appellee began treatment with appellant on December 21, 1981, and participated in private therapy sessions twice a week until mid-1986. Appellee testified that the therapy became the priority in her life, that she never cancelled a session, and that appellant’s approval was crucial to her. Psychiatrists, testifying as expert witnesses for appellee, ⁶⁶ explained that “transference” 1 occurred in the patient-therapist relationship.

In the summer of 1985, appellee’s therapy had reached what clinically is termed “a therapeutic impasse”. According to expert testimony, when this occurs, the patient becomes “bogged down and tongued-tied” and is unable to verbalize feelings she has for her therapist. Appellee asked appellant if MDMA would be beneficial to her. MDMA, or “ecstasy”, is an illicit psychedelic drug.

He suggested they consider the use of the drug in the future. Appellee told appellant that she had access to the drug, and he indicated it was preferable that she obtain the drug herself. According to appellee’s testimony, appellant indicated in December, 1985, that the time was right for an “all day experimental session” using MDMA. On February 21, 1986, after arriving at appellant’s home at 9:00 a.m., appellee ingested the MDMA pill she had received from her own sources.

As the drug took effect, she described feeling disoriented, light-headed, confused and upset. Appellee and appellant lay on a mat together, and appellant began caressing and fondling appellee. At one point, she requested appellant to touch her sexually. She testified that later he gave her tryptamine, commonly referred to as “white smoke”, to inhale because the drug she had taken needed a booster. ' Later in the afternoon, when appellee expressed her agitation and distress about her sexual contact with appellant, he explained that he had been trying to “modify a negative introject” of hers and that what he had done was a “way of partial fulfillment of [her] oedipal wishes”.

At trial, one of appellee’s experts countered appellant’s ration ⁶⁷ alization for his treatment technique when the expert testified that to do anything of a physical nature with a patient is totally unacceptable, counter-therapeutic, and forbidden by the American Psychiatric Association. Appellee testified that she suffered a panic attack shortly after the drug session and contacted appellant. She testified that he advised her to write down her experiences. She began writing a journal.

Over the next few months, appellee composed an 800 page journal. At one point, she made a photocopy and gave it to appellant. She testified that later she repossessed it and destroyed both the copy and her original. Following the drug session of February 21,1986, appellee began having difficulty functioning in her normal daily routine at home and at work.

She testified that she considered suicide. Witnesses testified that she became withdrawn and anxious. She continued in her regular therapy session with appellant. Our review of appellee’s testimony reveals that appellant’s conduct during these sessions was, to say the least, questionable.

Appellee testified that she and appellant lay on the floor together during therapy sessions and that he sometimes touched her sexually. On one occasion, when appellee arrived for her session, there was a pornographic movie showing on appellant’s television and he appeared “bleary eyed” and was “walking funny”. Appellee testified that appellant scheduled a second drug session with her for July 1, 1986. Appellee’s therapist at the time of trial, Dr. Lois Love, testified that Sansert 2 was administered at that session.

Appellee testified that she reacted negatively to this drug which caused shaking, crying, confusion and fear. ⁶⁸ On October 14,1986, she went to appellant’s home for her scheduled session. During that session, appellee testified that she and appellant engaged in sexual intercourse. Distraught over the events of that session, and her relationship with appellant in general, appellee terminated all contact with the appellant. Appellee testified that her life has changed as a result of the care she received from appellant.

She has terminated her practice as a psychodramatist. Appellee’s experts testified that it is unlikely she will be able to resume her career as a mental health therapist. Her physicians have diagnosed her as suffering from post-traumatic stress disorder 3 and anxiety neuroses. They recommended regular and continuing therapy, which she was undergoing at the time of trial.

Appellant did not testify on his behalf at trial; nor did appellee call him during her case-in-chief. Appellant relied instead on testimony he had given in deposition and before the HCA panel. The jury found appellant liable for negligence and for willful and deliberate misrepresentation. They found that appellee was not contributorially negligent.

This appeal followed. DISCUSSION I. Appellant contends that the trial court committed four errors relating to jury instructions. As we review appellant’s argument, we rely on Maryland Rule 2-520(c) which states: ⁶⁹ The court may instruct the jury, orally or in writing or both, by granting requested instructions, by giving instructions of its own, or by combining any of these methods. The court need not grant a requested instruction if the matter is fairly covered by instructions actually given.

A. First, appellant contends that the trial court erred in giving the “missing witness” 4 instruction as a consequence of appellant’s decision not to testify at trial. We find no merit to this contention. Contrary to appellant’s assertion, his testimony would not have been cumulative. Cumulative evidence is a waste of time because it merely repeats previously undisputed testimony.

McLain, Maryland Practice, Sec. 403.1 (1987); Drug Fair v. Smith, 263 Md. 341, 355 , 283 A.2d 392 (1971). Appellant’s version of his treatment of appellee, even though it may have been repetitive of appellee’s testimony, would have provided the jury with evidence against which to gauge appellee’s testimony. When a party in a civil case refuses to take the stand to testify as to facts peculiarly within his knowledge, the the trial court or jury may infer that the testimony not produced would have been unfavorable. The unfavorable inference applies, however, only where it would be natural under the circumstances for a party to speak, call witnesses or present evidence.

Brooks v. Daley, 242 Md. 185, 194 , 218 A.2d 184 (1965). The events which transpired at the psychotherapy sessions are clearly within appellant’s peculiar knowledge. ⁷⁰ He was in the unique position of being the only other person with any first-hand knowledge of the therapy sessions. In light of the accusations made and the aspersions cast by appellee, we believe it would have been natural for the appellant to offer his account of the therapy sessions. Appellant declares that the “missing witness” instruction was incorrect because appellee had the opportunity to call appellant as her witness.

Appellant’s argument is misplaced. This court has said that a missing witness instruction is improper when a witness is equally available to both sides. Hayes v. State, 57 Md.App. 489, 494-495, 470 A.2d 1301 (1984), quoting Graves v. U.S., 150 U.S. 118, 121 , 14 S.Ct. 40, 41 , 37 L.Ed 1021 (1893). This corollary to the general rule, however, has been applied in cases in which the uncalled witness is not a party.

Jacobson v. Julian, 246 Md. 549 , 229 A.2d 108 (1966); Yuen v. State, 43 Md.App. 109 , 403 A.2d 819 (1979), cert. denied, 286 Md. 756 (1980). Here, appellee had no duty to elicit testimony from appellant who, by definition, was an adverse witness and a party. The use of the “missing witness” instruction was not in error. B. Second, appellant contends that the trial judge’s instruction concerning destruction of evidence was incorrect.

We disagree. Appellee testified that she destroyed the journal which she kept during the final nine months of her relationship with appellant and gave reasons for her actions. 5 The trial judge instructed the jury that the destruction of evidence by a party gives rise to an inference or presumption that would be unfavorable to the person who destroyed or ⁷¹ altered the evidence. The trial judge further explained that the nature of the Inference which could be drawn from this evidence depended upon appellee’s motivation. The trial judge left the possible determinations open to the jury.

She commented that unexplained destruction could lead the jury to infer that the evidence would have been unfavorable to the appellee. Conversely, the trial judge instructed the jury that they could, but were not required to accept appellee’s reasons for destroying the journal. We believe that the trial judge’s jury instruction was correctly aligned with the law set forth in Miller v. Montgomery County, 64 Md.App. 202 , 494 A.2d 761 , cert. denied, 304 Md. 299 , 498 A.2d 1185 (1985). In that case, we said that the destruction of evidence by a party gives rise to inferences or presumptions which are unfavorable to the spoliator.

The inference depends, however, upon the intent or motive of the party who is responsible for the destruction. Unexplained and intentional destruction of evidence by a litigant gives rise to an inference that the evidence would have been unfavorable, but would not in itself amount to substantive proof that the evidence was unfavorable. Miller, 64 Md.App. at 214 , 494 A.2d 761 . Appellant is correct that the trial judge did not elaborate on the portion of Miller in which we said that if a jury finds a party has altered or destroyed evidence with fraudulent intent, it may presume the party’s case is weak and the party’s belief that it would not prevail without the aid of such improper tactics.

Miller, 64 Md.App. at 215 , 494 A.2d 761 . A litigant is entitled to have his or her theory of the case presented to the jury if that theory is a correct exposition of the law and if there is evidence in the case that supports the theory. Myers v. Alessi, 80 Md.App. 124, 131 , 560 A.2d 59 , cert. denied, 317 Md. 640 , 566 A.2d 101 (1989). We do not believe the evidence in this case was sufficient to offer the question of fraudulent concealment to the jury.

There is a distinction between the failure to produce specific evidence and fraudulent conduct aimed at ⁷² suppressing or spoliating evidence. Meyer v. McDonnel, 40 Md.App. 524, 530 , 392 A.2d 1129 (1978). Appellee provided explanations for her failure to produce her journal. The trial judge gave the jury the opportunity to evaluate the credibility of her explanations and draw inferences accordingly.

The instruction given fairly covered the matter pursuant to Maryland Rule 2-520(c). There was no error. C. Appellant next complains that the jury instructions concerning possible contributory negligence on the part of appellee were incorrect. Specifically, appellant contends that the trial court erred in failing to instruct the jury that appellee could be found contributorially negligent even if she did not foresee the specific harm she suffered as long as she was aware she was exposing herself to some harm.