Goldberg v. Boone

⁹⁹ BATTAGLIA, J. This case arises out of a medical malpractice action brought by Respondent, Billy Karl Boone, against Petitioners, Seth M. Goldberg, M.D. and Aesthetic Facial Surgery Center of Rock-ville, Ltd. (“Dr.Goldberg”), for injuries Mr. Boone sustained in the course of undergoing a revisionary mastoidectomy. Dr. Goldberg filed a petition for writ of certiorari, seeking review of a judgment of the Court of Special Appeals and posing the following questions: 1. Whether the failure to grant a mistrial on the grounds that Plaintiffs counsel intentionally introduced improper and inflammatory evidence concerning the recent sniper shootings in Montgomery County entitles the Defendants to a new trial on both liability and damages? 2. Whether the submission to the jury of the issue of lack of informed consent for failure to advise of a more experienced surgeon and breach of the standard of care for the same failure constitutes prejudicial error, warranting a new trial on liability and damages? 3.

Was it error not to require proof of causation as to whether a more experienced surgeon would not have caused the same or similar injury? 1 Mr. Boone also filed a cross-petition presenting two issues: 1. Where a retained expert is asked a single cross-examination question about his prior inconsistent testimony in a highly publicized case, does that question warrant reversal of the denial of a mistrial motion, when the defendants never sought to preclude such questioning in advance, never sought a curative instruction, and did not move for mistrial until a day later, especially when the trial court rejected defense counsel’s claims of improper personal attacks and ¹⁰⁰ commended all counsel for the “highest degree of professionalism” throughout the trial? 2. If this Court considers the request of the defendants to vacate the circuit court’s judgment on liability on the negligence count, did the Court of Special Appeals correctly conclude that, as a matter of law, a surgeon with little experience in a complex procedure performed close to the brain had no duty to inform his patient of the abundance of more experienced specialists available? We granted both petitions.

Goldberg v. Boone, 393 Md. 242 , 900 A.2d 749 (2006). We shall hold that the trial judge did not abuse his discretion in refusing to declare a mistrial or in submitting the informed consent instruction to the jury. I. Facts In 1983, Billy Karl Boone underwent a mastoidectomy 2 to remove a cholesteatomoa 3 from behind his left middle ear. During the procedure, the doctor performing the surgery accidentally drilled a hole into Mr. Boone’s skull, exposing the dura. 4 In November of 1999, Mr. Boone was referred by his ¹⁰¹ primary care physician to Seth M. Goldberg, M.D., an otolaryngologist, 5 and the sole owner and shareholder of Aesthetic Facial Surgery Center of Rockville, Ltd., due to an ear infection and white, pus-like drainage that Mr. Boone was experiencing in his left ear.

Dr. Goldberg determined that Mr. Boone had another cholesteatomoa and that the condition had the potential of being life-threatening. On January 6, 2000, Dr. Goldberg performed an out-patient revisionary mastoidectomy 6 on Mr. Boone to remove the second cholesteatomoa. The day after the procedure, Mr. Boone began experiencing difficulty reading, remembering names, and recalling words. A subsequent MRI scan 7 and a CT scan 8 of Mr. Boone’s brain revealed hemorrhaging and an apparent opening in his skull at the cite of the hemorrhaging.

Mr. Boone filed a complaint in the Circuit Court for Montgomery County in December of 2002 against Dr. Goldberg, in which he alleged that Dr. Goldberg had negligently punctured his brain with a surgical instrument during the revisionary mastoidectomy, causing serious and permanent brain damage. Mr. Boone also alleged that Dr. Goldberg failed to inform Mr. Boone that, due to the hole in his dura, the revisionary procedure would be more complex than a standard revisionary mastoidectomy, that there was a risk of sustaining brain damage from the procedure, and that there were more experi ¹⁰² enced surgeons to perform the procedure in the region than Dr. Goldberg, who only had performed one revisionary mastoidectomy in the past three years. In light of these omissions, Mr. Boone requested in his pretrial pleadings that the Maryland Civil Pattern Jury Instruction on informed consent be given, which provides: a. Informed Consent, Generally: Before a physician provides medical treatment to a patient, the physician is required to explain the treatment to the patient and to warn of any material risk or dangers of the treatment, so that the patient can make an intelligent and informed decision about whether or not to go forward with the proposed treatment.

This is known as the doctrine of informed consent. In fulfilling the duty to disclose, the physician is required to reveal to the patient the nature of the ailment, the nature of the proposed treatment, the probability of success of the proposed treatment and any alternatives, and the material risks of unfortunate outcomes associated with such treatment. A “material risk” is defined as “a risk which a physician knows or ought to know would be significant to a reasonable person in the patient’s position in deciding whether or not to have the particular medical treatment or procedure.” The physician’s duty to disclose material risks to the patient is based upon an objective standard rather than a subjective standard. This means that the question of whether a risk is a “material risk” is based upon whether a reasonable person in the position of the patient would have considered the risk to be a material risk.

Whether the patient would have consented to the procedure, if informed of the risk, is a relevant factor to be considered, but is not conclusive. The physician is not required to divulge all risks, but only those which are material to the intelligent decision of a reasonably prudent patient. b. Informed Consent (Limitations on Duty to Disclose): ¹⁰³ The physician has a qualified privilege to withhold information on therapeutic grounds, as in those cases where a complete and candid disclosure of possible alternatives and consequences more likely than not might have a detrimental effect on the physical or psychological well-being of the patient, or where the patient is incapable of giving his or her consent by reason of mental disability or infancy, or has specifically requested that he or she not be told. Maryland Civil Pattern Jury Instruction 27: 4 (2006).

During the trial, Mr. Boone put on several medical experts who testified that Dr. Goldberg should have disclosed that the revisionary mastoidectomy posed a risk of brain damage, and also that it would have been prudent for Dr. Goldberg to have referred Mr. Boone to a surgeon more experienced in performing such a revisionary mastoidectomy as complex as Mr. Boone’s. Dr. Goldberg also put on several medical experts, one of whom was Dr. David Schretlen, a neuropsychologist 9 who had performed extensive neuropsychological examinations of Mr. Boone. On cross-examination of Dr. Schretlen the following dialogue occurred: [COUNSEL FOR MR. BOONE]: Now, other people who have talked with Mr. Boone or talked about Mr. Boone or given therapy to Mr. Boone have talked about him not being aware, not having full insight into the degree of the anger that he has or the anger that he expresses.

Wouldn’t you agree that is fairly common in these kinds of patients, that they are not fully, they don’t have full insight into all of their problems? SCHRETLEN: I wouldn’t say that. I mean, it happens, but I’m not, (a) I’m not sure that’s the case in this case at ¹⁰⁴ all, and (b) it certainly is, yeah, it’s common, but it’s also commonly not the case— [COUNSEL FOR MR. BOONE]: Okay.

I mean, you are hired here basically as a minimizer, aren’t you? [COUNSEL FOR DR. GOLDBERG]: Objection, Your Honor. THE COURT: Overruled. [COUNSEL FOR MR. BOONE]: Okay.

Now, the very last case you testified, you testified against my client, Sharon Burke. You said she had a mild problem, too. Do you remember that? [COUNSEL FOR MR. BOONE]: She flunked 55 out of 60 tests you gave her and still you called it a “mild” problem.

Don’t you recall that? SCHRETLEN: I recall that I diagnosed her with dementia, [Counsel for Mr. Boone]. [COUNSEL FOR MR. BOONE]: Sir, don’t you remember you used the word “mild” in your courtroom testimony? SCHRETLEN: I said it was milder than some, as you may recall, but that she had a moderately severe dementia syndrome. [COUNSEL FOR MR.

BOONE]: Now, the case before that, that you testified in court, was a criminal case, right? SCHRETLEN: I’m not sure. [COUNSEL FOR MR. BOONE]: Okay. Well, you testified a young man, about 18 years old, and you did a daylong battery of tests on him and he tested abnormal in one or two tests, right?

SCHRETLEN: Oh, yes. I know who you are speaking of. ¹⁰⁵ [COUNSEL FOR MR. BOONE]: Okay. He was only abnormal in one or two tests?

SCHRETLEN: That’s right. [COUNSEL FOR MR. BOONE]: Okay. And that young man, you were willing to come into court and testify that he might have been brainwashed into murdering 10 people in the sniper thing, isn’t that trae? [COUNSEL FOR DR. GOLDBERG]: Objection, Your Honor.

SCHRETLEN: That is absolutely incorrect and outrageous. THE COURT: Sustained. [COUNSEL FOR MR. BOONE]: Well, let’s talk about it for a minute. SCHRETLEN: Yes. [COUNSEL FOR MR.

BOONE]: The young man’s name— [COUNSEL FOR DR. GOLDBERG]: May we approach, Your Honor? This is an outrage. I am not getting into the sniper syndrome, and I don’t have the records and I don’t have— and it has no relevance to this case.

And this is only the kind of cross-examination that I heard once before in my career and that came from Marvin Ellin in a case, and I objected to it then and I do now. We don’t know anything about these other cases. [COUNSEL FOR MR. BOONE]: I tried to lay a fairly careful foundation before I asked him the question, which is that he testified he tested a young man over a period of eight hours, and this young man he tested only tested abnormal on one or two of the tests he gave him, and yet he was willing to come into court and testify on his behalf. Maybe I phrased it wrong on the ultimate outcome, but he is one of the star witnesses for the defense on this issue of whether or not he had some dissociative disorder. ¹⁰⁶ The point is that he will minimize on one side or maximize on the other side.

That is the point I am trying to make here. I think it is absolutely fair. THE COURT: All right. I am not going to allow you to get into this area.

Objection sustained. [COUNSEL FOR DR. GOLDBERG]: Ah right. The next day, before the jury entered the courtroom, counsel for Dr. Goldberg requested that the judge declare a mistrial, stating: [COUNSEL FOR DR. GOLDBERG]: I’ve been very concerned about cross-examination of Dr. Schretlen that’s highly inflammatory and this is a hearsay issue, and counsel ... in a calculated questioning brought out in his questioning that it was the sniper case he found that the defendant was brainwashed in which it was anyone who ever lived in this area knows what that is and that’s Lee Malvo.

It was on the front page of every paper in this area. The killings occurred near this courthouse. Everybody is involved and it was calculated to prejudice the Defense, even though after he had gotten the question out, the Court sustained the objection. My first concern the damage had been done and accordingly, I respectfully move for a mistrial.

The judge then listened to argument from counsel for Mr. Boone as to his rationale for the questions: [COUNSEL FOR MR. BOONE]: My intent was to bring out, and I have brought out previously that, I was trying to impeach his credibility on being a minimizer or a maximizer, as the case may call for, and in that case, the point was, and it was the most recent trial that he testified in before my other trial. It was right on his list and if they had any problem with me getting into it, they certainly could have mentioned it, but my point was that he testified— THE COURT: Well, they did. They objected. [COUNSEL FOR MR.

BOONE]: No, but I mean, I mean, ahead of time because it was right on this list of, that [Counsel for Dr. Goldberg] gave me a list of the man’s testimonial appearances before he appeared and it was very ¹⁰⁷ prominent on the list. So my point was that he did an eight hour test on this other guy, found only one abnormal test in the entire eight hours and still was willing to come into court and testify as he did, and I thought that was quite a legitimate contrast to, you know, coming into court and saying that somebody else who has several abnormal test results is hardly damaging at all, and I agree, it’s, that’s why I was trying to avoid the name of the case---- The judge ultimately denied the motion for a mistrial, stating: THE COURT: I think the purpose was clear or the inference was clear that [Counsel for Mr. Boone] was trying to suggest that he was called regularly as a minimizer initially by your office and then when he went to the Malvo case, that essentially he’s a hired gun, and then I think that was the purpose that he would, at least that’s what I took, that he was trying to show that he would testify essentially for whoever hired him, whoever paid him. THE COURT: And I don’t think it rises to the level of a mistrial. So I’m going to deny the motion for a mistrial.

At the close of all evidence, counsel for Dr. Goldberg requested that the judge not submit the instruction on the doctrine of informed consent to the jury because Mr. Boone had failed to establish proximate cause. Dr. Goldberg argued that Mr. Boone had failed to put on any evidence establishing that, had the specific data that Mr. Boone complained of been disclosed by Dr. Goldberg, Mr. Boone would have chosen not to have had the operation or, alternatively, that had Mr. Boone gone to a more experienced surgeon, he would have, more likely than not, experienced better results. The judge denied Dr. Goldberg’s motion, explaining: THE COURT: I think that what [Mr. Boone is] saying is that, and I guess this is where I’m having trouble is, what [Mr. Boone is] saying is if, in fact, he had been informed correctly, he would have had the option to go somewhere else for treatment from somebody who would not have done this or who would have increased his chances. I mean ¹⁰⁸ that’s what—I guess you’re going to have to—they’re saying that the adequate disclosure would have reasonably been expected to have caused this person to decline the treatment with this doctor. [COUNSEL FOR DR.

GOLDBERG]: And go somewhere else? THE COURT: And go somewhere else. [COUNSEL FOR DR. GOLDBERG]: But what would happen somewhere else? THE COURT: Well, that’s a good question.

It would lessen his chance. That’s essentially what their expert said but I think that’s the issue and I think, under all the facts of the case, it’s probably appropriate to let the jury consider it____ The judge then gave the following jury instructions: ¹⁰⁹ Counsel for Dr. Goldberg then iterated his exception to the informed consent instruction. The jury also was presented with a special verdict sheet including the following questions: ¹⁰⁸ Now there’s also the issue, ladies and gentleman, of informed consent in this case. And in connection with that I tell you before providing a specific type or course of medical treatment to a mentally competent adult patient under non-emergency circumstances, a physician has a duty to obtain the consent of the patient after disclosing to the patient: (1) the nature of the condition to be treated; (2) the nature of the treatment being proposed; (3) the probability of success of that treatment; (4) the alternatives, if any, to the proposed treatment; and (5) every material risk of negative consequences of the treatment being proposed.

A material risk is a risk that a physician knows, or ought to know, would be significant to a reasonable person who is being asked to decide whether to consent to a particular medical treatment or procedure. The purpose of the required explanation is to enable the patient to make an intelligent and informed choice about whether to undergo the treatment being proposed. A physician is liable for an injury caused by the physician’s failure to disclose to the patient, a material risk. ¹⁰⁹ 1. Do you find that the defendant, Seth M. Goldberg, M.D., breached the standard of care in his performance of a radical mastoidectomy performed upon Billy K. Boone, Sr.? _ Yes_No 2.

If your answer to Question No. 1 is “No”, then go to Question No. 3. If your answer to Question No. 1 is “Yes”, do you find that the breach in the standard of care was a proximate cause of the Plaintiffs injuries? _ Yes_No 3. Do you find that the Defendant, Seth M. Goldberg, M.D., failed to adequately advise the Plaintiff of the risks of his radical mastoidectomy procedure? If your Answer to Question No. 3 is “Yes”, then go to Question No. 4. _ Yes_No 4.

If your answer to Question No. 3 is “Yes”, do you find that the failure to adequately advise the Plaintiff of the risks of the radical mastoidectomy was a proximate cause of the Plaintiffs injuries? _ Yes_No. 5. If your answer to Question No. 2 or No. 4 is “Yes”, what amounts of damage do you award? Past and Future Earning Capacity $- Past and Future Medical and Related Expenses Non-Economic Damages After deliberating for two days, the jury answered “Yes” to questions one through four and awarded Mr. Boone $113,000 for loss of past and future earning capacity, $355,000 for past and future medical expenses and $475,000 for non-economic damages, for a total award of $943,000. Dr. Goldberg subse ¹¹⁰ quently filed a motion for judgment notwithstanding the verdict, or in the alternative, motion for a new trial, as well as a motion for a new trial on the issue of future medical damages or in the alternative, a motion for appointment of a conservator, all of which were denied.

Dr. Goldberg noted a timely appeal to the Court of Special Appeals arguing that the informed consent instruction should not have been given to the jury and that the trial judge abused his discretion in refusing to grant a mistrial in light of counsel for Mr. Boone’s inflammatory questions of Dr. Schretlen, in which he attempted to portray him as a “minimizer” and alleging in one question that Dr. Schretlen had been willing to testify that one of the alleged “sniper” killers had been brainwashed. 10 In a reported opinion, the intermediate appellate court held that a surgeon does not have a duty to advise a patient that there are more experienced physicians in the locality to perform an operation, and therefore the trial judge erred in submitting the informed consent question to the jury. ¹¹¹ Goldberg, 167 Md.App. at 425, 893 A.2d at 633. The appellate court held, however, that, in light of the jury’s finding that Dr. Goldberg had negligently performed the mastoidectomy, and the fact that there was sufficient evidence presented regarding Dr. Goldberg’s relative lack of experience performing revisionary mastoidectomies to warrant that finding, the erroneous informed consent instruction did not constitute prejudicial error and did not warrant a new trial on the negligence claim. Id. at 427, 893 A.2d at 634. The intermediate appellate court also concluded that, although Mr. Boone’s counsel had the ability to question Dr. Schretlen about being a paid “minimizer,” he had no right to refer to the sniper shootings, and that question so unfairly prejudiced Dr. Goldberg as to warrant a new trial on the issue of damages because Dr. Schretlen only had testified for the purpose of establishing damages. 11 Id. at 438, 893 A.2d at 641.

Thus, the Court of Special Appeals held that the trial judge’s failure to declare a mistrial in light of those questions constituted an abuse of his discretion. The Court of Special Appeals vacated the circuit court’s judgment and remanded the case to the circuit court for entry of judgment in favor of Dr. Goldberg on the informed consent claim, and for a new trial on the issue of damages resulting from Dr. Goldberg’s negligence. Id. at 444, 893 A.2d at 645. Before this Court, Dr. Goldberg contends that the Court of Special Appeals was correct in holding that the prejudice caused by Mr. Boone’s sniper question during the cross-examination of Dr. Schretlen was so great as to warrant the granting of a new trial, but that the intermediate appellate court erred in holding that the question regarding being a paid “minimizer” was proper and in granting the new trial solely on the issue of damages.

Dr. Goldberg maintains that a partial retrial is an inappropriate remedy in this case because the issue of damages cannot be isolated from the issue of negligence, because the verdict rendered on all issues in this ¹¹² case was clearly the result of the prejudice caused by the unfair tactic of referring to Dr. Schretlen’s work for one of the snipers, and because the level of prejudice caused by the sniper questions transcended any curative measures taken by the trial judge. Therefore, Dr. Goldberg maintains that the only fair and proper remedy is a full retrial on the issues of negligence and damages. With regard to the informed consent jury instruction, Dr. Goldberg argues that, although the Court of Special Appeals was correct in holding that there is no duty in Maryland requiring a physician to inform his or her patients that there are more experienced surgeons in the locality regarding the procedure in question, the court erred in determining that the submission of the instruction to the jury was nonprejudicial. The submission of the erroneous instruction to the jury constituted prejudicial error, Dr. Goldberg maintains, because Mr. Boone intermingled his arguments and evidence regarding informed consent with his arguments and evidence regarding negligence.

Therefore, he submits, there exists a substantial danger that the jury confused the duty to properly inform Mr. Boone with the duty to provide adequate care in rendering its verdict. Moreover, Dr. Goldberg also asserts that it is impossible to tell from the verdict sheet what damages were awarded for what claims, and therefore some of the damages awarded to Mr. Boone may have been awarded under the erroneously submitted informed consent claim. Alternatively, Dr. Goldberg contends, that even if the Court of Special Appeals was incorrect in holding that no such duty exists, the trial judge still erred in submitting the instruction to the jury because what Mr. Boone is really asserting is a loss of chance of a better result claim, which required that Mr. Boone demonstrate that, had another, more experienced surgeon performed the revisionary mastoidectomy, Mr. Boone would have more likely than not, experienced better results. Dr. Goldberg argues that Mr. Boone failed to establish that causation. ¹¹³ Conversely, Mr. Boone contends that the Court of Special Appeals erred in holding that the cross-examination questioning of Dr. Schretlen warranted a new trial on damages because, without a motion in limine to prevent the line of questioning, an expert witness may be questioned regarding income derived from testifying as an expert witness and the professional opinions that the witness previously has rendered.

Mr. Boone also claims that, based upon a weighing of the pervasiveness, severity, and centrality of the prejudice, as well as the steps taken to mitigate the prejudice and the closeness of the case, no new trial was warranted. Mr. Boone further alleges that, because the sniper comments were not in anyway related to the defendant or the defendant’s prior bad acts, the Court of Special Appeals’s effectively granting of a new trial is inconsistent with this Court’s jurisprudence regarding abuse of discretion in failing to declare a mistrial or, alternatively, failing to grant a new trial. Mr. Boone also maintains that the Court of Special Appeals erred in reaching the informed consent jury instruction because, where there are independent grounds to sustain a jury verdict, the verdict should not be disturbed, and there was sufficient evidence to sustain the verdict on negligence. He contends that, contrary to Dr. Goldberg’s assertions, there is no danger that the jury confused the issue of negligence with that of informed consent because the jury verdict form clearly separated the two issues, and the form was thoroughly explained to the jury.

Moreover, Mr. Boone alleges that, no matter which claim he succeeded on, the damages awarded would have been the same. He also argues that the Court of Special Appeals erred in reaching the duty issue because Dr. Goldberg objected to the informed consent instruction on the ground that Mr. Boone had failed to prove causation, not on the ground that the duty did not exist, and, as such, the issue of whether a duty existed was not properly preserved. Mr. Boone further claims that, in holding that a doctor is not required to inform his or her patient that there are more experienced physicians in the locality, the Court of Special Appeals erred by making a determination that is required to ¹¹⁴ be made by the jury. He submits that the doctrine of informed consent requires that the jury determine whether certain information would be material to a reasonable person deciding whether to undergo the procedure such that the doctor would be required to disclose that information.

Finally, Mr. Boone contends that the trial judge correctly denied Dr. Goldberg’s motion for judgment notwithstanding the verdict for failure to prove causation because Mr. Boone was not required to testify that, had he been properly informed, he would not have chosen to have the procedure performed by Dr. Goldberg. Mr. Boone maintains that he only was required to demonstrate that a reasonable person would not have chosen to have Dr. Goldberg perform the operation and that through his expert witnesses he put on sufficient evidence for the jury to draw that conclusion.

II

Discussion A. Motion for Mistrial The first issue that we must address in this case is whether the cross-examination questions propounded by Mr. Boone’s counsel of one of Dr. Goldberg’s experts regarding minimization when testifying for the defense in civil litigation, and one of the “snipers” when testifying on behalf of a defendant in a criminal case, were so prejudicial as to warrant the grant of a mistrial. Because the decision of whether to grant a mistrial lies within the sound discretion of the trial judge, we will only disturb its denial if we find that there was an abuse of that discretion. Lai v. Sagle, 373 Md. 306, 316-17 , 818 A.2d 237, 244 (2003), quoting Med. Mut.

Liab. Ins. Soc’y of Md. v. Evans, 330 Md. 1, 19 , 622 A.2d 103, 112 (1993); Owens-Corning Fiberglas Corp. v. Garrett, 343 Md. 500, 517 , 682 A.2d 1143, 1151 (1996); ACandS, Inc. v. Godwin, 340 Md. 334, 407 , 667 A.2d 116, 151 (1995); Buck v. Cam’s Broadloom Rugs, Inc., 328 Md. 51, 57 , 612 A.2d 1294, 1297 (1992). To that extent, ¹¹⁵ improper or prejudicial statements, remarks or arguments of counsel generally are cured by reproof by the trial judge; to his discretion customarily is left the choice of methods to protect the fair and unprejudiced workings of the judicial proceedings and his decision as to the effect of that choice upon the jury and only in the exceptional case, the blatant case, will his choice of cure and his decision as to its effect be reversed on appeal.

DeMay v. Carper, 247 Md. 535, 540 , 233 A.2d 765 -768 (1967). See also Brooks v. Daley, 242 Md. 185, 197-98 , 218 A.2d 184, 190-91 (1966); Nelson v. Seiler, 154 Md. 63, 72-73 , 139 A. 564, 567-68 (1927). Whether a “blatant case” exists to warrant a finding of abuse of discretion requires us to make two determinations: first, whether the moving party was prejudiced by the opposing party’s conduct, comments or evidence; and second, whether the trial judge took sufficient curative measures to overcome that prejudice, or, whether the prejudice was so great that, in spite of the curative measures, the moving party was denied a fair trial. See Tierco Md., Inc. v. Williams, 381 Md. 378, 413-14 , 849 A.2d 504, 525-26 (2004); Owens-Corning Fiberglas Corp., 343 Md. at 518-19 , 682 A.2d at 1151-52 ; Evans, 330 Md. at 19 , 622 A.2d at 112 , citing Rainville v. State, 328 Md. 398, 408 , 614 A.2d 949, 953-54 (1992); ACandS, Inc., 340 Md. at 407 , 667 A.2d at 151-52 .

In this case, the Court of Special Appeals correctly held that Mr. Boone’s counsel’s paid “minimizer” question during the cross-examination of Dr. Schretlen was not prejudicial but erred in holding that the question regarding one of the snipers was so prejudicial to the proceeding that it transcended any curative measures taken by the trial judge and, therefore, warranted a retrial on damages. Cross-examination of a witness is governed by Maryland Rules of Civil Procedure, Rule 5-611, which provides in pertinent part: (a) Control by Court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the ¹¹⁶ truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment, (b) Scope of cross-examination. (1) Except as provided in subsection (b)(2), cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness.

Except for the cross-examination of an accused who testifies on a preliminary matter, the court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination. (2) An accused who testifies on a non-preliminary matter may be cross-examined on any matter relevant to any issue in the action. Maryland Rule 5-611(a) & (b). Rule 5-616(a)(4) also provides that the credibility of a witness may be attacked on cross-examination through questions directed at “[pjroving that the witness is biased, prejudiced, interested in the outcome of the proceeding, or has a motive to testify falsely.” Maryland Rule 5—616(a)(4).

It is well established in Maryland that an expert witness may be questioned on cross-examination about compensation received for testifying, as well as about the expert’s history of employment as an expert witness, in order to reveal bias or interest in the outcome of the proceeding. As early as 1892, in Wise v. Ackerman, 76 Md. 375 , 25 A. 424 (1892), we held that the trial judge had abused his discretion in sustaining objections to questions regarding comments the plaintiffs expert witness had made in an unrelated case regarding his ability to get large verdicts for plaintiffs. Id. at 393-94 , 25 A. at 427 . We explicated that questions revealing an expert witness’s interests, motives, inclinations and prejudices are appropriate lines of questioning on cross-examination of an expert witness.

Id. at 394 , 25 A. at 427 . In Mezzanotte Construction Co. v. Gibons, 219 Md. 178 , 148 A.2d 399 (1959), we held that the trial judge had abused his discretion in sustaining an objection to questions regarding how much money the plaintiffs expert witness was being paid for testify ¹¹⁷ ing in that case and from prohibiting any further questioning into the expert witness’s compensation; in so holding, we noted that “the compensation of an expert witness is a proper subject for cross-examination,” because it reveals the expert witness’s interest in the case, “which might be deemed to affect his credibility or bias.” Id. at 181 , 148 A.2d at 401-02 . In Wrobleski v. Lara, 353 Md. 509 , 727 A.2d 930 (1999), counsel for the defendant attacked the veracity of the plaintiffs expert witnesses through questioning that revealed that the expert had testified 50 to 60 times for medical malpractice plaintiffs, that about 25 of those times had been for the clients of the plaintiffs attorney, that 80% of his appearances were on behalf of plaintiffs, and that, in the preceding twelve months, he had earned between $30,000 and $50,000 through testifying, most of which was for the plaintiffs attorney. We upheld the judge’s decision to permit testimony regarding the total amount of compensation the expert witness had received from testifying as a witness in the previous year because the question sought to expose the witness’s potential bias; we iterated that questions regarding how much an expert witness is being paid for his or her services in a particular case, the frequency with which the witness testifies in similar kinds of cases, whether the witness customarily testified on behalf of plaintiffs or defendants, whether the witness is frequently employed by a particular party or attorney and, if so, how much income the witness derives from that employment, and the amount or percentage of the witness’s total income that is derived from lawyer referrals or testimony in lawsuits, also are appropriate queries to expose an expert witness’s bias.

Id. at 517-18 , 727 A.2d at 933-34 . In the case sub judice, the paid “minimizer” question asked by Mr. Boone’s counsel was asked for the purpose of suggesting that Dr. Schretlen might testify in accordance with the position of the person by whom he was being paid. The question, therefore, comes within the penumbra of allowable questions that this Court heretofore has deemed appropriate. See id. at 518 , 727 A.2d at 934 (“That an expert in a particular ¹¹⁸ field may be in effect a ‘professional witness’ in lawsuits, rather than being more or less exclusively a practitioner whose employment in a lawsuit as a witness is merely incidental to his or her profession, is a matter which is likely to bear on the credibility of that expert, since a significant portion of the expert’s livelihood may thus depend on his or her desirability as a favorable and convincing witness, thus possibly leading to a temptation for the witness to color findings and testimony to suit the needs of the proponent party, rather than to evaluate and present the subject matter of the testimony with complete impartiality.”), quoting Russell G. Donaldson,, Annotation, Propriety of Cross-Examining Expert Witness Regarding His Status as “Professional Witness,” 39 A.L.R.4th 742 , 746 (1985).

Dr. Goldberg also asserts, nevertheless, that the sniper line of questioning generated a prejudice as pervasive as those explored in Medical Mutual Liability Insurance Society of Maryland v. Evans, supra, Lai v. Sagle, supra, and Tierco Maryland, Inc. v. Williams, supra. 12 In those cases, however, the objectionable questions or comments referred either to inadmissable evidence or were repeatedly interjected into the proceedings, obscuring the issues on trial. In Evans, supra, an action for bad-faith failure to settle a medical malpractice action, counsel for the plaintiff questioned the defendant’s witness on cross-examination regarding a previous