Hodge v. Babel

SALMON, Judge. This appeal has its provenance in a January 21, 1999, automobile accident, which occurred in Gambrills, Anne Arundel County, Maryland, about 5:40 p.m. On that date, an automobile, driven by Michael Babel (“Babel”), pulled in front of a car driven by Robin Hodge, aged twenty-two, causing the two cars to collide. Ms. Hodge suffered a cut to her forehead and other injuries as a result of the accident.

She was released that evening from North Arundel Hospital in Pasadena, Maryland. Ms. Hodge brought a negligence action in the Circuit Court for Anne Arundel County against Babel. Prior to trial, Babel conceded that his negligence caused the subject accident. The damage phase of this tort action was heard by a jury in a trial that commenced on October 11, 2001 (Honorable James Cawood, presiding).

The sole issue for the jury to resolve was: What damages would fairly compensate Ms. Hodge for the injuries that she sustained in the January 21, 1999, accident? During the trial, Babel’s attorney called him as a witness. Counsel asked on direct examination, without objection, whether he was presently employed. Babel answered in the negative.

Counsel then asked Babel why he was unemployed. Ms. Hodge’s counsel objected to that question, but the objection was overruled by Judge Cawood. Babel then testified ³⁷⁹ that he suffered from “progressive Multiple Sclerosis” (“M.S.”). Several others questions followed, and the answers to those questions established that Babel was in good health before the accident; M.S. was diagnosed several months post accident.

After Babel had concluded his testimony, counsel for Ms. Hodge asked that the testimony concerning the reason that Babel was unemployed be stricken. That motion was denied. The jury returned a verdict in favor of Ms. Hodge and against Babel in the amount of $2,600. This verdict was broken down as follows: $860 for lost wages; $740 for medical expenses, and $1,000 for non-economic damages.

The verdict was disappointing to Ms. Hodge because she introduced evidence, which, if believed, showed that she had incurred medical bills as a result of the accident totaling $13,453 and had incurred lost wages in the amount of $1,714.44. Counsel for Ms. Hodge filed a motion for new trial. The motion was denied without a hearing. On appeal, the sole issue presented is whether Judge Ca-wood committed reversible error in allowing Babel to tell the jury that the reason he was unemployed was because he suffered from M.S. 1 I. EVIDENCE CONCERNING MS.

HODGE’S MEDICAL CONDITION POST-ACCIDENT The main injuries claimed to have been suffered by Ms. Hodge as a result of the January 21, 1999, accident, were to ³⁸⁰ her neck, shoulder, and back. These injuries were soft tissue in nature. As is common when soft-tissue injuries are claimed, the main question to be decided is whether the jury believes the plaintiff and her experts or whether it believes the testimony of the expert retained by the defense. Ms. Hodge called one live expert witness, Dr. Joseph Chin, and produced another, Dr. Chester DiLallo, who testified by way of videotape.

Babel called Dr. Robert Smith as his sole expert witness. After Ms. Hodge was released from the emergency room on January 21, she missed two days from work immediately thereafter. She saw no health care providers until February 8, 1999, when she visited her family physician, Dr. Imelda Miranda. Ms. Hodge complained to Dr. Miranda of chest pains and discomfort in her back.

Dr. Miranda ordered x-rays, but according to Ms. Hodge, gave her no “additional counsel ... as to how to fix” her medical problems. At that point, Ms. Hodge’s total medical bills were approximately $800. On the recommendation of a friend and because “her neck and back were hurting,” Ms. Hodge visited the office of Dr. Chester DiLallo, an orthopaedic surgeon. Over a period of approximately two months, starting February 10, 1999, she went to Dr. DiLallo’s office for a series of physical exams and physical therapy.

Total charges from Dr. DiLallo for those services were approximately $4,000. Dr. DiLallo testified that when he first examined Ms. Hodge on February 10, 1999, she complained of having discomfort to the back of her neck. She also had discomfort in the lower portion of her neck when she flexed her head forward or rotated her head to the right. Dr. DiLallo concluded, after obtaining x-rays, that Ms. Hodge had sustained a contusion on her forehead with lacerations that were being treated, contusions of her chest and neck, and a scapular muscle strain.

He recommended that she use an anti-inflammatory medication and suggested that she undertake physical therapy on a two- ³⁸¹ times-per-week basis, plus a home program for regaining mobilization. When Ms. Hodge completed her initial series of treatments on April 5, 1999, she had tenderness in her neck and the mid-back area of her spine, but she had regained full motion in her neck, and she had no neurological problems. Dr. DiLallo recommended that she appear for a follow-up visit with him in about one month. He gave her some low-back exercises to do at home, together with advice as to a general exercise program that he thought could help her.

Ms. Hodge contacted Dr. DiLallo once again in September 1999 to discuss her problem of persistent discomfort in her back, which was made worse by weather and certain activities. She was otherwise unchanged from her April 1999 visit. Dr. DiLallo told Ms. Hodge that, if her pain persisted, she could receive injections. About six months later, in March 2000, Ms. Hodge, once again, was seen by Dr. DiLallo.

This time she told him that she had gone through a period of several weeks where she had persistent pain in her back, which was frequent enough to be of concern. His examination showed that she had “a bit of reversal of the dorsal kyfosis” in the mid-back area, which was also the area where she was experiencing discomfort. According to Dr. DiLallo, this meant “that the back, which normally curves like a cat in one direction, was curved in the opposite direction.” In Ms. Hodge’s case, there was a reversal of the normal curve or a flattening. He believed that the flattening that he saw was caused by spasms and “basically provided some credence” to her complaints.

Dr. DiLallo’s diagnosis, at that point, was that Ms. Hodge had a sprain of her interspinaus ligaments in the lower mid-back, which meant that the “fibers of ligaments in the lower dorsal area” had stretched. He also thought that she had also strained some ligaments between her ribs and backbone.” He testified that this type of injury was uncommon and that, in his thirty-plus years in private practice, he had only seen seven patients “with this particular symptom complex.” Ms. Hodge was again offered ³⁸² injections to treat her symptoms, but she rejected the offer because it would bring only temporary relief. Thirteen months after last seeing Dr. DiLallo and approximately six months before trial was set to commence, Ms. Hodge went to see Dr. Joseph Chin, a physician whose specialty is “occupational and physical medicine.” Dr. Chin, in conjunction with a chiropractor, operates a business known as “Total Wellness and Physical Medicine of Bowie” (“Total Wellness Center”). Starting on April 26, 2001, and continuing up until about a week before trial, Dr. Chin, and/or his agents, gave Ms. Hodge numerous hot and cold packs, “unattended electrical stimulation,” “manual therapy,” ultrasound, and other treatments for her spine.

Treatment from the Total Wellness Center cost a total of $7,984. At the Total Wellness Center, Ms. Hodge was initially seen by a chiropractor (Dr. Kappes), but in June of 2001, she saw Dr. Chin, personally. At that time, she complained of pain in the mid- and low-back area. Dr. Chin found no spasms (tightness) in the middle of the back but did find spasms in the low-back area.

Dr. Chin thought that Ms. Hodge had a permanent injury due to the subject accident. He opined that she had benefitted from the therapies she had received at the Total Wellness Center, that the range of motion was better, and that her back was better conditioned. Nevertheless, according to Dr. Chin, Ms. Hodge’s symptomatology had remained constant and there were indications of changes in her musculature. At the request of defendant’s attorney, Ms. Hodge was examined by Dr. Robert Smith, an orthopaedic surgeon.

Dr. Smith examined Ms. Hodge on April 17, 2001—about the same time that she started to receive treatment at the Total Wellness Center. His orthopaedic and neurological examinations of Ms. Hodge were normal. She did not complain of tenderness in any part of her spine, and he found no objective signs of injury. Dr. Smith testified that in reviewing the medical reports concerning Ms. Hodge’s post-accident treatment, he found (1) ³⁸³ that on the day of the accident her back and neck were normal and that no x-rays of those areas were ordered; (2) that when Ms. Hodge visited Dr. Miranda on February 8, 1999, she had no objective symptoms concerning her spine; (3) when Ms. Hodge saw Dr. DiLallo for the first time on February 10, 1999, there were “no objective findings” concerning her neck, shoulder [or] back region, nor did Dr. DiLallo note any subjective complaints regarding the patient’s low-back area; and (4) at the time Ms. Hodge first saw Dr. DiLallo, her complaints were in regard to her “shoulder blades” and “mid-back” area.

Dr. Smith’s opinion regarding Dr. DiLallo’s treatment was developed during the following exchange with defense counsel: Q All right. Based upon his examination, do you have an opinion as to whether or not the treatment [Dr. DiLallo] rendered to the plaintiff was medically necessary? A Again, I have an opinion. Q All right.

And what is that opinion with respect to the treatment that Dr. DiLallo rendered? A Well, in my opinion based upon purely objective findings, the treatment was not necessary because there were no objective findings that would warrant any form of treatment. Q And let me ask you, and—in that situation had you been the provider, what other alternatives would have been appropriate in your opinion? A Well, there are other alternatives.

I’m sure this is also a pretty common experience for many people. You can treat these things at home with either an ice pack, cold pack, or a hot pack. You may have to see the doctor. He may give you medication and teach you how to do some simple stretching things.

Dr. Smith opined that the treatment Ms. Hodge received from the Total Wellness Center was not occasioned by the subject accident. He explained this opinion as follows: [T]emporally or time-wise it is so far removed from the accident that in my opinion it would be within a reasonable ³⁸⁴ degree of medical probability unrelated to the accident in question. And also it would be extremely unlikely given the fact that in the immediate period following the accident all through 1999 there were never any objective findings noted by any physician of an ongoing injury related to this accident. So for those two reasons I believe the subsequent treatment she received in 2001 is not related to this accident.

II

RULINGS BY JUDGE CAWOOD AND HIS INSTRUCTIONS Testimony concerning the fact that Babel suffers from M.S. came about in the following series of questions that were put to him by his counsel. Q MR. CLARK [COUNSEL FOR DEFENDANT:] At the time of this accident back on January 21 of 1999, were you employed? A [DEFENDANT:] Yes.

I was. Q Okay. And for whom were you employed at that time? A Taylor Printing Company in Hyattsville, Maryland.

Q How long had you been employed for that printing company, roughly? A Over 19 years. Q Are you currently employed? A No. I’m not.

Q And why not? MR. BOWLING [COUNSEL FOR PLAINTIFF]: Objection. ❖ H* ❖ THE COURT: I will allow it just briefly. You may answer.

Go ahead. THE WITNESS: I have primary progressive multiple sclerosis. ³⁸⁵ Q And at the time of this accident you have a license— did you have a driver’s license? A Yes. I did.

Q Were you authorized and legally allowed to drive? A Yes. Q Did the diagnosis of your condition happen after this accident? A After the accident.

Q And is it unrelated to the accident? A Unrelated. After some additional testimony, the jury was excused. The following discussion was then held at the bench: MR.

BOWLING: Your Honor, I would like to once again renew my motion and move to strike any testimony pertaining to Mr. Babel’s medical condition. I thought that we were going to eliminate his medical condition. The question of why he doesn’t work for an employer has absolutely no relevance to this case other than to otherwise disorient the jury on Ms. Hodge’s medical condition. MR.

CLARK: I am not sure I see it that way. I certainly didn’t when I asked the questions. I simply was trying to explain to the jury and trying to take away from inference that they might have that he was somehow disabled at the time of the accident which caused the accident, and that was the reason for explaining to them that the condition as now did exist at the time, and that was the reason for it. THE COURT: I don’t frankly think that the mere fact that he has MS—they obviously wonder what this situation is, it isn’t concerning the accident.

We can cover anything I ³⁸⁶ think with an instruction. I don’t see a reason to strike it. I think it would .... (Emphasis added.) Judge Cawood instructed the jury in accordance with Maryland Pattern Jury Instruction 1:15, which reads: IMPARTIALITY IN CONSIDERATION You must consider and decide this case fairly and impartially.

All persons, including corporations, stand equal before the law and are entitled to the same treatment under the law. You should not be prejudiced for or against a person because of that person’s race, color, religion, political or social views, wealth or poverty. You should not even consider such matters. The same is true as to prejudice, for or against, and sympathy for any party.

(Emphasis added.) The jurors submitted a note to Judge Cawood during their deliberation, asking: 1. Did Mr. Babel have insurance to cover any of [Ms. Hodge’s] expenses? 2. [If so,] is the [reference to] PIP shown in Exhibit 3, Section 3, her [PIP] insurance or his? Judge Cawood answered the question as follows: [Insurance] doesn’t matter.... [U]nder what we call the law of the collateral source rule, just