Kelch v. Mass Transit Administration

Liss, J., delivered the opinion of the Court. Melvin, J., concurs and filed a concurring opinion at page 305 infra. This is an appeal by Ronald M. Kelch and Carol Kelch, his wife, appellants, from a judgment returned in favor of the Mass Transit Administration, appellee, after a lengthy trial in the Superior Court of Baltimore City. Appellant, Ronald Kelch, on September 18, 1974 was operating a motorcycle in Baltimore City in a northerly direction on Pulaski Street at its intersection with Ramsay Street.

The appellant’s version of the facts stated that a bus belonging to the M.T.A., appellee, was being operated in a southerly direction on Pulaski Street and that its driver attempted to make a left turn, onto Ramsay Street, into the path of the appellant’s vehicle. The bus driver testified that his view of the road was partially blocked by the contour of the area which included a curve in the road approaching the intersection of Pulaski and Ramsay Streets; that he had begun his turn; that the front of his vehicle had barely crossed the center line when he saw the motorcycle and stopped the bus; and that his bus was stationary for several seconds when it was hit by the motorcycle. The appellee presented as a witness a passenger on the bus who estimated that the bus had been at a standstill about four seconds when it was struck by the motorcycle. The testimony presented by the appellant indicated that he had sustained serious and disabling injuries causing him to ²⁹³ incur substantial medical bills.

Appellant testified that he sustained serious monetary losses because of his inability to return to work as a result of his injuries. The case was submitted to the jury which returned a verdict for the defendants-appellees, and it is from this judgment that this appeal was taken. Appellants raise three issues, the first of which is divided into three sub issues. Those issues are stated by the appellants as follows: 1.

Were the appellants denied the right to have their case tried by a fair and impartial jury? A. Did the court err in failing to grant appellants’ requested voir dire question No. 11 concerning co-equal rights of motorcycles and other vehicles lawfully using the highway? B. Did the court err in failing to grant appellants’ motion in limine concerning mention of Social Security disability benefits as a collateral source? C. Did the court err in failing to grant appellants’ requested mistrial motions and taking remedial action after numerous instances of misconduct of appellees’ counsel? 2.

Whether the lower court committed prejudical error in denying appellants’ discovery of appellees’ accident reports prior to trial. 3. Whether the trial court erred in failing to grant a directed verdict in favor of the appellants on the issue of negligence. ISSUE 1A Prior to the impaneling of the jury appellants requested the trial court (Dyer, J.) to propound its voir dire question No. 11. That question stated: This case involves a collision between the plaintiff’s motorcycle and a Mass Transit Administration bus.

Do you understand that a motorcycle is, by law, a licensed motor vehicle which has the same rights, and is subject to the same obligations and duties as any other motor vehicle driven on the streets? The trial judge refused to propound this question, but during the course of voir dire ²⁹⁴ questioning did ask if any of the prospective jurors had any feelings, prejudices or fixed opinions which would prevent them from rendering a fair and impartial verdict in this case. One of the prospective jurors stated to the judge, in the presence of the other members of the jury panel, that her father had been killed on a motorcycle and she considered them dangerous. That prospective juror as well as several others were discharged for cause; none of the remaining members of the prospective jury panel expressed any prejudice or admitted an inability to render an impartial verdict.

Appellants contend the refusal of the trial court to propound voir dire question No. 11 amounted to an abuse of the trial judge’s discretion. We do not agree. We suggest that the appellants have misconstrued the purpose of voir dire questioning. Voir dire is not an appropriate vehicle for instructing the jury in the law of the case.

The sole purpose of voir dire is to ascertain the existence of cause, if any, to disqualify a juror from participating in consideration of a case. Casey v. Roman Catholic Archbishop, 217 Md. 595, 605, 143 A. 2d 627 (1957); Grossfeld v. Braverman, 203 Md. 498 , 101 A. 2d 824 (1954); Adams v. State, 200 Md. 133 , 88 A. 2d 556 (1952). Either party in a jury trial has a right to have questions propounded to prospective jurors on their voir dire which are directed to a specific cause for disqualification, and the failure to allow such questions is an abuse of discretion constituting reversible error. Alexander v. R.D. Crier & Sons Co., 181 Md. 415 , 30 A. 2d 757 (1943); Cohen v. State, 173 Md. 216 , 196 A. 819 (1937).

The scope of questions propounded to jurors is in the discretion of the trial court. In exercising that discretion, the Court of Appeals said, in Bryant v. State, 207 Md. 565, 583 , 115 A. 2d 502 (1955): In the exercise of ... discretion, the trial judge should adapt the questions to the needs of each case in the effort to secure an impartial jury. Any circumstances that may reasonably be regarded as rendering a person unfitted for jury service may be made the subject of questions and a challenge for cause. Accordingly an examination of a juror on his voir dire is proper as long as it is conducted within ²⁹⁵ the right to discover the juror’s state of mind in respect to the matter in hand or any collateral matter reasonably liable to unduly influence him.

We find no basis for holding that the trial court was arbitrary or that it abused its discretion in refusing to propound the general proposition of law encompassed in voir dire question No. 11. This is particularly true when it is considered that the trial judge did ask the voir dire question which required the prospective jurors to answer whether they had any feelings or prejudices concerning people who owned or operated motorcycles which would prevent the juror from returning a fair and impartial verdict. The statement of the law contained in voir dire question No. 11 was appropriately given to the jury at the conclusion of the evidence before the case was submitted to the jury. Finally, we note that at one point in the proceedings, .counsel for the appellants complimented the trial judge for making available to the litigants a fair and impartial jury panel.

We must conclude under the circumstances that the complaint concerning the court’s abuse of its discretion is an afterthought occasioned by the unsatisfactory verdict. We find no abuse of discretion by the trial court. ISSUE IB Appellants next urge that the trial court erred in failing to grant appellants’ motion in limine restricting the appellees from mentioning social security disability benefits being paid to the appellant, Kelch, since they were funds paid to Kelch from a collateral source and the appellee was entitled to no credit in determining the jury’s assessment of damages because of such collateral funds. Again we disagree.

The trial judge denied the motion in limine but ruled that the relevance of the social security benefits was to be restricted only to the issue of whether the payment of these benefits had any effect on the appellant’s statement that he was unable to work. The trial judge very carefully instructed the jury of that in assessing damages: ... you are not to consider the social security benefits which have been paid to Ronald Kelch and ²⁹⁶ his family in the past, and which may be paid to him in the future, for the reason that the law considers that Mr. Kelch has earned such social security payments by his labor, and that such earnings should not benefit the person whose negligence caused this accident, if you find such negligence. You are therefore instructed that you should not reduce the amount of your verdict either by reason of social security benefits or the fact that certain medical or hospital bills may have been paid by medical assistance, or from some other collateral source. However, you may consider the collateral source of money in judging the motivation of the plaintiff to return to work, and for those same reasons you should not reduce your verdict, if any such you find, by the amount of any income tax considerations or any estimated tax.

We consider this a fair statement of the law. The Court of Appeals, in Leizear v. Butler; 226 Md. 171 , 172 A. 2d 518 (1961), approved the admission of evidence that a plaintiff had been paid his wages by his employer during his absence from work, allegedly as a result of injuries sustained in an accident but ruled that the amount of damages was not to be reduced because of payment of these funds from a collateral source. In Leizear, supra, the Court of Appeals noted with approval that the evidence of collateral payments is admissible if there is evidence in the case of malingering or exaggeration of injury (McElwain v. Capotosto, 122 N.E.2d 901 (1954); Union Transports, Inc. v. Braun, 318 S.W.2d 927 (1958); cf. Ridilla v. Kerns, 155 A. 2d 517 (1959)) but evidence as to collateral payments is inadmissible in the absence of evidence of malingering or exaggeration or where the real purpose of the evidence offered as to collateral sources is the mitigation of liability for damages of the defendant. R. E. Dumas Milner Chevrolet Co. v. Morphis, 337 S.W.2d 185 (1960); McElwain v. Capotosto, supra; Hellmueller Baking Co. v. Risen, 174 S.W.2d 134 (1943).

In the case sub judice, the appellee raised the issue of exaggeration of the plaintiffs injuries by the appellees’ cross-examination of the attending physician ²⁹⁷ during which the physician conceded that there was, at least, a suggestion that the appellant was unwilling to seek employment possibly because the social security benefits the appellant received were greater than he might have earned if he were employed. We find no error in the trial court’s rulings on this issue. ISSUE 1C We find no merit in appellants’ contention that the trial court erred in refusing to grant their motion for a mistrial by reason of the misconduct of appellees’ counsel. In spite of the appellants’ suggestion to the contrary, we perceive no appeal to racial prejudice.

The decision to grant or to deny a mistrial rests in the sound discretion of the trial judge, and in the absence of proof of abuse of that discretion his decision will not be disturbed on appeal. Generally, the choice of measures to protect the fair, unprejudiced workings of the trial court’s proceedings is left to the discretion of the court, and only in exceptional cases will its choice be reviewed by the appellate courts. Nelson v. Seiler; 154 Md. 63 , 139 A. 564 (1927). In Ferry v. Cicero, 12 Md. App. 502 , 280 A. 2d 37 (1971), quoting from the opinion of Chief Judge Hammond in DeMay v. Carper, 247 Md. 535 , 233 A. 2d 765 (1967), we adopted the following rule: These rules are that 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. 12 Md. App. at 508 .

We have carefully read and considered the extensive record extract in this case and conclude that the trial judge was in complete command of the trial and that there is nothing in the record which would indicate that the conduct of appellee’s ²⁹⁸ counsel required the court to grant a mistrial. On the contrary, we find that the trial court’s rulings in this hard fought case provided a fair and unprejudicial trial for both sides. ISSUE 2 The appellants next assert that the discovery judge committed prejudical error when he denied appellants access to certain reports, prior to trial, concerning the accident which were in the appellees’ possession. On March 28, 1978, appellants sent a notice of deposition to appellees’ counsel which required attendance at a deposition, scheduled for April 7,1978, of certain employees of the M.T.A. including the bus driver.

The notice further required M.T.A. to produce the person who investigated the accident, as well as Edward Brizendine, who signed M.T.A.’s answer to interrogatories. The deponents were instructed to bring with them statements, diagrams, photographs and M.E.15 and M.E.18 reports prepared by employees of M.T.A. The deponents failed to appear at the deposition and appellants filed a motion to compel the discovery proceeding and attached to this motion a statement of points and authorities. Appellees filed an answer in opposition to the appellants’ motion and the matter came up for hearing before Judge David Ross, sitting as Discovery Judge for the Supreme Bench of Baltimore City. Judge Ross denied the motion.

Maryland Rule 400 d. provides as follows: d. Trial Preparation Materials. Subject to the provisions of sections e (Party’s or Witness’ Own Statement) and f (Information From Experts Who Are Expected to Testify at Trial) of this Rule, a party may not obtain discovery of documents and tangible things prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) except upon a showing that (i) the materials are otherwise discoverable under section c of this Rule, and ²⁹⁹ (ii) the party seeking discovery has substantial need of the materials in the preparation of his case, and (iii) he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation.

The provisions of Rule 400 d. are substantially similar to the requirements of Federal Rule 26(b)(3) which places the burden on a party who seeks discovery to show a "substantial need” in order to be entitled to discovery. “Substantial need” requires a showing of (1) importance of the material to be discovered, (2) an inadequate alternative means of discovery, and (3) a lack of documents substantially equivalent to the documents sought. Kennedy v. Senyo, 52 F.R.D. 34 (D.C. Pa. 1971). Appellants rely heavily on McDougall v. Dunn, 468 F. 2d 468 (4th Cir. 1972), as authority for their contention that the ruling of the discovery judge refusing discovery was reversible error. In that case, a plaintiff injured in an automobile accident sought to require the defendant to produce statements, and to permit the plaintiff to copy those statements which the defendant and a third occupant of the car made to an insurance adjuster.

The defendant objected to the demand on the basis that the statements were part of the defendant’s work product and argued that the demand was not supported by good cause. The lower court refused to require the defendant to comply with the plaintiff’s motion. The Fourth Circuit, in reversing, found that the insurance adjuster had obtained the statements more than two and a half years before the plaintiff made a claim, retained counsel, or filed suit. The court held that the statements had been obtained in the regular course of the adjuster’s duties and presumably were incorporated in the files of the company. ³⁰⁰ The Fourth Circuit, relying on Thomas Organ Co. v. Judranska Soblodna Plovidta, 54 F.R.D. 367, 372 (D.C. Ill. 1972), said: This trend which was followed in the framing of Rule 26(b)(3) compels the Court to conclude that any report or statement made by or to a party’s agent (other than to an attorney acting in the role of counsellor), which has not been requested by nor prepared for an attorney nor which otherwise reflects the employment of an attorney’s legal expertise must be conclusively presumed to have been made in the ordinary course of business and thus not within the purview of the limited privilege of new Rule 26(b)(3) and (b)(4).

If, in line with this construction of Rule 26(b)(3), it be assumed that the statements herein do not fall within the definition of materials, the production of which is controlled by such subdivision of the Rule, then the only applicable requirement for their production under the other subdivision of