Lai v. Sagle

HARRELL, Judge. I Courts often are reluctant to declare brightline rules or standards. There are good reasons for this usually. In this case, we overcome that reluctance.

On 27 August 1999, Respondent, Betty Sagle, individually and as personal representative of the estate of her mother, filed a medical malpractice action in the Circuit Court for Washington County. The defendants were Albert Lai, M.D., and Washington County Hospital Association. Washington County Hospital Association penultimately was dismissed as a defendant, and the case was tried against Dr. Lai only. The jury returned a verdict in the amount of $131,500 in favor of Respondent in her capacity as personal representative. ³⁰⁹ Dr. Lai timely noted an appeal to the Court of Special Appeals, raising a single question: Did the trial court abuse its discretion by not granting defendant’s motion for mistrial after plaintiffs counsel remarked during opening statement that defendant had been sued five times for malpractice in another state?

In an unreported opinion, the Court of Special Appeals, by a divided panel, affirmed the judgment of the Circuit Court. On 13 August 2002, Petitioner here, Dr. Lai, sought a writ of certiorari from this Court, which petition was granted. Lai v. Sagle, 371 Md. 261 , 808 A.2d 806 (2002). 1 II. While the allegations of the claimed malpractice are complex, the facts relevant to the issue before us are not.

At some point in time-the exact date of which was a matter of dispute between the parties-the gallbladder of Thelma Giffin, then age 88, became inflamed acutely. Ms. Giffin was taken to the Washington (County) Hospital Center on 26 November 1996, where she came under the care of Dr. Lai. On 3 December 1996, Dr. Lai removed Ms. Giffin’s gallbladder, which was found to be gangrenous. Two weeks later, Ms. Giffin died as a result of multi-system organ failure.

At the inception of the jury trial, the attorney for Dr. Lai objected to a statement (not directly involving the issue before us) made during Sagle’s counsel’s opening statement. 2 A ³¹⁰ bench conference followed. During that bench conference, another issue arose as to whether mention could be made by Sagle’s counsel of prior malpractice suits against Dr. Lai. The trial judge stated: Well, I will deal with it at some time during the lunch recess because we’re not going to get this kind of testimony until clearly after lunch, probably even into tomorrow. Why don’t you pull the requisite parts of the deposition?

I’ll look at it. Sagle’s counsel said “okay” and resumed her opening statement. [Sagle’s Counsel]: [ 3 ] Dr. Lai moved to Hagerstown in August of 1994 at the invitation of his friend, Dr. Su. He never looked for any other opportunities for other practice environments. By the way, when Dr. Lai was practicing in Michigan for eight years, he was sued five times for malpractice. [Lai’s Counsel]: Objection. [The Court]: Sustained. [Sagle’s Counsel]: From August ’94 through No ... [The Court]: The jury is instructed that opening statements are not evidence and it’s only a matter or manner in which counsel can describe to the jury what he or she intends to ³¹¹ prove.

It’s not in evidence at this point and is not to be considered at this point. We have not taken evidence. [Lai’s Counsel]: Your Honor, may I approach? [The Court]: All right. [Lai’s Counsel]: Your Honor, I’m going to move for a mistrial at this point. I think that she’s polluted the waters and she’s done it deliberately. I would have ...

I would have moved this in limine had I know that she was going to bring this up in opening statement. She’s alluded to two improper things. One, she clearly just went right on the record and polluted the waters in this case. There is not way that anything can be redeemed about it at this point.

I’m going to move for a mistrial. [Sagle’s Counsel]: Your Honor, I can absolutely, positively do this when Dr. Lai is up on the stand. That is part of my cross-examination. I can absolutely bring up every single time he’s been sued for malpractice and what the outcome of it was, not getting into particulars, but can (inaudible). [Lai’s Counsel] made no objections [at deposition] whatsoever when I was questioning him about this. And in fact, I’ve got to tell you Dr. Lai volunteered this information about the infection control stuff at the hospital.

I didn’t ask it. He volunteered. [Lai’s Counsel]: Has nothing to do with the malpractice. [The Court] How does ... How are prior malpractice actions relevant to this case? [Sagle’s Counsel]: It shows that he has this ongoing phenomena of negligent care and treatment. [The Court]: My recollection, I’ll look at the rules, my recollection is that you have to show habit, modus operandi, or some other regular course. Other ... other actions are not admissible. [Sagle’s Counsel]: What could be more regular than being sued five times in the course of an eight-year practice in Battle Creek, Michigan? [The Court]: I don’t think it’s admissible.

On the other hand, I will look at the rules, but why are we getting into all ³¹² of these things that are potentially admissible or inadmissible in opening? Why is this necessary? [Sagle’s Counsel]: I can go right on through your Honor. [The Court]: All right. Motion for mistrial is denied. I don’t think it’s polluted.

I told the jury that the ... they’re not to consider it at this point. [Lai’s Counsel]: At this point, I mean at this point, their first witness is going to be [Dr.] Udekwu. If she’s taking this approach that she’s going to ask ... I am of the opinion and always of the belief that prior malpractice cases are not admissible and are not ... have no relevance and no basis in the case. Udekwu has four medical malpractice cases that have been filed against him.

Am I then permitted to ask Dr. Udekwu about all these malpractice cases? It would be totally irrelevant and would get into the low ... a trial of the lowest order. And I think that she’s already ... she has already done. She’s planted the seed that caused enough trouble and the problem is that now we have to be on the defensive about explaining why these ...

Some of these were totally frivolous malpractice cases. [The Court]: No you don’t. No you don’t. You can trust the jury to do its job. And its job is to consider the evidence and I’m going to remind them of that at various times through the proceedings, that evidence is only what they hear from the witness stand.

And clearly if it does not come in throughout the trial, you can certainly address that in closing argument to the jury and say, “By the way, [Respondent’s counsel] told you ... did she prove it?” The question is whether she has or hasn’t. [Lai’s Counsel]: My objection is still ... [The Court]: Overruled. The trial continued. On three subsequent occasions the trial judge instructed the jury generally, but without specific relation to Sagle’s counsel’s reference in her opening statement to Dr. Lai’s prior alleged malpractice experiences, that its decision must be based upon the evidence presented in the case and that the statements and arguments of counsel were ³¹³ not evidence. The jury returned its verdict on 5 October 2000, finding that Dr. Lai was negligent in his treatment of Mrs. Giffin and awarded $131,500 in damages.

The majority opinion of the Court of Special Appeals observed: An attorney should not mention in opening statement facts that counsel knows are irrelevant and hence inadmissible. And, the fact that Dr. Lai had been sued five times previously had no relevance, whatsoever, to the issue of whether he was guilty of negligence in his treatment of Ms. Giffin. The fact that a doctor is sued for malpractice obviously does not demonstrate that he was ever guilty of malpractice. Counsel’s remark had at least the potential to poison the minds of the jurors against the defendant.

We concur with appellant that plaintiffs’ counsel, in the opening statement, deliberately and wrongfully attempted to prejudice the jury against Dr. Lai in [her] opening statement. Nevertheless, the majority of the intermediate appellate court panel held that the trial judge did not abuse his discretion in denying Dr. Lai’s motion for a mistrial, holding that the curative instructions given by the trial judge were sufficient to cure the prejudice. The dissent, alluding to Md. Rule 5-404(b)(“Evidence of other ... wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith.”), 4 reasoned that a mistrial was warranted under the facts of this case, pointing out: ³¹⁴ instruction designed to cure the prejudice arising from the facts that improperly have been disclosed to the jury, we must determine “ ‘whether the evidence was so prejudicial that it denied the [litigant] a fair trial;’ that is, whether ‘the damage in the form of prejudice to the [litigant] transcended the curative effect of the instruction.’ ” Id. at 19, 622 A.2d 103 (quoting Rainville v. State, 328 Md. 398, 408 , 614 A.2d 949 (1992), in turn quoting Kosmas v. State, 316 Md. 587, 594 , 560 A.2d 1137 (1989)). In my opinion, the damage to appellant from appellee’s counsel’s announcing to the jury in opening statement that appellant had been sued for malpractice five times transcended the curative effect of the trial court’s instructions on this point. ³¹³ Occasionally cases arise in which a trial court’s denial of a motion for mistrial constitutes an abuse of discretion.

Med. Mut. Liab. Ins.

Soc’y of Maryland v. Evans, 330 Md. 1, 4 , 622 A.2d 103 (1993). In my view, this is such a case. When a motion for mistrial is denied, and the trial judge gives an ³¹⁴ Ill Before considering the issue presented in the certiorari petition, we first address Respondent’s Motion to Dismiss, filed as part of her brief. Respondent contends that Petitioner waived any right to challenge in an appellate forum Respondent’s Counsel’s opening remarks by failing to renew his motion for mistrial on any of the three later occasions that the trial judge reminded the jury generally that opening and closing remarks and statements or arguments of counsel were not evidence, nor did Petitioner renew his objection or motion at the close of all of the evidence.

Respondent argues that these failures constitute a waiver of the present appellate issue, and asks us to dismiss this case. We shall deny the motion. Maryland Rule 3-517 states, in relevant part: (c) Objections to other rulings or orders. For purposes of review by the trial court or on appeal of any other ruling or order, it is sufficient that a party, at the time the ruling or order is made or sought, makes known to the court the action that the party desires the court to take or the objection to the action of the court.

The grounds for the objection need not be stated unless these rules expressly provide otherwise or the court so directs. If a party has no opportunity to object to a ruling or order at the time it is ³¹⁵ made, the absence of an objection at that time does not constitute a waiver of the objection. (d) Formal exceptions unnecessary. A formal exception to a ruling or order of the court is not necessary.(emphasis added).

Petitioner here requested a mistrial after noting his objection to Respondent’s counsel’s pertinent opening statement remark, and, most importantly, persisted in his objection despite the trial court’s proposed remedy of giving a series of supposed curative instructions. He continued to object until cut-off by the trial judge, signaling the end of discussion on that issue at this trial. Petitioner did all that was required, under the circumstances, to preserve the issue for our consideration. Hill v. State, 355 Md. 206, 218-26 , 734 A.2d 199, 206-210 (1999) (“When, as here, however, (1) the motion is not unduly delayed and timeliness is not raised as a defense in the trial court, (2) the trial court does not consider timeliness, even as an alternative ground, but denies the motion on the ground that no further relief is called for, (3) no prejudice to the court or either party is indicated, and (4) the appellate court determines that the complaint underlying the motion is valid, a complaint that the motion was improperly denied should be addressed on appeal and not found unpreserved.”)(emphasis in original); Farley v. Allstate Ins.

Co., 355 Md. 34, 57-58 , 733 A.2d 1014, 1026 (1999) (finding that to preserve an issue for appeal, counsel is required to object and request specific relief); Lattisaw v. State, 329 Md. 339, 343-44 , 619 A.2d 548, 550 (1993)(counsel’s disagreement with the trial court’s view of an objection was sufficient to make known counsel’s “objection to action of the court” in order to preserve the issue for appeal). See Anderson v. Litzenberg, 115 Md. App. 549, 568-70 , 694 A.2d 150, 159-60 (1997) (discussing at length the requirements for objections and preserving issues for appeal). IV We now turn to Petitioner’s assertion that the trial court abused its discretion by failing to grant Petitioner’s motion for ³¹⁶ a mistrial after the reference to the prior malpractice actions against Petitioner was published by Respondent’s counsel to the jury during her opening statement. Rule 5-404 (“Character evidence not admissible to prove conduct; exceptions; other crimes”)(b) of Title 5 (“Evidence”), Chapter 400 (“Relevancy And Its Limits”) of the Maryland Rules states, in relevant part: (b) Other crimes, wrongs, or acts.

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake or accident. As yet, it has not been determined whether Rule 5-404(b) applies to civil cases. This issue was argued previously to this Court in Lewin Realty III, Inc. v. Brooks, 138 Md.App. 244 , 771 A.2d 446 (2001), cert, granted, Brooks v. Lewin Realty III, Inc., 365 Md. 266 , 778 A.2d 382 (2001), which case has not been decided.

We need not resolve this question here. To the extent that 5-404(b) may apply, such a determination merely would reinforce our opinion infra. To the extent that it may not apply, it is of no material moment to the present case, as Rules 5-402 5 and/or 5-403 6 certainly do. Petitioner’s argument, in sum, is that Respondent’s act of alerting the jury to Dr. Lai’s involvement as a defendant in prior malpractice suits was so prejudicial that Dr. Lai was ³¹⁷ denied any opportunity for a fair trial, and therefore the trial court abused its discretion by failing to grant Petitioner’s motion for a mistrial.

In Med. Mut. Liab. Ins.

Soc’y of Maryland v. Evans, 330 Md. 1, 19-24 , 622 A.2d 103, 112-114 (1993)(some internal citations omitted), we reviewed generally the proper analysis for a motion for mistrial generally: Whether to order a mistrial rests in the discretion of the trial judge, and appellate review of the denial of the motion is limited to whether there has been an abuse of discretion. Where the motion is denied and the trial judge gives a curative instruction, we must determine “ ‘whether the evidence was so prejudicial that it denied the defendant a fair trial;’ that is, whether ‘the damage in the form of prejudice to the defendant transcended the curative effect of the instruction.’ ” Judge Cole, writing for this Court in State v. Cox, 298 Md. 173 , 468 A.2d 319 (1983), explained that “[w]e have allowed [inquiry about prior bad acts] to be conducted when the trial judge is satisfied that there is a reasonable basis for the question, that the primary purpose of the inquiry is not to harass or embarrass the witness, and that there is little likelihood of obscuring the issue on trial.” Id. at 179 , 468 A.2d at 322 . To permit counsel to obtain a ruling on whether proposed proof will be admitted, and in order to avoid mistrials, contemporary practice recognizes the motion in limine. See Prout v. State, 311 Md. 348, 356 , 535 A.2d 445, 449 (1988) (“[T]he real purpose of a motion in limine is to give the trial judge notice of the movant’s position so as to avoid the introduction of damaging evidence which may irretrievably infect the fairness of the trial.”)....

No one wants to waste the investment of parties, witnesses, counsel, jurors, and trial court by having the proceedings result in a mistrial. The way to avoid that result is the motion in limine, particularly where, as here, an earlier trial had aborted because of improper questioning by the same attorney. ³¹⁸ It has been observed that the primary purpose of an opening statement is to apprise, with reasonable succinctness, the trier of fact of the questions involved in the case it is about to hear, and what the parties expect to prove, so as to prepare the trier of fact for the evidence to be adduced. Clarke v. State, 238 Md. 11,19 , 207 A.2d 456, 460 (1965). Where a trial has progressed only so far as opening statements when a prejudicial error occurs, the waste of “the investment of parties, witnesses, counsel, jurors, and trial court by having the proceedings result in a mistrial” is minimal when compared with the possible taint on the overall proceedings.

Therefore, if remarks made by an attorney in an opening statement include “facts” that plainly are inadmissible and highly prejudicial to another party, a mistrial ordinarily would be one of the principal remedies considered, upon motion by the adversely affected party. 7 y We must determine whether, in plaintiffs opening statement in a medical malpractice trial, bringing to the attention ³¹⁹ of the jury incidences of prior malpractice actions against the defendant doctor is error. If it is error, flowing from such a conclusion is the related question of whether the prejudice worked thereby requires the grant of a mistrial, upon timely motion, or whether it may be cured by an appropriate instruction or series of instructions. To resolve these questions, we shall employ the standards associated with the doctrine of relevance. Those standards are stated succinctly in Myers v. Celotex Corp., 88 Md.App. 442, 594 A.2d 1248 (1991), cert, denied, Fibreboard Corp. v. Myers, 325 Md. 249 , 600 A.2d 418 (1992), to wit: Evidence, to be admissible, must be both relevant and material.

Evidence is material if it tends to establish a proposition that has legal significance to the litigation; it is relevant if it is sufficiently probative of a proposition that, if established, would have legal significance to the litigation. Evidence is relevant, therefore, if it has any tendency to make