Meyer v. McDonnell

Thompson, J., delivered the opinion of the Court. Alvin Meyer, hereinafter called appellant, filed suit against Edmond J. McDonnell, M.D., the appellee, in Baltimore City Court, alleging that as the result of an orthopedic operation upon his back he suffered sexual impotency and a lack of bowel and bladder control. We are obliged to reverse the judgment rendered in favor of Dr. McDonnell because the trial judge instructed the jury that evidence of Dr. McDonnell’s tampering with the appellant’s witnesses was admissible only for the purpose of raising an inference that the testimony of the witnesses would be unfavorable to Dr. McDonnell, and not as substantive evidence to support Mr. Meyer’s claim. Although the trial judge was mild in his characterization of Dr. McDonnell’s conduct during the trial, in our view that conduct was outrageous. 1 Whatever merit the medical profession may have in its current outcry against malpractice suits, the remedy does not lie in polluting the streams of justice by tampering with witnesses, The record shows that on Friday, May 13,1977, the fourth day of trial, appellee directed his secretary to call Dr. Robert P. Keyser, of Miami, Florida, an acquaintance and a fellow member of the American Scoliosis Society, and tell him that ⁵²⁶ Dr. Robert B. Nystrom was scheduled to testify against appellee and that his testimony would be transcribed and disseminated to Dr. Nystrom’s local medical society in Miami and to the American Academy of Orthopedic Surgeons.

The secretary immediately carried out such a call, and Dr. Keyser replied that he wanted to relay this information to Dr. Nystrom. This reaction was what appellee had expected and intended. Appellee’s secretary then requested that Dr. Keyser do so before Dr. Nystrom testified, and gave him the phone numbers of both trial counsels and the trial judge. Just before noon on that same day, Dr. Keyser telephoned Dr. Nystrom, who was in the City Bar Library awaiting commencement of his testimony.

Dr. Keyser, who was a mentor of Dr. Nystrom and a man whom Dr. Nystrom admired and respected, related the information about dissemination of testimony, and, with the preface that “this is not a threat, but,” admonished him to tread lightly. In retrospect, Dr. Keyser considers his involvement inadvisable. Dr. Nystrom was intimidated by the communication and felt that he would be unable to testify with a normal degree of candor. The trial judge, in ruling that testimony of the transaction was admissible and that a mistrial would be declared in the event that plaintiff could not promptly locate another standard of care witness, found specifically that the message was clearly intimidating and intended by appellee to be so. 2 ⁵²⁷ On Thursday, May 12,1977, appellee telephoned his friend and colleague, Dr. William H. M. Finney, a Baltimore neurosurgeon.

He asked Dr. Finney to call Dr. Thomas H. Langfitt, former Chief of Neurosurgery at the University of Pennsylvania, and a long-time friend of Dr. Finney, and advise him that Dr. Francis J. Pizzi was scheduled to testify against appellee and that his testimony would be transcribed and disseminated to his local medical society in Trenton, New Jersey. Dr. Finney made such a call that same evening, advising Dr. Langfitt that Dr. Pizzi was in the process of testifying against appellee, that the testimony would be disseminated, and that it might not be a particularly good thing for Dr. Pizzi to testify in an out of state medical malpractice trial with an impending appearance before the American Board of Neurological Surgery for the oral portion of his certification examinations. 3 Dr. Langfitt attempted to call Dr. Pizzi at the outset of his testimony on May 12 or 13, but was unsuccessful. On Saturday morning, May 14, he reached Dr. Pizzi by telephone at his home and relayed the information conveyed by Dr. Finney, including the admonition as to the impending oral Board examinations. Dr. Langfitt was the person responsible for bringing Dr. Pizzi into neurosurgery.

He also trained Dr. Pizzi who characterized him as “very important to me,” and a person whom he admired and respected. Dr. Pizzi expressed to Dr. Langfitt that he was fearful that he might now be blackballed by the Board as a result of false information ⁵²⁸ which may have been spread about him as a “violator of the conspiracy of silence,” but that his evaluation of the case was objectively correct and that he felt committed to give an honest opinion in testimony. Dr. Langfitt told him to let his conscience be his guide with regard to continuing his testimony, but that they would have to “sit down and talk about a few things afterward.” This communication had the calculated effect on Dr. Pizzi. He testified that as a result of his conversation with Dr. Langfitt he was so upset that he was forced to cancel his plans to attend the commemoration of his father’s fifty years in the practice of medicine.

With respect to the evidence adduced concerning appellee’s tampering with the witnesses, the trial judge included in his instructions the following: “Now, if you find that either the plaintiff or the defendant or both tried to intimidate any of the other witnesses, an inference would arise that the testimony of such witness would be unfavorable to the case of the one who so tried to intimidate, [ 4 ] However, such inference, if indeed you do find one to exist, does not amount to substantive proof and it can’t take the place of proof of a fact necessary to the other party’s case.” [ 5 ] Appellant argues, based on cases collected in Annot., 38 A.L.R. 595 (1925), that the trial judge should have instructed the jury that such evidence could be considered by them “as tending to show that defendant is unwilling to rely on the truth of his cause, or is conscious that his case is weak or unjust, or that his own evidence is dishonest” and that the trial judge erred in merely instructing the jury “that the ⁵²⁹ testimony of such witness would be unfavorable to the case of the one who so tried to intimidate.” He also argues, based on cases cited in 29 Am. Jur.2d § 277 and § 627, that the instruction should include advice to the jury that such an attempt to intimidate or influence a witness is an admission by conduct and constitutes affirmative evidence. Appellee argues that an attempt to keep a witness from testifying cannot be considered as substantive evidence. He particularly relies on Maszczenski v. Myers, 212 Md. 346 , 129 A. 2d 109 (1957), in which the Court said: “Although an inference arises from the suppression of evidence by a litigant that this evidence would be unfavorable to his cause, Love v. Dilley, 64 Md. 238 , 1 A. 59 , 4 A. 290 ; Love v. Dilley, 64 Md. 610 , 6 A. 168 ; 20 Am.

Jur., Evidence, Sec. 185, it is well settled that this inference does not amount to substantive proof and cannot take the place of proof of a fact necessary to the other party’s case. Eldridge v. Terry & Tench Co., 145 App. Div. 560 , 129 N.Y.S. 865 ; Rosenthal v. Ostrow, 287 Pa. 87 , 134 A. 384 ; Stocker v. Boston & M.R.R., 84 N. H. 377, 151 A. 457 , 70 A.L.R. 1320 ; Northern Ins. Co. of N. Y. v. Fischer (D. C. Mun. Ct. App.), 103 A.2d 581 ; F.R. Patch Mfg.

Co. v. Protection Lodge, No. 215, I.A.M., 77 Vt. 294 , 60 A. 74 ; The Luckenboch (D.C. Va.), 144 F. 980 ; Welsh v. Gibbons, 211 S. C. 516, 46 S.E.2d 147, 151 ; Wigmore on Evidence, 3rd ed., Vol. II, Sec. 290, p. 179, and ibid., Vol. IX, Sec. 2524, p. 441.” Id. at 355. We have examined carefully the opinion of the Court of Appeals in Maszczenski , and the authorities cited therein, and find that it does not control the issue in this case.

The focus of discussion in Maszczenski , and in the cases and text material upon which the Court there relied, was the nature and effect of the inference to be drawn when important direct evidence is not produced. In such cases it is generally held that an inference may be drawn that the missing evidence would have been unfavorable to the party who could have produced it. The references in Maszczenski to Professor Wigmore’s treatise on evidence are to sections dealing with ⁵³⁰ the nature and effect of the inferences to be drawn from missing evidence. In 9 Wigmore on Evidence § 2524 (3d ed. 1940), it is stated: “The opponent’s spoliation or suppression of evidential facts (ante, § 278), and particularly of a document (ante, § 291), has always been conceded to be a circumstance against him, and in the case of a document, to be some evidence that its contents are as alleged by the first party.

But that a rule of presumption can be predicated is doubtful.” The discussion in 2 Wigmore, supra, § 290, also cited in Maszczenski , deals with the distinction between a mere failure to produce specific evidence and fraudulent conduct aimed at suppressing or spoliating evidence. There also appears a discussion of the relationship between permissible inferences drawn from missing evidence and the burden of persuading the jury. It is pointed out that the party who does not bear the burden of proof need not produce any evidence at all, at least until his opponent has produced sufficient affirmative evidence to shift the burden of going forward with the evidence. This discussion provides a clear basis for the holding in Maszczenski , and many other cases, that no inferences may be drawn from a defendant’s failure to produce evidence until the plaintiff has made out at least a prima facie case.

See, e.g., Conlin v. Greyhound Lines, Inc., R. I., 384 A. 2d 1057, 1060 (1978); Lapierre v. Greenwood, 85 R. I. 484, 133 A. 2d 126 (1957). A more recent decision of the Court of Appeals reaffirms the holding in Maszczenski In Larsen v. Romeo, 254 Md. 220 , 255 A. 2d 387 (1969), a question arose concerning the nature and effect of an inference to be drawn concerning a missing piece of physical evidence. The only relevant point, for our purposes, was whether the disposal of an air hose by the defendant, where he claimed that his air brakes had failed unexpectedly, would raise an inference sufficient to discredit his testimony. The Court said: “As a general rule, an inference arises from the suppression or destruction of evidence by a litigant ⁵³¹ that such evidence would be unfavorable to his case.

However, this inference does not amount to substantive proof and can not take the place of proof of a fact necessary to the other party’s case. Maszczenski v. Myers, 212 Md. 346 , 129 A. 2d 109 . Romeo testified that he or a mechanic took a piece of hose off his tractor, that he showed the