Tempel v. Murphy

EYLER, JAMES R., J. This appeal arises out of a medical negligence lawsuit, instituted in the Circuit Court for Baltimore County, involving the death of 59-year old Thomas Murphy at St. Joseph Medical Center (“St. Joseph’s”). Survival and wrongful death claims were subsequently brought by Elena Murphy, individually and as the personal representative of the Estate of Thomas Murphy, and Caroline and Meghan Murphy (collectively “appellees”), against Melissa Fox, M.D.; her employer, Patient First of Maryland (“Patient First”); David Utzschneider, M.D.; his employer, St. Joseph’s; Richard Tempel, M.D.; and his employer, Osier Drive Emergency Physician Association. Prior to the jury trial, appellees settled with Dr. Fox, Dr. Utzschneider, and their employers at a private mediation. Dr. Tempel and his employer, appellants, did not settle with appellees.

After learning of the settlements, appellants moved to compel the production of the settlement documents. The motions were denied. On March 29, 2010, at the conclusion of an eleven-day trial, the jury awarded appellees damages totaling $1,440,000: $5,000 in funeral expenses; $235,000 in loss of household services; $600,000 for the loss of Mr. Murphy’s salary; $300,000 in noneconomic damages to Mrs. Murphy; $100,000 in non-economic damages to Meghan Murphy; $100,000 in non-economic damages to Caroline Murphy; and, $100,000 in damages to Mr. Murphy’s estate for pain and suffering. Subsequently, on April 12, 2010, appellants moved for judgment notwithstanding the verdict on the issue of Mr. Murphy’s lost salary, arguing that the $600,000 award was speculative and that appellees had failed to satisfy their burden of produc ⁴ tion in that regard.

The court denied the motion. This appeal followed. On appeal, appellants raise the following questions for our review: 1. Whether the trial court erred by refusing to allow appellants to inspect the amounts of the two settlement agreements prior to judgment? 2.

Whether the trial court erred by denying appellants’ motion for judgment notwithstanding the verdict as to the speculative nature of the appellees’ evidence of loss of financial support? Perceiving no error, we shall affirm. Factual Background The underlying background facts giving rise to the cause of action are not in dispute, nor are they necessary to our disposition. Appellees essentially accept appellants’ recitation of the background facts, thus, we shall quote the facts as presented by appellants, omitting footnotes and citations to the record.

We shall supplement and modify the facts where necessary. On Thursday, June 9, 2007, Mr. Murphy and his wife (a nurse) came to Patient First and saw Dr. Melissa Fox. Mr. Murphy complained of fever, chills, aches, pains, and generalized malaise of two days in duration. Following a physical exam and laboratory testing, Dr. Fox’s impression was that Mr. Fox had the flu, and possibly Lyme disease.

She took a Lyme titer, gave him 2 liters of fluids, prescribed him doxycycline, and instructed him to return to Patient First as needed. Mr. Murphy and his wife presented to [St. Joseph’s] at approximately 5:30 p.m. on June 10, 2007. Mr. Murphy was triaged at 5:36 p.m., placed in a room by 5:55 p.m., and between 6:15 p.m. and 6:30 p.m., he was seen by Dr. Tempel. His chief complaint at that time was trouble breathing.

His EKG and heart enzymes were normal, which indicated that his troubles were probably not cardiac ⁵ in origin. Dr. Tempel ordered a CT scan of Mr. Murphy’s chest, 1 liter of fluid, and laboratory work. The labs came back at 7:10 p.m. and were suggestive of an infection. At 7:20 p.m., Dr. Tempel ordered Levaquin, a broad-spectrum antibiotic.

Mr. Murphy was in the CT scan until 7:45 p.m., so he received the Levaquin at approximately 8:00 p.m. Dr. Tempel reviewed Mr. Murphy’s CT scan and believed that he saw a suspicious area in Mr. Murphy’s lung. Given Mr. Murphy’s trouble breathing, the results of the CT scan, and the lab results, Dr. Tempel believed Mr. Murphy was suffering from pneumonia and dehydration. At 8:40 p.m., Dr. Tempel ordered that Mr. Murphy be admitted to [St. Joseph’s].

Dr. Tempel, as the ER physician, could not actually admit Mr. Murphy to the hospital, so he paged Dr. Utzschneider, the admitting physician on call, at 8:53 p.m. Dr. Utzschneider phoned in his admitting orders from home at 9:10 p.m. He never came in to see Mr. Murphy. Instead, he asked the hospitalist to perform the admitting history and physical.

He also reduced the amount of fluids that Dr. Tempel had ordered for Mr. Murphy. For some reason that the parties were never able to determine, Mr. Murphy was not actually transferred from the ER to the floor until approximately midnight. The hospitalist saw Mr. Murphy about ten minutes later. By 3:00 a.m., Mr. Murphy’s condition had deteriorated.

His blood pressure began to fall and he developed abdominal distension. At 10:00 a.m. and again at noon on June 11, 2007, he suffered cardiac arrests, but was successfully resuscitated. At 2:00 p.m., he was taken to surgery in an attempt to discover whether there was an abdominal source of the infection. Mr. Murphy arrested on the operating room table and died.

To this day, no one has been able to identify the cause of Mr. Murphy’s infection. After learning that Dr. Fox and Patient First had settled with appellees, appellants’ counsel requested by letter a copy ⁶ of the settlement agreement and release, noting that these documents had been requested in discovery and that they would “significantly impact[ ] upon [appellants’] defense strategy in this case.” Appellants also suggested that they were “entitled to determine if the release is a joint tort feasor type release,” and were “entitled to know the amount that Patient First paid in settlement as it will also dramatically impact upon defense strategies in this case.” Counsel for Dr. Fox and Patient First responded that she would not provide copies of the requested documents, but represented that the “executed Release is a standard non-Sw[ ]igert Joint Tortfeasor Release. 1 Therefore, you need not prove your case against Dr. Fox at trial to receive a reduction.” Counsel continued that “the amount of settlement with Dr. Fox is information which you are not entitled to at this time and which does not effect your trial strategy.... The only time the amount of settlement would become relevant as it relates to your client would be after a verdict against your client—so you would be able to ask the court to enter judgment for the appropriate amount (with the appropriate reduction) against your client.” Dissatisfied with counsel’s response, on February 22, 2010, appellants filed a “Motion for Court Order Compelling Plaintiffs to Produce the Settlement Agreement/Release Taken by Melissa Fox, M.D. and Patient First,” along with a request for a hearing. Subsequently, after learning that Dr. Utzschneider and St. Joseph’s had also settled with appellees, appellants’ counsel again requested by letter a copy of that settlement agreement and release.

Apparently receiving no response, on March 5, 2010, appellants filed a “supplemental” motion to compel with respect to Dr. Utzschneider and St. Joseph’s. ⁷ On March 8, 2010, appellees filed an opposition to appellants’ motion to compel with respect to Dr. Fox and Patient First. The court did not rule on any of the foregoing prior to trial, which began on March 15, 2010. On the second day of trial, March 17, 2010, the court held a hearing on appellants’ motions. Appellants argued that there was a “real need” for the non-settling defendants to know the “status of a settling defendant and what type of release it is, whether a joint tortfeasor release where there is a pro rata or pro tanto reduction,” and that they should not be required to accept appellees representation as to what type of release it was.

Appellants’ counsel suggested that the language of the release would “influence the way [he] ... tried the case,” and that appellants were also entitled to know “what the amounts are.” Appellants submitted that there was “nothing more relevant to us than the amount,” and that not knowing the amount impacted their ability to negotiate a settlement “intelligently.” In that vein, appellants asserted that if they knew “how much has been paid, and it’s a small amount, [they] may change [their] attack ... and there may be some motivation to pay a little bit or some amount to settle this case; on the other hand, if a lot has been paid, then [they will] go forward with trial, but [they] don’t know,” in the absence of the disclosure of the settlement amounts. Appellees’ counsel argued that they had made a demand, and that if appellants “want[ed] to find out how much [appellees were] willing to accept and [are] willing to put money on the table, [appellees would] certainly discuss that with them.” Counsel continued that if they were forced to reveal the confidential settlement amounts, it “would affect [their] settlement strategy as well,” “essentially forc[ing] [them] to reveal all of [their] cards ....,” even though the settlements were not relevant. The court “absolutely agree[d]” that appellants were entitled to know what type of release was negotiated so that they would know how to proceed with trial. After an unrecorded ⁸ bench conference, the court granted appellants’ motions as to the language of the releases, so that they could “satisfy themselves as to whether it is, in fact, a joint tort feasor release or a Swigert ... type of release,” but denied them as to the monetary amount in the releases.

Thus, appellees were only required to provide redacted copies of the releases. Appellants were not provided with the specific dollar amounts of the settlements until after the conclusion of trial, at which point appellants learned that Dr. Utzschneider and St. Joseph’s had settled for $450,000, and Dr. Fox and Patient First had settled for $200,000. Both of the releases contained confidentiality provisions, precluding either party to the agreement from disclosing the settlement amounts with anyone. On March 22, 2010, appellees called Dr. Tom Borzilleri, who was qualified as an “economic expert,” to testify to the “estimated losses in the case.” Dr. Borzilleri testified that, based on his calculations, appellees “loss of support,” i.e., the income that Mr. Murphy would have produced minus his personal spending, was $525,648.00.

Dr. Borzilleri explained that he calculated that number by using Mr. Murphy’s 2006 W-2 form, which reported an income of $82,002.00 per year, and the Social Security Administrations (“SSA”) “growth rates,” which are “in the range of 3% per year.” Dr. Borzilleri testified that he relied on the SSA’s growth rates because it is an “objective forecast” of how much an individuals salary will increase from year-to-year. He then assumed that Mr. Murphy would work until age 66 or 67, using the “Work Life Expectancy” calculation. He explained: I stopped the calculation at two points, age 66 and age 67. Sixty-two is his, is the age at which he could have gotten full Social Security Retirement benefits.

You can retire earlier, but you take quite a hit when you do that. You can also work later and get an 8 or 9% increase in the benefits to go beyond that age 66. But I stopped one calculation at 66. The other calculation is stopped at something called, Work Life Expectancy.

Its basically a statistical estimate of how long someone of his age and education and background would have been expected to work. So, about a years ⁹ difference. That that statistic says to age 67. So, I got these earnings figures [ 2 ] that are basically saying, here’s the kind of money he would have made from the day he died on out to these two stopping points.

Based on The United States Pension Benefit Guarantee Corporation’s “Life Expectancy Table,” Dr. Borzilleri determined that Mr. Murphy’s statistical life expectancy was 23 years. Appellants’ counsel did not object to any of the foregoing. On cross-examination, Dr. Borzilleri admitted that he did not interview Mrs. Murphy or her attorneys, and admitted that he did not read her deposition in an effort to determine at what age Mr. Murphy planned to retire. He admitted that approximately 50% of “all white men who are 59 years of age in Maryland as of 2007,” would live for 23 more years.

He reiterated that the Life Expectancy Table provides a “statistical estimate,” and reiterated that he used the SSA tables to estimate the income that Mr. Murphy would have made had he retired at 66 or 67. Dr. Borzilleri explained that he could not know at what age Mr. Murphy would retire, so he had to rely on the statistics. When asked how much the loss of income would have been if Mr. Murphy retired at 62, Dr. Borzilleri testified that if Mr. Murphy had retired at that age, he would have only received 70% of his SSA benefits, which would have resulted in a maximum award for loss of support of $225,609.00. Had he retired at age 63, the maximum award for loss of support would have been $311,997.00.

Dr. Borzilleri agreed that he had “no idea what [Mr. Murphy’s] intentions were” with respect to retirement. The following colloquy ensued. ¹⁰ DR. BORZILLERI: ... [I] ... never spoke to him prior to his death. All I can do is use the statistical information I have.

And that says on average we should be looking at statistically 67. At the other hand, he could get full benefits at 66. And that’s a, that’s not a bad age either, but that’s the best I can do. APPELLANTS’ COUNSEL: He may have been a good saver and he could have retired at 62, correct?

DR. BORZILLERI: That’s true. And he could have worked to age 70 and gotten an 8% bump every year after age 67. I can’t go beyond what I’ve got.

APPELLANTS’ COUNSEL: Right. And you, so, you don’t know whether he was going to retire at 61, 62, 68, 64, all the way up to 70? Just, you’re giving us some numbers for the jury to consider, correct? DR.

BORZILLERI: That’s correct. Statistically we’ve got a number and we’ve got the Social Security number. And if they believe its going to be shorter then they should adjust it down. APPELLANTS’ COUNSEL: And I seem to recall having cross examined a couple Economists in the past.

Isn’t there a study from The Social Security Administration that supports that a majority of workers retire in their 63 age, 63 year age range? DR. BORZILLERI: 62 and 65 have always been historical ages for retirement. There have been some changes though.

Again, Social Security pushed up the normal retirement age. And that tends to move people up a bit. So, 63 probably if you’re going across the entire country with workers of all skill levels and all income levels that would probably be a reasonable number, age 63. APPELLANTS’ COUNSEL: All right.

And so, that would be $311,997.00? DR. BORZILLERI: That’s correct. But again, below— APPELLANTS’ COUNSEL: Now— DR.

BORZILLERI:—what the work life expectancy data tells us. ¹¹ Mrs. Murphy testified that Mr. Murphy did not have any chronic health conditions, and that he had lost about 35 pounds in the few years preceding his death. She testified that Mr. Murphy experienced anxiety on Sunday nights or Monday mornings “about what was going to happen that week at his job because he took it very seriously.” 3 Caroline Murphy testified that she “never knew anybody ... that liked their job more than [Mr. Murphy],” and that “he really took seriously ... being a good boss.” Wayne Kennard, Mr. Murphy’s good friend, testified that Mr. Murphy took his “family responsibilities” and his job “very seriously.” Mr. Kennard stated that Mr. Murphy “was an exceptional father in the sense that he provided for his children and his wife,” and that his “greatest concern was to make sure that they had all the tools and education to make it in the world and be successful.” In that regard, Mr. Murphy was “always concerned about making sure he saved enough money for [his daughters] college education, they got into the right career fields and into the proper schools.” Following the jury’s verdict, appellants moved for judgment notwithstanding the verdict on the issue of lost support. In the memorandum in support of their motion, appellants argued that they were entitled to judgment because there was “no evidence upon which a reasonable jury could have concluded that, more likely than not, Mr. Murphy would have worked until age 66 and/or 67 so as to sustain” the $600,000.00 award. Appellants asserted that [ajlthough Mrs. Murphy testified at trial, she did not provide any insight as to her husband’s plans for retirement, and there was no other testimony or evidence tending to ¹² establish that Mr. Murphy would have worked continuously until 66, 67, or some other age.

To the contrary, there was testimony that Mr. Murphy suffered acute anxiety on Sunday evenings as he anticipated the impending work week. Likewise, on cross-exam, Dr. Borzilleri admitted that he could not say whether Mr. Murphy would retire at 61, 62, or even whether he would have worked up until he was 70. This revealing testimony establishes that Dr. Borzilleri was simply guessing when he testified that Mr. Murphy would have continued to work until he was 66 or 67. Indeed, Dr. Borzilleri did not express this opinion to a reasonable degree of probability and