Tuer v. McDonald

FISCHER, Judge. Mary C. Tuer, both individually and as the personal representative of the estate of her husband, Eugene E. Tuer, appeals from an order by the Circuit Court for Baltimore County that entered judgment for Garth R. McDonald, M.D., Robert K. Brawley, M.D., and Brawley, McDonald & Lincoln, M.D., P.A. (appellees). Mrs. Tuer filed a four count complaint against appellees in the circuit court following the death of her husband.

After the jury found for appellees, the circuit court denied Mrs. Tuer’s motion for a new trial, without a hearing. Mrs. Tuer presents three questions for our review, which we have reworded as follows: I. Did the circuit court err by excluding evidence that appellees, subsequent to Mr. Tuer’s death, changed their procedure for administering the drug Heparin to patients awaiting cardiac surgery?

II

Did the circuit court err by excluding for the purposes of impeaching Dr. McDonald the medical records of another cardiac patient seen at St. Joseph Hospital?

III

Did the circuit court err by refusing to allow Mrs. Tuer to introduce a rebuttal witness? ¹²⁵ FACTS In September 1992, Mr. Tuer’s angina, which was first diagnosed in 1976, became unstable. After conducting a stress test, Mr. Tuer’s cardiologist, Dr. Louis Grenzer, recommended that Mr. Tuer have cardiac surgery. Dr. Grenzer referred Mr. Tuer to appellees, who scheduled the surgery for November 9,1992. On October 30, 1992, Mr. Tuer began to experience chest pain and, after calling Dr. Grenzer, was admitted to St. Joseph Hospital.

While in St. Joseph Hospital, Mr. Tuer continued to have chest pain, so Dr. Grenzer prescribed Heparin, an anticoagulant intended to prevent Mr. Tuer from having a heart attack. Mr. Tuer’s surgery was then rescheduled for November 2,1992. Appellees resumed responsibility for Mr. Tuer on November 1,1992 and continued his Heparin dosage. Appellees’ and St. Joseph Hospital’s standard practice at this time was to discontinue Heparin three to four hours prior to the surgery.

One of the major risks associated with bypass heart surgery is inadvertent carotid artery punctures. Discontinuing the Heparin returns the blood’s level of coagulation to normal standards, thereby reducing the risk of excessive bleeding associated with carotid artery punctures. Mr. Tuer’s surgery was scheduled specifically for 9:00 a.m. on November 2,1992. Dr. McDonald discontinued Mr. Tuer’s Heparin at 5:30 a.m. that same day.

Just prior to the start of Mr. Tuer’s surgery, an emergency concerning another patient forced Dr. McDonald to postpone Mr. Tuer’s surgery for three to four hours. Dr. McDonald chose not to restart the Heparin, even though he knew that its protective effects would wear off between 7:30 a.m. and 9:30 a.m. At 1:02 p.m., Dr. McDonald was called to the post-surgical intensive surgery unit. When Dr. McDonald arrived, Mr. Tuer was in cardiac arrest.

Dr. McDonald moved Mr. Tuer into an operating room and placed him on a heart-lung machine. Dr. McDonald then operated on Mr. Tuer in an effort to correct Mr. Tuer’s cardiac condition. Mr. Tuer survived ¹²⁶ the surgery, but because of his deteriorated heart condition, he died the next day of a myocardial infarction. Following the death of her husband, Mrs. Tuer, both individually and as the personal representative of her husband’s estate, filed a negligence claim with the Health Claims Arbitration Office against appellees and St. Joseph Hospital, Inc. Mrs. Tuer claimed that appellees’ and St. Joseph Hospital’s negligence caused the death of Mr. Tuer.

On August 24,1994, all the parties agreed to waive the arbitration claim. On August 26, 1994, Mrs. Tuer filed a four count complaint in the circuit court. The circuit court dismissed St. Joseph Hospital, Inc. as a defendant. On September 13,1995, after a trial on the merits, the jury found for appellees.

Mrs. Tuer filed a motion for a new trial, which the circuit court denied without a hearing. After the circuit court denied her motion for a new trial, Mrs. Tuer filed this timely appeal. DISCUSSION I. Mrs. Tuer argues that the circuit court erred by not admitting evidence that, subsequent to Mr. Tuer’s death, appellees changed their surgical procedures and halted their practice of discontinuing the drug Heparin to patients with Mr. Tuer’s clinical condition prior to surgery. Specifically, Mrs. Tuer insists that appellees’ change in procedure, which qualifies as a subsequent remedial measure under Maryland Rule 5-407, was admissible (l).to prove the feasibility of restarting Heparin; and (2) as evidence to impeach Dr. McDonald’s credibility.

Appellees counter that the circuit court correctly excluded the subsequent remedial measure because feasibility was not contested, and it did not constitute impeachment evidence. This case, like several cases that have come before this Court since the Court of Appeals adopted the New Maryland Rules of Evidence in 1994, requires this Court to interpret a rule of evidence that closely resembles a federal rule analogue. ¹²⁷ Maryland Rule 5-407, which discusses the admission of subsequent remedial measures, reads as follows: (a) In General. — When, after an event, measures are taken which, if in effect at the time of the event, would have made the event less likely to occur, evidence of the subsequent measure is not admissible to prove negligent or culpable conduct in connection with the event. (b) Admissibility for Other Purposes. This Rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

Maryland Rule 5-407 follows the Federal Rule 407 1 with only minor stylistic changes. Lynn McLain, Maryland Rules of Evidence at 13 (1994); see also Alan D. Hornstein, Maryland Rules of Evidence 51 Md.L.Rev. 1032, 1051 (1995) (stating that Rule 5-407 is substantively the same as Federal Rule 407). Additionally, Rule 5-407, by not including that subsequent remedial evidence is admissible to prove the standard of care, overruled Wilson v. Morris, 317 Md. 284 , 563 A.2d 392 (1989) and existing Maryland law, which previously held that subsequent remedial evidence was admissible to prove the standard of care. The rule against admitting evidence of subsequent remedial measures, as articulated by Federal Rule 407 and Maryland Rule 5-407, is based on several policy considerations.

Primarily, the rule for excluding subsequent remedial measures is based on safety concerns. As Judge Richard Posner explained, “A major purpose of Rule 407 is to promote safety by removing the disincentive to make repairs (or take other ¹²⁸ safety measures) after an accident that would exist if the accident victim could use those measures as evidence of the defendant’s liability.” Flaminio v. Honda Motor Co., 733 F.2d 463, 467 (7th Cir.1984); accord Rimkus v. Northwest Colorado Ski Corp., 706 F.2d 1060, 1064 (10th Cir.1983); Werner v. Upjohn, Co., 628 F.2d 848, 857 (4th Cir.1980), cert. denied, 449 U.S. 1080 , 101 S.Ct. 862 , 66 L.Ed.2d 804 (1981); McLain, supra, § 2.407.5, at 110. Professor McLain describes additional policy considerations as follows: (1) The evidence has low probative value with regard to negligence or fault.... (3) To the extent that evidence of subsequent remedial measures is not probative of fault — and to the extent that the evidence may suggest that defendant believes that it had earlier not met the standard of due care— there is also the likelihood of confusion of the jury and unfair prejudice.

McClain, supra, § 2.407.5, at 110 (emphasis in original). The rule excluding subsequent remedial evidence rejects the old saw that “because the world gets wiser as it gets older, therefore it was foolish before,” Hart v. Lanceshire & Yorkshire Ry. Co., 21 L.T.R.N.S. 261, 263 (1869). The wording of Rule 5-407, coupled with the policies underlying the exclusion of subsequent remedial measures, evince an exclusionary approach that rejects the standard articulated by Wilson .

Under this exclusionary approach, courts may only admit evidence of subsequent remedial measures to establish feasibility or to impeach a witness’s credibility. The exclusionary approach serves as a beacon, which warns courts that they “must exercise caution so as to avoid allowing the subsequent repair evidence when the offering party is essentially manufacturing an issue to waft the subsequent repair ¹²⁹ evidence before the jury.” David P. Leonard, The New Wigmore, A Treatise on Evidence § 2.8.1, at 2.116 (1996). 2 Both this Court and the Court of Appeals have in the past used federal case law to interpret Maryland Rules of Evidence that closely resemble their federal counterparts. Accordingly, in this case we shall follow suit and use federal cases that discuss Federal Rule 407 to aid us in our interpretive mission. A. Feasibility Appellant argues that appellees’ change in procedure in administering Heparin was admissible under Rule 5-407’s feasibility exception.

Appellees insist that the feasibility in administering Heparin was never contested during the trial. Before this Court can determine whether feasibility was contested, however, we need to determine what the term feasibility means within the context of Rule 5-407. Defining feasibility within the context of Rule 5-407 requires that we adopt one of two divergent approaches. The first option is the narrow approach that follows the plain meaning of feasibility.

Webster’s Third New International Dictionary 831 (1976) defines the term feasible as “capable of being done, executed, or effected: possible of realization.” Accord American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 508-509 , 101 S.Ct. 2478, 2490-2491 , 69 L.Ed.2d 185 (1981) (adopting the Webster’s definition of feasible within the context of 29 U.S.C. § 655 (b)(5)). Thus, under the narrow approach, the key question to ask is whether the subsequent remedial measure could have been instituted. See, e.g., Leonard, supra, § 2.8.3, at 2:123-127; see also Gauthier v. AMF, Inc., 788 F.2d 634, 637-638 , modified, 805 F.2d 337 (9th ¹³⁰ Cir.1986); Flaminio, 733 F.2d at 468 ; Werner v. Upjohn Co., Inc., 628 F.2d 848 (4th Cir.1980), cert. denied, 449 U.S. 1080 , 101 S.Ct. 862 , 66 L.Ed.2d 804 (1981) (discussing feasibility in terms of economic and technological possibilities). 3 The other option defines feasibility more broadly.

Under the broad approach, feasibility not only means “possible,” but also means “capable of being utilized or dealt with successfully.” Anderson v. Malloy, 700 F.2d 1208, 1213 (8th Cir., 1983) (quoting the second definition listed in Webster’s Third New International Dictionary 831 (1976)). The broad approach allows more subsequent remedial evidence to be admitted, and has only been adopted by one federal circuit. Anderson, 700 F.2d at 1213 . This Court must interpret a rule or statute in accordance with its goals and purposes.

Rose v. Fox Pool Corp., 335 Md. 351, 359 , 643 A.2d 906 (1994). Of the contrasting approaches presented to this Court, the narrow approach is more consistent with the policy underlying the exclusion of subsequent remedial evidence. Rule 5-407 operates to keep subsequent remedial evidence away from the jury except when parties contest that a certain remedial measure could not have been taken. The broad approach, on the other hand, is fatally, flawed.

First, it blurs the line between the offer of subsequent remedial evidence to prove negligence and culpability, which is never allowed, and subsequent remedial evidence that establishes feasibility, which is only allowed when it is contested. The criteria used to determine whether something is feasible under the broad approach and whether a party is culpable are similar. This similarity causes problems differentiating between feasibility and culpability. The danger inherent in ¹³¹ blurring the distinction between feasibility and culpability is expressed as follows: Still, the distinction is extremely subtle, and because the subsequent repair evidence tends to prove the same element of the claim that it would be used to prove if offered for its forbidden purpose [culpability], there is significant danger that the party against whom it is offered will be prejudiced by its admission.... [W]hen offered to prove feasibility of precautionary measures, subsequent repair evidence more closely approaches the forbidden purpose.

Jurors can be expected to have significant difficulty distinguishing between the permissible and impermissible uses of subsequent repair evidence. Leonard, supra, § 2.8.3, at 2:124-125. The broad approach’s second deadly flaw is its inconsistency with basic tenets of statutory construction. The rules of construction are not literary tools intended to create subtle or forced definitions that run contrary to a statute’s or rule’s purpose.

See Ayres v. Townsend, 324 Md. 666, 672 , 598 A.2d 470 (1991); Jones v. State, 311 Md. 398, 405 , 535 A.2d 471 (1988); see also State Dep’t of Assessments and Taxation v. Belcher, 315 Md. 111 , 119, 553 A.2d 691 (1989) (stating that the rules of