Waters v. Smith

Powers, J., delivered the opinion of the Court. Trial of this medical malpractice case before Judge John Grason Turnbull and a jury in the Circuit Court for Baltimore County was aborted on the sixth day of trial. In this appeal we are concerned only with why and how the trial was terminated, and with subsequent proceedings in the case after 30 October 1973, the day the trial ended. The plaintiffs below, appellants here, are the parents and Committee of the person and estate of Marion Bertha Long, ⁶⁴⁴ an incompetent.

The defendants below, appellees here, are four physicians who, in 1960, at the time of the alleged medical malpractice, were members of the medical staff or were otherwise associated with Peninsula General Hospital, in Salisbury. The parents were appointed Committee of their daughter by a decree of the Circuit Court for Wicomico County in January 1969. This suit was filed in February 1970 in the Circuit Court for Baltimore County. With a minimum of background, we shall outline briefly how the case came to its abrupt end.

It is evident from a review of the numerous discovery procedures employed that the defendants sought early to ascertain the source, and no doubt the nature, of certain expert opinion evidence which the plaintiffs would be required to present as a sine qua non to make out a prima facie case of negligence, so as to survive the inevitable motion for a directed verdict. In answers and supplemental answers to interrogatories from time to time, the plaintiffs had named nine different physicians whom they proposed to call as medical experts. None lived or practiced in Maryland. On the morning of the sixth day of trial the plaintiffs filed and delivered to the defendants a further supplemental answer giving the name of Marvin Cohen, M.D., Randallstown, Maryland, an obstetrician and gynecologist, as an expert whom they proposed to call as a witness.

Defendants complained that the disclosure was not timely and that they were taken by surprise. They moyed that Dr. Cohen be excluded as a witness for the plaintiffs. Mr. Herman Glaser of the New York Bar, one of counsel for the plaintiffs, after commenting upon the difficulty of securing a doctor in the same community who would testify against a brother physician, explained to Judge Turnbull the reason for the late disclosure. He said: “And that is the reason why in our list of experts we listed doctors who were not engaged in the practice of medicine in Maryland.

Certain facts developed during this trial, and arguments ⁶⁴⁵ have been made which led me to the conclusion that the big argument in this case was going to be the locality rule, I took a lawyer’s notice of it during the last several days, and after we received additional information that came out in the course of this trial, frankly we made a herculean effort to find an expert in the State of Maryland who would testify against his fellow physician; when last night for the first time we were lucky to break the ice. We called a number of men over the last few days, and they refused to get involved in any malpractice case, and last night we found a physician, an obstetrician-gynecologist, with the courage of his convictions, if I may say that. After we told him what the hypothetical would be, including some of the facts that first came out during this trial, he said he would come and testify.” “The only prejudice that I can see to the defense here is the failure to exercise an opportunity to depose that expert witness. And we welcome the adversaries to depose this man within the next few days, Friday night, any time.

We have expended approximately five, this will be the sixth day of trial time, and I think in the interest of justice our notice should be upheld.” Judge Turnbull stated that the matter was a serious one to both sides. He said: “In the interest of justice the court will permit Dr. Cohen to testify as a witness for the Plaintiffs only on condition that there be a mistrial declared and the case continued for further assignment.” Further colloquy took place among the court and counsel. One of counsel for the defendants summarized: “The appearance of a surprise witness of this type ⁶⁴⁶ at this stage in the proceeding may or may not completely alter the posture of the case, and decisions in this particular regard are necessarily the type of thing that cannot be resolved by a simple telephone call; there needs to be understanding of what the testimony is going to be, the evaluation of it, and conceivably a change in posture.” Judge Turnbull put the election to the plaintiffs. He said: “ * * * the Plaintiffs may not call Dr. Cohen, or if the Plaintiffs wish to call Dr. Cohen, in the interest of substantial justice, * * * the court will permit the Plaintiffs to have an opportunity to call Dr. Cohen, but the court will, if the Plaintiffs wish to call him, declare a mistrial and grant a continuance to give the Defendants ample opportunity to prepare themselves for such testimony as may be elicited from Dr. Cohen.

The Plaintiffs have their election, and will be required to make their election now.” Counsel for the plaintiffs elected to take the mistrial. He said: “Your Honor, reluctantly, and very reluctantly, we have no alternative but to take a mistrial, we accept that, * * Defendants deposed Dr. Cohen on 9 November 1973. Dr. Cohen testified that he was not aware that he was going to be listed as an expert to be called by the plaintiffs, that he had made no commitment to testify, that he was not, on 30 October or at the time of the deposition, professionally prepared to testify as an expert in the case, and that he had expressed to counsel two days before the deposition that he would not appear. On 26 November 1973 the defendants filed a pleading which they entitled, “Motion To Dismiss, To Enter Default Judgment, And To Compel Plaintiffs To Pay Costs Under Maryland Rule 604 b”.

The motion was argued before Judge Turnbull on 8 February 1974. The judge declined to dismiss ⁶⁴⁷ the case, or to enter a default judgment. He stated that it was unnecessary to find that Mr. Glaser intentionally misled the court, but Judge Turnbull did find, “as a matter of fact, he misled the Court, under the language of Rule 604, Subsection b, that Mr. Glaser in fact misled the Court, ‘without substantial justification.’ ” The judge said that he would pass an order requiring the plaintiffs to pay the expenses and loss of income incurred by the defendants by reason of the acts of plaintiffs’ counsel in misleading the court. He said that the matter would be referred to a standing Master in Chancery to take testimony and make a report to the court, after which there would be a hearing on any exceptions filed.

The court’s instructions to counsel were: “In your first order, just say that proceedings, further proceedings, other than hearings before the Master, and so forth, further trial on the merits will be stayed pending further order of the Court, and then in your final order, include a statement that proceedings will be stayed indefinitely until and unless whatever is ordered to be paid has been paid.” Plaintiffs filed a motion for rehearing. It was heard and denied on 9 May 1974. On the same day Judge Turnbull signed and filed an Order of Stay And Reference. The order granted the motion of the defendants to compel the plaintiffs to pay certain costs and expenses, subject to final assessment of the amount; referred the matter to a standing Master in Chancery for taking testimony and proofs and for his report and recommendations; and provided for an opportunity for filing exceptions and for such other action as the case may require, “before a final order shall be entered”.

The order concluded: “And except for the proceedings before the Standing Master in Chancery as above provided, all further proceedings in this matter are stayed until further order of the Court.” ⁶⁴⁸ It is from that order that the plaintiffs took this appeal. In their brief the appellants put the Questions Presented in this way: “1. Did the Court err in staying proceedings until costs had been paid under Maryland Rule 604 b? 2. Did the Court below err in holding that it had inherent judicial power to stay proceedings after a mistrial was declared?” Appellants’ contentions and arguments are directed solely to that part of the lower court’s order which stayed further proceedings.

The attack on the stay is twofold — that it was not authorized by any applicable rule and that the court had no inherent power to impose the stay. Appellants seem to misread the order from which they appealed. Their first argument is premised on the contention that the court erred in staying further proceedings in the case until the costs and expenses of the appellees have been paid. This is not what the court ordered.

We have quoted earlier from the order. It clearly provides that further proceedings are stayed until further order. Judge Turnbull did, indeed, say that he intended, in a final order, to stay the