Waters v. Smith

Singley, J., delivered the opinion of the Court. This medical malpractice action on behalf of an incompetent was instituted on 24 February 1970 by Oscar and Edith Waters, the parents of Marion Bertha Long, the incompetent, who had qualified as her committee in January, 1969. Named as defendants were Stedman W. Smith, M.D., William S. Womack, M.D., B. A. Rimer, M.D., and Robert H. Johnson, Jr., M.D., who were associated with Peninsula General Hospital in Salisbury in 1960 at the time of the alleged malpractice. Following protracted pretrial discovery and numerous postponements, the case finally came to trial on 23 October 1973 before Judge John Grason Turnbull in the Circuit Court for Baltimore County. ¹⁹¹ As the trial proceeded, it became evident to the plaintiffs that they had presented a paucity of evidence on the issues of medical causation and the applicable standard of care, under the so-called “strict locality rule,” 1 which counsel for the plaintiffs apparently believed to be applicable.

For this reason, the plaintiffs served defendants, on the sixth day of trial, with additional supplemental answers to interrogatories, in which the plaintiffs announced their intention to call Marvin Cohen, M.D., who specialized in gynecology and obstetrics and was licensed in the State of Maryland, as an additional medical expert. The defendants objected strenuously to this eleventh-hour tactic on grounds of unfair surprise and prejudice. Counsel for the plaintiffs, attempting to justify the move, explained that, despite a “herculean effort,” no physician practicing in Maryland willing to testify had been located previously because of a “conspiracy of silence” among members of the medical profession, but that Dr. Cohen “. . . [a]fter we told him what the hypothetical [question] would be, including some of the facts that first came out during this trial, .. . said he would come and testify.” Judge Turnbull was placed in a difficult position by the plaintiffs’ announced intention of calling Dr. Cohen. On one hand, Judge Turnbull realized the dilemma faced by the plaintiffs with regard to obtaining local expert testimony.

On the other, he recognized that the defendants might be severely prejudiced by Dr. Cohen’s testimony because, in the midst of the trial, little opportunity could be afforded to depose him and to evaluate his expert opinion, even though the plaintiffs had suggested a continuance of a few days. Judge Turnbull was able to reach what then appeared to him to be an equitable solution to the problem: “In the interest of justice the court will permit Dr. Cohen to testify as a witness for the Plaintiffs only on the condition that there be a mistrial declared and the case continued for further assignment.” ¹⁹² The plaintiffs agreed to the mistrial, which was ordered by Judge Turnbull on 30 October 1973. On 9 November 1973, the defendants deposed Dr. Cohen, at which time the following colloquy took place: “Q [by defendants’ counsel] Were you aware, sir, [Dr. Cohen] that... you were going to be listed as an expert to be called by the Plaintiffs at that time [of the trial in October]? “A [by Dr. Cohen] No, sir. “Q As of that date, I am referring to October 30, 1973, had you made any commitment to the Plaintiffs in this case or to their counsel to appear as an expert on their behalf? “A No, sir. . . . “Q Well, so, is it fair to say, Doctor Cohen, that even as of this date, you are not, in terms of your preparation, at least, in a state that you would consider yourself willing to appear for the Plaintiffs as an expert in this case? “A I, I have already expressed to the counsels as of two days ago that I would not appear in this case.” Having thereby determined that as of 30 October 1973, Dr. Cohen had never agreed to testify on behalf of the plaintiffs, the defendants, on 26 November 1973, filed a “Motion To Dismiss, To Enter Default Judgment, And To Compel Plaintiffs to Pay Costs Under Maryland Rule 604 b.” 2 On 8 February 1974, Judge Turnbull held a hearing on the defendants’ motion. The Judge refused to dismiss the case or to order a default; however, he did state that: “I don’t find it necessary to find that he [counsel for ¹⁹³ the plaintiffs] intentionally misled the Court.

I do, however, find that, as a matter of fact, he misled the Court, under the language of Rule 604, Subsection b . . . ‘without substantial justification.’ ” This finding, in Judge Turnbull’s opinion, necessitated a ruling that the plaintiffs were required, under Rule 604 b, to pay the costs and expenses incurred by the defendants as a result of plaintiffs’ counsel having misled the court because of the mandate of the Rule that “the court shall require the moving party to pay .. . the costs ... and the reasonable expenses incurred . . . .” (emphasis supplied). Judge Turn-bull then stated that he would refer the matter to the standing master for assessment of costs and expenses, and that: “. .. when all or any part of the Master’s report becomes final, the Court will sign a final order requiring such reimbursements to be made to the Defendants as in the Court’s judgment have been properly proven. The Court will include in that order, for your information, gentlemen, a further order that proceedings in this matter will be indefinitely stayed . . . until payment in full of whatever costs the Court eventually awards against the Plaintiff herein.” Following denial of the plaintiffs’ motion for rehearing on 9 May 1974, Judge Turnbull signed an “Order Of Stay And Reference,” providing that “all further proceedings in this matter are stayed until further order of the Court,” (emphasis supplied) except the hearing to be held before the master. It is from this order that the plaintiffs appealed to the Court of Special Appeals.

The Court of Special Appeals dismissed the appeal on the grounds that the appeal was neither from a final order, as required by Maryland Code (1974), Courts and Judicial Proceedings Article § 12-301, nor from an interlocutory order appealable under § 12-303 of the same article, Waters v. Smith, 27 Md. App. 642 , 342 A. 2d 8 (1975). We granted certiorari. ¹⁹⁴ The plaintiffs suggest that the ease presents three questions for our consideration: 3 “1. Did the Trial Court err in staying proceedings in the instant case until costs have been paid under Maryland Rule 604 b? “2. Did the Trial Court err in holding that it had inherent Judicial Power to stay proceedings after a mistrial was declared? “3.

Was the Order of the lower court appealable prior to trial on the merits?” 4 We regard the third question as dispositive of the case at this juncture, and we shall hold that Judge Turnbull’s'order referring the matter to the standing master and staying further proceedings was neither a final order nor an appealable interlocutory order. It is evident to us, as it was to the Court of Special Appeals, that the plaintiffs have incorrectly interpreted Judge Turnbull’s order from which this appeal was taken. What the trial judge ordered was, indeed, a stay of all proceedings pending the report and recommendation of the master. This stay, however, was certainly not a final order, for Judge Turnbull succinctly stated: “. .. when all or any part of the Master’s report becomes final, the Court will sign a final order .. ..” (emphasis supplied).

Thus, the stay by Judge Turnbull was nothing more than an order referring the matter to the master together with a statement of an intention to stay the proceedings following the master’s report until the plaintiffs paid whatever costs were assessed. This Court has long held that expressions of intention by a trial judge are not final orders since they are ¹⁹⁵ always subject to