Wrobleski v. De Lara

SALMON, Judge. The main issue presented in this case is whether it was permissible for an attorney to ask an expert witness on cross-examination to reveal the amount of compensation he had earned in the past from participating as an expert witness in other cases. Courts elsewhere have been divided as to this issue. This presents a question of first impression in Maryland.

I. FACTS Linda Wrobleski, in June of 1994, was a patient of Nora de Lara, M.D., a specialist in obstetrics and gynecology. On June 6, 1994, Dr. de Lara performed laparoscopic gynecological surgery on Ms. Wrobleski at Church Hospital in Baltimore, Maryland. Ms. Wrobleski was discharged from the hospital two days after surgery, but on June 11, 1994, she was rehospitalized and diagnosed as having peritonitis due to a perforation of the small bowel. A second operation followed, as did significant pain, discomfort, and disability caused by the peritonitis.

Ms. Wrobleski sued Dr. de Lara in the Circuit Court for Baltimore City for medical malpractice. In her complaint, she alleged, inter alia, that during the June 6th medical procedure, Dr. de Lara negligently perforated the small bowel. She further alleged that the operation should never have been performed in the first place due to her (plaintiffs) history of prior pelvic surgery, which made the potential for surgical ¹⁸⁴ injury unacceptably high. In her answer to the complaint, Dr. de Lara denied all allegations of negligence.

A five-day jury trial commenced on January 28, 1997 (Strausberg, J., presiding). The trial, in essence, was a battle of the experts. Ms. Wrobleski called Dr. William Battle, a surgeon, and Dr. Max Lilling, an obstetrician and gynecologist (OB/GYN), as her experts. Dr. de Lara countered with the testimony of Drs.

James Dorsey and Donald Chambers, both OB/GYNs. Dr. Battle testified that in his opinion Dr. de Lara either punctured the bowel during the June 6th operative procedure or devascularized 1 a portion of the bowel during the operation. He further opined that Dr. de Lara acted below the applicable standard of care in failing to recognize during the procedure that the bowel was in fact either punctured or devascularized. According to Dr. Battle, damage caused by the operation required immediate surgical follow-up; but because the injury to the bowel was not recognized, corrective surgery was delayed for five days, and as a consequence, Ms. Wrobleski developed peritonitis.

Dr. Lilling was of the'view that Dr. de Lara fell below the applicable standard of care in performing the laparoscopy because, as she admitted in her operative notes, she proceeded to slice or cut during the operation even though her vision was obstructed. In Dr. Lilling’s words, “If we can’t see, then we can’t cut.” He opined that “to continue on is to markedly increase the possibility that the unseen portion of the blade ... will ... cut something ... and it was at this time in trying to do that that the injury to the small bowel was caused.” Dr. Lilling also testified that, based on Dr. de Lara’s surgical notes, during the operation she saw a “pinpoint opening” — a sharply made cut or incision through the bowel. Having seen such an opening, Dr. de Lara should have either immediately closed it, or if she was not qualified to make the repair, she ¹⁸⁵ should have called an abdominal surgeon “to evaluate and identify the needs of the bowel.” As might be expected, the two experts called by Dr. de Lara disagreed in all material respects with the expert opinions of Drs. Lilling and Battle.

Dr. de Lara’s experts opined that the bowel perforation was the result of abrasions to the serosa (the outer surface of the bowel wall). These abrasions likely interrupted blood supply to that area of the bowel wall, causing gradual necrosis that ultimately resulted in an opening that permitted bowel contents to leak into the abdomen. In their opinions, Dr. de Lara did not perform below the applicable standard of care prior to or after the June 6th procedure. According to the defense experts, abrasions of this type most often heal without need for surgical repair and without difficulty.

Moreover, these types of abrasions often occur even when the surgeon uses the appropriate technique. Defense experts were of the opinion that the abrasions to the bowel wall were not the result of any malpractice on the part of Dr. de Lara. When Dr. Max Lilling testified, defense counsel brought out the fact that Dr. Lilling, a resident of New York, had testified as an expert in fourteen states. Cross-examination also established, without objection, that, in the year 1995, Dr. Lilling had earned “about $27,000 from testifying and serving as an expert in” medical malpractice cases where Marvin Ellin, Ms. Wrobleski’s trial counsel, served as the attorney for other plaintiffs.

He also testified that he had been paid $2,500 for participating as a witness in the case at hand. It was also developed that over a five-year period Dr. Lilling had reviewed approximately twenty cases for Mr. Ellin, and over a seventeen-year period, the doctor had reviewed approximately six hundred cases for counsel representing both plaintiffs and defendants. Defense counsel also asked Dr. Lilling: And, Doctor, at deposition, you wouldn’t tell me how much you earned last year in calendar year 1995 testifying as an expert. Are you prepared to tell this jury how much money you earned reviewing cases, serving as a medical ¹⁸⁶ expert?

Are you prepared to tell this jury how much you made in 1995? Dr. Lilling replied: I told you what I made for [sic] Mr. Ellin and I gave you a percentage relevant to what that was, which is less than 20 percent of my income, and if I give you the next number, sir, you know my income and I don’t think you have a right to knowthat.[ 2 ] At that point, Ms. Wrobleski’s attorney objected and said, “Excuse me. I object to his income unrelated to this [case], Your Honor.” A bench conference ensued in which Ms. Wrobleski’s counsel argued as follows: There is not one Maryland case, although there is an appellate case from Pennsylvania where they reversed the plaintiffs verdict because they asked this very question. I have the case [Mohn v. Hahnemann Medical College and Hospital, 357 Pa.Super. 173 , 515 A.2d 920 (1986),] and I can have it faxed down during lunch because he is not going to finish now anyway.

It’s perfectly proper for him to ask how much has he earned from Ellin & Baker to show any bias, but to go beyond that, particularly when he does defense work, as well, is totally unrelated to any bias in my favor and I would like Your Honor to have the benefit of that Pennsylvania case. It was a reversal done by the [Superior] Court of Pennsylvania of this very question: There is no Maryland case, no appellate case that permits that question to be asked. Judge Strausberg overruled the objection, saying that the jury was entitled to know the amount of income earned by the expert because such income “may — not necessarily will — ... ¹⁸⁷ color his testimony, his willingness to participate in these proceedings and see things a certain way.” After the bench conference, defense counsel asked the following question: One more time, Dr. Lilling. Are you prepared to tell the ladies and gentlemen of the jury how much money you earned in the calendar year 1995 reviewing cases, testifying in depositions, testifying at trial as a medical expert?

Are you prepared to give us a number for all your income for 1995, or, indeed, for any year? The question was unsuccessfully objected to by plaintiffs counsel and the witness answered, “No, sir, I’m not.” 3 After all the evidence had been presented in the case, Ms. Wrobleski’s counsel asked the trial judge to instruct the jury using Maryland Civil Pattern Jury Instructions 10:3, at 280 (1997), which reads: The effect that an injury might have on a particular person depends upon the susceptibility to injury of the plaintiff. In other words, the fact that the injury would have been less serious if inflicted upon another person should not affect the amount of damages to which the plaintiff may be entitled. The trial judge refused to give that instruction.

The case was submitted to the jury on special issues, the first of which read as follows: Do you find that the defendant, Nora L. de Lara, M.D., was negligent in her care and treatment of Linda Wrobleski? The jury answered that first question in the negative, and Ms. Wrobleski noted this timely appeal. ¹⁸⁸ II. QUESTIONS PRESENTED 1. Did the trial court err in allowing defense counsel to ask Ms. Wrobleski’s expert witness, Dr. Lilling, how much money he earned in 1995 as an expert in medical malpractice cases? 2.

Did the trial court err in refusing to propound defense counsel’s requested instruction regarding a plaintiffs susceptibility to injury?

III

DISCUSSION A. Issue 1 Appellant relies exclusively upon the case of Mohn v. Hahnemann Medical College and Hospital, 357 Pa.Super. 173 , 515 A.2d 920 (1986), in support of her contention that it was reversible error for the trial judge to allow Dr. Lilling to be interrogated as to the amount of income he earned in 1995 in his capacity as an expert witness. In Mohn , the defense called as an expert a Dr. Urbach. On cross-examination, plaintiffs counsel asked Dr. Urbach what he had earned testifying as an expert in the past five years. Counsel for the defendant objected to this question, but the objection was overruled.

Plaintiffs counsel proceeded to establish that between 1979 and the date of trial, Dr. Urbach’s annual earning for his work as an expert ranged between $54,652 and $124,-507. The Pennsylvania Superior Court reversed, saying: [UJnder the facts of this case, the nexus between Dr. Urbach’s compensation for all services rendered (which included work for private and governmental agencies, patients and other law firms) from 1979 to 1983, exclusive of those received for work performed for defense counsel’s law firm, and his credibility on the witness stand is tenuous at best. Mohn, 515 A.2d at 925 . In reaching its conclusion that the error entitled the defendant to a new trial, the Mohn Court observed: ¹⁸⁹ It is true, as made mention of in the trial court’s opinion to us, that Dr. Urbach should be required to “lift his visor so that the jury could see who he was, what he represented, and what interest, if any, he had in the results of the trial, so that the jury could appraise his credibility.” Goodis v. Gimbel Brothers, 420 Pa. 439, 445 , 218 A.2d 574, 577 (1966) (Musmanno, J.) (Emphasis added.) However, we do not think this encompasses the emptying of one’s pockets and turning them inside out so that one’s financial worth can be open to scrutiny.

Mohn, 515 A.2d at 924 . The Mohn decision was based, in large part, on the authority of a Pennsylvania Supreme Court decision in the case of Zamsky v. Public Parking Authority of Pittsburgh, 378 Pa. 38 , 105 A.2d 335 (1954). Zamsky involved a property condemnation case in which tenants of the condemned property sought compensation for the public taking. A judgment in favor of the tenants was reversed by Pennsylvania’s highest court because the trial judge allowed the government’s expert to be cross-examined concerning fees received over more than a five-year period for “services rendered” to the condemnor in its acquisition of numerous other pieces of property.

The Zamsky Court concluded: Thus the plaintiffs got before the jury that for services not rendered on the trial of this case (except in part) the firm of the expert witness had been paid $17,866.32, and in the future expected to receive $7,500 to $8,100. Thus error was thrice compounded, as we have said, and in addition consisted in admitting what the witness earned, not as an expert witness, but for general services to the Authority. This examination was clearly prejudicial error which must have contributed to the large verdicts for the plaintiffs. It is entirely proper to inquire of an expert witness what his fees are for testifying in the case on trial.

Commonwealth v. Simmons, 361 Pa. 391, 403 , 65 A.2d 353 ; Grutski v. Kline, 352 Pa. 401, 404 , 43 A.2d 142 ; Reed v. Philadelphia Transit [Transportation] Co., 171 Pa.Super. 60, 62 , 90 ¹⁹⁰ A.2d 371, 33 A.L.R.2d 1166 . But none of the reported cases go to the length that was permitted here, and in overruling the appellant’s objection the court abused its discretion. The earnings of the expert witness from other services performed for the defendant were a purely collateral matter and the testimony thereon was not admissible to affect his credibility.[ 4 ] Zamsky, 105 A.2d at 336 . More recently, in the case of Tiburzio-Kelly v. Montgomery, 452 Pa.Super. 158 , 681 A.2d 757 (1996), the Pennsylvania Superior Court observed that “Mohn ... did not announce a per se rule.” Id. 681 A.2d at 769 .

In the Tiburzio-Kelly case, plaintiff’s expert testified that he did not personally profit from any money or revenue that was generated for his time in assisting litigants and their attorneys with respect to medical malpractice cases. He testified that all money earned in that regard went to a non-profit neighborhood health center that cared for indigents. On cross-examination, defense counsel was allowed to bring out the fact that in 1990, the year that he rendered at least some services for plaintiff, he had received over $100,000 as recompense for