Doane v. E. Maine Med. Ctr.
Opinion
STATE OF MAINE SUPERIOR COURT PENOBSCOT, ss. CIVIL ACTION DOCKET NO. CV-05-J 7,8
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SUSAN L. DOANE, as Personal Representative of the Estate of Nicole Severance,
Plaintiff,
v. DECISION ON PLAINTIFF'S M.R. elv.
P. 59(a) MOTION FOR A
NEW TRIAL
EASTERN MAINE MEDICAL CENTER, et al.
Defendants.
This matter comes before the Court on the Plaintiff s motion for a new trial filed pursuant to M.R. Civ. P. 59(a). Having reviewed the parties' submissions and reflected on the applicable law, the Court denies the motion.
BACKGROUND
The parties do not dispute that the decedent, Ms. Severance, suffered through various physical ailments throughout much of her child and adult life, including abnormal build-up of spinal fluid in her brain. As an infant Ms. Severence had a "VP shunt" placed internally in the base of her skull to help redistribute excess spinal fluid from her head into her abdomen. Ms. Severance periodically experienced complications with the VP shunt. During the late evening and early morning hours of April 28 and 29, 2003, Ms. Severance sought treatment at Eastern Maine Medical Center for complications potentially associated with a malfunctioning VP shunt. Shortly after discharge from
EMMC at 6: 15 a.m. on April 29, 2003, Ms. Severance collapsed upon returning home and was rushed to back EMMC. Sadly, Ms. Severance passed away on April 30,2003, without regaining consciousness. The Plaintiff filed the action for professional malpractice and wrongful death against defendants Kathryn Roseberry, PA-C, Ruth Fogler, M.D., Eastern Maine Medical Center ("EMMC"), Mary Warner, M.D., and Spectrum Medical Group, P.A. on October 22,2008. The proceedings culminated in a seven-day trial that commenced on April 26, 2010, and concluded on May 4,2010. Ultimately, Dr. Warner and Spectrum Medical were dismissed by agreement with Plaintiff. Defendants Roseberry, Fogler, and EMMC remained in the action.
Specifically at issue in the Plaintiffs M.R. Civ. P. 59(a) motion is the Court's decision to admit deposition testimony of the EMMC's "causation" expert, Dr. Carlos David, into evidence. In the late afternoon of Wednesday, April 29, 2010, while conversing with the parties in chambers concerning remaining scheduling matters, the Defendants' counsel intimated that he did not anticipate calling upon Dr. David to travel from Burlington, Massachusetts to present live testimony. At the time, the Defendants' counsel cited no reason for the decision other than plain language of M.R. Civ. P. 32(a)(3)(B). Plaintiffs counsel fervently objected, and the Court instructed that the objection be made part of the record upon returning to the courtroom. The Court took the issue under advisement over the weekend and became aware of a case, Gierie v. Mercy Hospital, 2009 ME 45, 969 A.2d 944, that dictated the result ultimately reached by the Court-namely, that Defendants could read portions of Dr. David's deposition testimony into evidence pursuant to the M.R. Civ. P. 32(a)(3)(B). The Plaintiff also alleges, based on the evidence produced at trial, that a rational jury could only have found one or all of
the defendants in the action negligent, and that the negligence was the proximate cause of Ms. Severance's death.
DISCUSSION
M.R. Civ. P. 59(a) permits the Court "to grant a new trial to all or any of the parties and on all or part of the issues for which new trials have ... been granted in actions at law ... in the courts of this state." The plaintiff contends that the Court committed prejudicial error by allowing the Defendants to read Dr. David's deposition testimony into evidence. As a general matter, M. R. Civ. P. 32(a)(3)(B) permits litigants to use, for any purpose, the deposition of a witness "against any party who was present or represented at the taking of the deposition" provided the court finds "that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the United States, unless it appears that the absence ofthe witness was procured by the party offering the deposition." Id (emphasis added).
The Plaintiffs objections to the Court's ruling-permitting the Defendant EMMC to read parts of Dr. David's deposition testimony into evidence by operation ofM.R. Civ. P. 32(a)(3)(B}--can be folded in to four categories. First, that the Court's decision constituted unfair surprise on account of the November 25,2009, Pretrial Order requiring the parties to designate those depositions expected to be read into evidence not later than "21 days prior to the commencement of the trial session or 10 days before the trial management conference, whichever is earlier." Second, Plaintiff asserts that the reading of deposition testimony obtained during the discovery phase "prevents a party from confronting the opposing expert with new information developed subsequent to the deposition" and otherwise deprives the jury of the ability to observe the expert's behavior
on the witness stand. Third, the Plaintiff insinuates that Defendant EMMC' s proffered reason for reading Dr. David's testimony into evidence suggests that his absence was, in fact, procured. And finally, the Plaintiff argues that the admission of Dr. David's testimony violates the "one expert issue per expert rule." The Court discusses these arguments in turn.
At the threshold, the Court understands that the oral admission of Dr. David's deposition testimony into evidence at trail departs from the timing established by the November 25,2009 Pretrial Order. (See PI. 's Mot. for a New Tr. Ex. C.) A close reading of paragraph 4 of the Order, specifically related to depositions, exposes that one of the main purposes of the language is to assist the parties, and the Court, in determining exactly what portions of deposition testimony, whether read into evidence or presented by videotape at trial, are objectionable or otherwise properly admissible. Dr. David was properly designated as Defendant EMMC's expert "causation" witness within the limits established. To the extent there was any deviation from the timing established by the November 2009 Pretrial Order, the Court made careful efforts to exclude, on Plaintiff's motion, those portions of Dr. David's deposition that were objectionable or otherwise outside the scope of his expert witness designation.
The Plaintiff suggests that the admission of Dr. David's deposition, obtained during the "preliminary" or discovery stage of trial, placed counsel at significant disadvantage in terms of inhibiting counsels' ability to cross-examine Dr. David and perhaps confront him with evidence that would likely impugn his opinion. In Gierie, 2009 ME 45, ~ 19,969 A,2d at 949, the Law Court specifically reiterated that "the distinction between discovery depositions and trial depositions and their admissibility
under M.R. Civ. P. 32 is supported neither by case law nor the language of the rule." Id. (citation omitted). While the Defendants' sudden and impromptu trial tactic might have inhibited the jury from judging Dr. David's credibility based upon direct observations his behavior on the witness stand, the Plaintiffs own causation expert presented opinions that flatly contradicted those expressed by Dr. David. To that end, the jury could justifiably weigh issues of causation raised during trial and reflect upon the inherent credibility of the parties' expert witnesses, as against each other, in arriving at the verdict.
Defendants' counsel proffered no reason at the time the he made it known that Dr.
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