STATE OF MAINE SUPERIOR COURT PENOBSCOT, ss. CIVIL ACTION DOCKET NO. CV-05-J 7,8 W f:.nA (", /; .. , 'i n VI· .'" I. '_-'
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
2 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
3 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
4 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
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF MAINE SUPERIOR COURT PENOBSCOT, ss. CIVIL ACTION DOCKET NO. CV-05-J 7,8 W f:.nA (", /; .. , 'i n VI· .'" I. '_-'
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
2 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
3 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
4 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.
David would not be called upon to present live testimony, the record does not otherwise
indicate an effort on the part of the Defendants "to take active steps to prevent [Dr.
David's] appearance at trial in order to ensure that his deposition would be admissible
pursuant to M.R. Civ. P. 32(a)(3)(B)." Gierie, 2009 ME 45 ~ 20,969 A.2d at 949; see
also Carey v. Bahama Cruise Lines, 864 F.2d 201,204 (Ist Cir. 1988) ("[T]he mere fact
that the deponents are employed by the defendant and there is an identity of interest
between the deponents and their employer is not enough to trigger exclusion because
'procuring absence and doing nothing to facilitate presence are quite different things. "')
(citation omitted). That Defendant EMMC's "causation" expert, Dr. David, was located
a distance beyond 100 miles from the place of trial is a fact the Plaintiff does not and
cannot dispute, and is dispositive of the issue raised in the Plaintiffs motion for a new
trial. Based on this Court's reading of Gierie, coupled with the lack of any affirmative
proof that the Defendant EMMC or its counsel actively procured Dr. David's absence at
trial, the Court finds the admission of certain portions of the deposition testimony
perfectly permissible under M.R. Civ. P. 32(a)(3)(B). Carey, 864 F.2d at 204.
5 The Court, similar to the Plaintiff, is left to speculate as to the reason for the
Defendants' decision not to call upon Dr. David to present live trial testimony. In a
similar vein, the Court does not lend particular credence to the post hoc rationalizations
espoused in Defendants' reply brief. Although the Law Court has interpreted Rule 32 to
import a "preference for live testimony," the rule permits admission of depositions under
any of the circumstances contemplated by M.R. Civ. P. 32 (a)(3)(B). See Gierie, 2009
ME 45 ~ 20, 969 A.2d at 949 (citation omitted). To the extent the Court finds M.R. Civ.
P. 32(a)(3)(B) retrospectively satisfied, the Plaintiffs additional arguments, all part and
parcel of the same objection to the Court's evidentiary ruling, similarly fail to withstand
analysis.
The Court notes that the concept of distance relevant to an analysis of M.R. Civ.
P. 32(a)(B)(3) is severable from concept of "unavailability" involving M.R.E. 804(a)(5).
That is, "the admissibility of a deposition under the 100 mile provision of Rule 32 is not
conditioned upon the court's inability to subpoena the deponent." Carey, 864 F.2d 490,
204 n.5 (citation omitted). The Carey Court further opined that "Rule 32(a)(3)(B) is more
permissive than Federal Rule of Evidence 804(a)(5). Id Whatever the merits of this
distinction, the Court is not inclined to uproot the clear weight of authority on the issue,
especially where the federal rules and those enacted in this State are identical.
In addition, the Court does not find that Dr. David's testimony violated the "one
expert per issue" rule. As noted by the Defendants, "Dr. Sears only testified to the
conclusion he was required to and did reach, during the course of his care as [Ms.
Severance's] treating physician." (Def.'s Opp'n to Pl.'s Mot. for a New Tr. at 12.) On
the other hand, Defendant hired Dr. David to conduct a comprehensive review of Ms.
6 Severances entire medical history, and he specifically opined on the various possible
causes of Ms. Severance's death. To the extent there was any overlap in opinion, it was
not the type of redundancy that inherently prejudiced the Plaintiffs case. See Gierie,
2009 ME 45, ~ 18, 969 A.2d at 949.
The Plaintiff also maintains that no reasonable view of the evidence admitted at
trial could sustain the jury's verdict. "As the plaintiff and the party with the burden of
proof at trial, [Ms. Doane] can succeed in challenging the verdict on appeal only if she
can establish that the jury was compelled to find in her favor on each element of her
claims." Ma v. Bryan, 2010 ME 55, ~ 6, -- A.2d -- . The Law Court has recognized the
inherent difficulty in obtaining a new trial within the ambit ofM.R. Civ. P. 59(a)
precisely because "a fact-finder, whether it be a jury or a court, is 'not required to believe
witnesses, even if the testimony of [those] witnesses, be they experts or lay witnesses, is
not disputed.'" Dionne v. LeClerc, 2006 ME 34, ~ 15, 896 A.2d 923,929 (quoting Irish v.
Gimbel, 2000 ME 2, ~ 8, 743 A.2d 736, 738). Given the divergent views of the parties'
designated experts, the testimony of Ms. Severance's treating physicians, and the timeline
of events that unfolded on the late evening and early morning hours of April 23 and 24,
the jury was not compelled to find both negligence and causation.
The entry is:
1. Plaintiffs M.R. Civ. P. 59(a) Motion for a New Trial is is DENIED.
2. This order is incorporated into the docket pursuant to
Date: October 1,2:1:· Civ. P. 79(a). .~ __
William R. Anderson Justice, Superior Court
7 SUSAN L DOANE PR EST NICHOL SEVERANCE - PLAINTIFF SUPERIOR COURT 39 PERRY STREET PENOBSCOT, ss. LINCOLN ME 04457 Docket No BANSC-CV-2005-00178 Attorney for: SUSAN L DOANE PR EST NICHOL SEVERANCE ROBERT STOLT - RETAINED 07/28/2005 LIPMAN & KATZ & MCKEE, PA DOCKET RECORD 227 WATER STREET PO BOX 1051 AUGUSTA ME 04332-1051
Attorney for: SUSAN L DOANE PR EST NICHOL SEVERANCE MARK L RANDALL - RETAINED 01/06/2010 RANDALL LAW OPPIC, PA 482 CONGRESS STREEET STE 304 PO BOX 17915 PORTLAND ME 04112
Attorney for: SUSAN L DOANE PR EST NICHOL SEVERANCE ELLIOTT EPSTEIN - RETAINED 12/28/2009 PICKUS & EPSTEIN 980 FOREST AVENUE SUITE 207 PORTLAND ME 04103
Attorney for: SUSAN L DOANE PR EST NICHOL SEVERANCE OWEN B PICKUS - RETAINED 11/16/2009 PICKUS & EPSTEIN 980 FOREST AVENUE SUITE 207 PORTLAND ME 04103
vs KATHRYN W ROSEBERRY PAC - DEFENDANT
Attorney for: KATHRYN W ROSEBERRY PAC GEORGE SCHELLING - RETAINED GROSS MINSKY MOGAL PA 23 WATER ST SUITE 400 PO BOX 917 BANGOR ME 04402
Attorney for: KATHRYN W ROSEBERRY PAC SA,.'fDRA L ROTHERA - RETAINED 08/15/2005 GROSS MINSKY MOGAL PA 23 WATER ST SUITE 400 PO BOX 917 BANGOR ME 04402
RUTH A FOGLER MD - DEFENDANT
Attorney for: RUTH A FOGLER MD GEORGE SCHELLING - RETAINED GROSS MINSKY MOGAL PA 23 WATER ST SUITE 400 PO BOX 917 BANGOR ME 04402
Page 1 of 26 Printed on: 10/04/2010 BANSC-CV-2005-00178 DOCKET RECORD Attorney for: RUTH A FOGLER MD SANDRA L ROTHERA - RETAINED 08/15/2005 GROSS MINSKY MOGAL PA 23 WATER ST SUITE 400 PO BOX 917 BANGOR ME 04402
EASTERN MAINE MEDICAL CENTER - DEFENDANT
Attorney for: EASTERN MAINE MEDICAL CENTER GEORGE SCHELLING - RETAINED GROSS MINSKY MOGAL PA 23 WATER ST SUITE 400 PO BOX 917 BANGOR ME 04402
Attorney for: EASTERN MAINE MEDICAL CENTER SANDRA L ROTHERA - RETAINED 08/15/2005 GROSS MINSKY MOGAL PA 23 WATER ST SUITE 400 PO BOX 917 BANGOR ME 04402
MARY A WARNER MD - DEFENDANT
Attorney for: MARY A WARNER MD MARK LAVOIE - RETAINED NORMAN HANSON & DETROY 415 CONGRESS STREET PO BOX 4600 PORTLAND ME 04112-4600
SPECTRUM MEDICAL GROUP PA - DEFENDANT
Attorney for: SPECTRUM MEDICAL GROUP PA MARK LAVOIE - RETAINED NORMAN HANSON & DETROY 415 CONGRESS STREET PO BOX 4600 PORTLAND ME 04112-4600
Filing Document: NOTICE OF CLAIM Minor Case Type: MEDICAL MALPRACTICE Filing Date: 07/28/2005
Docket Events: 07/28/2005 FILING DOCUMENT - NOTICE OF CLAIM FILED ON 07/28/2005
07/28/2005 Party(s): SUSAN L DOANE PR EST NICHOL SEVERANCE ATTORNEY - RETAINED ENTERED ON 07/28/2005 Plaintiff's Attorney: ROBERT STOLT
08/04/2005 Party(s): SPECTRUM MEDICAL GROUP PA SUMMONS/SERVICE - PROOF OF SERVICE SERVED ON 07/26/2005 Page 2 of 26 Printed on: 10/04/2010