Irish v. Gimbel

2000 ME 2, 743 A.2d 736, 2000 Me. LEXIS 2

• Court: Supreme Judicial Court of Maine
• Decided: January 6, 2000
• Status: Published

Opinions

ALEXANDER, J.

[¶ 1] Russell and Laurie Irish, as next friends of Shane Irish, appeal from a judgment entered by the Superior Court (Cumberland County, Cole, J.) following a jury verdict adverse to their medical malpractice claim. The jury verdict concluded the second trial in this matter, which occurred on remand pursuant to our opinion in Irish v. Gimbel, 1997 ME 50, 691 A.2d 664 (Irish I). In Irish I, we had vacated a judgment entered after a jury trial and verdict that was also adverse to the Irishes’ claim.

[¶ 2] On appeal, the Irishes contend that:

1. The permitted use of the unanimous adverse finding of the medical malpractice screening panel unconstitutionally interfered with their rights to present the matter to a jury;

2. No reasonable jury could have determined that the Irishes had faded to meet their burden of proof; and

3. The trial judge improperly allowed Gimbel’s counsel to use a blow-up of the unanimous panel finding and to comment about it beyond the limits allowed in Irish I.

[¶ 3] We affirm.

[¶ 4] The history of the case, except for the second jury verdict adverse to the Irishes, is adequately outlined in Irish I and is not repeated here.

[¶ 5] The Irishes contend that the permitted use of the unanimous panel finding before the jury violated their state and federal constitutional rights to a jury trial, to procedural and substantive due process, to equal protection of the law, and resulted in a violation of constitutional separation of powers. Except for one aspect of the separation of powers claim, all of the other constitutional issues raised by the Irishes were litigated and addressed in Irish I. They will not again be addressed here. See Bourgeois v. Great N. Nekoosa Corp., 1999 ME 10, ¶ 5, 722 A.2d 369, 371. (“Stare decisis embodies the important social policy of continuity in the law by providing for consistency and uniformity of decisions.”); see also Trask v. Automobile Ins. Co., 1999 ME 94, ¶ 9, 736 A.2d 237; Shaw v. Jendzejec, 1998 ME 208, ¶¶ 8-9, 717 A.2d 367, 370-71. “We do not disturb a settled point of law unless ‘the prevailing precedent lacks vitality and the capacity to serve the interest of justice.’ ” Bourgeois at ¶ 5, p. 371 (citing Myrick v. James, 444 A.2d 987, 1000 (Me.1982)).

[¶ 6] The one new issue asserted by the Irishes is that this Court, in Irish I, violated the separation of powers mandated by Article III of the Maine Constitution by requiring a specific statement about an adverse panel finding under the governing legislation which, before amendment in 1999, required that panel findings be admitted “without explanation.” See 24 M.R.S.A. § 2857(1) (1990), amended by P.L.1999, ch. 523, § 4 (effective September 18, 1999);¹ Irish I, ¶¶ 11-13, 691 A.2d at 670-71.

[¶ 7] In Irish I, we stated that presenting to a jury the neutral information described in Irish I was necessary not to explain or litigate the panel findings, but to prevent a jury from drawing improper inferences from the “total absence of information and the unexplained silence of plaintiffs counsel in the face of the highly prejudicial findings.” Id., ¶ 11, 691 A.2d at 670. In the same manner we have, for many years, required judicial comment on the right of an accused to remain silent and not testify at trial where the accused has elected not to testify at trial and has not specifically waived such a judicial comment. See State v. Libby, 410 A.2d 562, 564 (Me.1980); State v. White, 285 A.2d 832, 836 (Me.1972). In those criminal cases, although judicial and prosecutorial comment or suggestion about a choice of an accused not to testify is absolutely prohibited, we have suggested certain restricted neutral statements by the court to prevent a jury from otherwise drawing unwarranted adverse inferences. As we stated in Irish I, the neutral comment supports the general “without explanation” mandate of the legislature designed to avoid a trial within a trial or any such process developing regarding unanimous panel findings.

[¶ 8] As plaintiffs in a negligence action, the Irishes had the burden of proof on all elements of their claim, see Lewis v. Knowlton, 1997 ME 12, ¶ 7, 688 A.2d 912, 913. A party with the burden of proof, seeking to overturn a jury verdict on sufficiency of the evidence grounds, must demonstrate that a verdict in their favor was compelled by the record. See Hughes Bros., Inc. v. A & M Contractors, Inc., 1999 ME 175, ¶ 2, 740 A.2d 996; Haworth v. Feigon, 623 A.2d 150, 160 (Me.1993). Factfinders are not required to believe witnesses, even if the testimony of witnesses, be they experts or lay witnesses, is not disputed. See In re Fleming, 431 A.2d 616, 618 (Me.1981); Qualey v. Fulton, 422 A.2d 773, 775 (Me.1980). Here, given the jury’s capacity to believe or disbelieve witnesses, determine the significance of evidence, arid decide what inferences to draw or riot draw from the evidence, a verdict for the Irishes certainly was not compelled by the evidence presented.

[¶ 9] The Irishes challenge the use of a two-foot by three-foot blow-up of the panel finding by defense counsel. They assert that our ruling in Irish I prohibited the use of blow-ups depicting panel findings. However, the trial court correctly read Irish I and M.R. Evid. 616(a)² and ruled that the blow-up could be used, but only while counsel was making direct reference to it. The blow-up could not, as occurred in Irish I, be left facing the jury during the entire course of the trial. Nothing in Irish I can be read to suggest that we prohibited the use of blow-ups in connection with presentations being made to juries as long as the blow-up does not divert the jury’s attention when the information in the blow-up is not the matter being presented to them. Further, in connection with the use of the blow-up, we do not see in the record any improper comment by defense counsel.

The entry is:

Judgment affirmed.

1 . The 1999 revision of section 2857(1), not applicable to this case, removes the "without explanation” restriction from the original law and may necessitate development of new jurisprudence regarding use of unanimous panel findings. It is applicable to actions "commenced” on or after September 18, 1999. P.L.1999, ch. 523, § 5. The revised section 2857(1) reads as follows:

1. Proceedings before panel confidential. Except as provided in this section and section 2858, all proceedings before the panel, including its final determinations, must be treated in every respect as private and confidential by the panel and the parties to the claim.

A. The findings and other writings of the panel and any evidence and statements made by a party or a party’s representative during a panel hearing are not admissible and may not otherwise be submitted or used for any purpose in a subsequent court action and may not be publicly disclosed, except that:

(1) Any testimony or writings made under oath may be used in subsequent proceedings for purposes of impeachment; and

(2) The party who made the statement or presented the evidence may agree to the submission, use or disclosure of that statement or evidence.

B. If the panel findings as to both the questions under section 2855, subsection 1, paragraphs A and B are unanimous and unfavorable to the person accused of professional negligence, the findings are admissible in any subsequent court action for professional negligence against that person by the claimant based on the same set of facts upon which the notice of claim was filed.

C. If the panel findings as to any question under section 2855 are unanimous and unfavorable to the claimant, the findings are admissible in any subsequent court action for professional negligence against the person accused of professional negligence by the claimant based on the same set of facts upon which the notice of claim was filed.

The confidentiality provisions of this section do not apply if the findings were influenced by fraud.

2 . M.R. Evid. 616(a) states:

(a) Subject to the provisions hereof, depictions and objects not admissible in evidence may be used to illustrate the testimony of witnesses or the arguments of counsel.