IN THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY, MARYLAND
KENNETH G. BUTTON,
Case No. CAL06-02694
Opposition to Motion for New Trial
Plaintiff opposed Defendant’s motion for a new trial. In support thereof, Plaintiff states as follows:
This is a personal injury case arising out of a motor vehicle collision. After a three-day jury trial, solely on the issue of the Plaintiff’s damages, the jury returned a verdict in the amount of $663, 821.15. [Miller & Zois Note: State Farm’s offer was $20,000] The Defendant has filed a Motion for a New Trial. She asserts that she is entitled to a new trial for three reasons.
First, she contends the Court erred in denying her request for a mistrial when the jury was inadvertently shown a PowerPoint slide containing the words “hit and run.”
Second, she contends the court erred in not granting her request for a mistrial based upon a purported discovery violation relating to Plaintiff withholding evidence of psychiatric treatment.
Third, Defendant claims the Court erred in denying her Motion in Limine to exclude certain portions of Plaintiff’s medical expert’s testimony, again based upon purported discovery violations. Defendant’s Motion should be denied because the Court properly addressed each of these issues within the scope of its discretion.
I. The Court Did Not Err In Denying Defendant’s Request For A Mistrial Because The Jury Was Inadvertently Permitted A Momentary Glimpse Of The Words “Hit And Run.”
Defendant has alleged that she was denied a fair trial because the Plaintiff’s counsel inadvertently showed the jury a PowerPoint slide that contained among other words, the words “hit and run.” The slide was visible for no more than a few seconds whereupon Plaintiff’s counsel realizing the words “hit and run” were contained in the slide immediately stepped in front of the projector blocking the jury’s view of the slide and apologized to the Court for the incident. This incident was clearly inadvertent and unintentional. The Court so concluded and instructed the jury to disregard whatever they may have seen on the slide. The jury is presumed to follow the Court’s instructions and there is no evidence to remotely suggest that the Court’s instructions were not followed. The words “hit and run” were never mentioned again during the three-day trial. The Court further instructed the jury that the statements of counsel were not evidence.
“Whether to order a mistrial rests in the discretion of the trial judge, and appellate review of the motion is limited to whether there has been an abuse of discretion.” Lai v. Sagle, 373 Md. 306, 317, 818 A.2d 237, 244 (2003). Where, as here, a curative instruction is given, an appellate court will affirm the trial court unless “the evidence was so prejudicial that it denied the defendant a fair trial, that is, whether the damage in the form of prejudice to the defendant transcended the curative effect of the instruction.” Id.
Here, Defendant complains of a single phrase on a slide that was visible for seconds at best. The inadmissible material was never mentioned by counsel again in the course of the three-day trial. Moreover, it was understood by all that the momentary display of the slide was due solely to an inadvertent error by counsel in editing the slides to comply with the Court’s pretrial ruling.
Generally, a single, inadvertent reference to an impermissible material is insufficient to generate a mistrial. Even the cases cited by Defendant show that a fleeting glimpse of a slide containing a single prejudicial phrase does not justify the grant of a mistrial, particularly given the deferential standard of review that is applied by appellate courts. Lai v. Sagle, 373 Md. 306, 317, 818 A.2d 237, 244 (2003)(Mistrial warranted where counsel intentionally disregarded the court’s ruling and told the jury in open court that the defendant doctor had been sued five times previously for malpractice); Tierco Maryland, Inc. v. Williams, 381 Md. 378, 404, 849 A.2d 504, 520 (2004)(where racial discrimination was mentioned 65 times in a three-day trial where there was no cause of action for racial discrimination, a new trial was warranted), DeMay v. Carper, 247 Md. 535, 540, 233 A.3d 765, 768 (1967)(a single reference to an inflammatory term in the opening was adequately cured by court’s instruction).
Because the Court adequately addressed the issue with a curative instruction, no new trial is warranted here.
II. Defendant is not entitled to a new trial based on purported discovery misconduct where no motion to compel or for sanctions was filed.
A. Plaintiff’s purported failure to provide discovery of certain medical treatment.
Defendant claims she was denied a fair trial by the Plaintiff’s discovery conduct in refusing to provide her certain medical records and refusing to answer questions during her deposition regarding some medical treatment. The Defendant never filed a motion to compel or motion for sanctions based upon any failure by the plaintiff to provide records or testimony. Notwithstanding that the Court granted the Plaintiff’s Motion in Limine precluding the Defendant from inquiring into some treatment unless the Plaintiff “opened the door” (which she did not); this objection was waived by the Defendant’s complete failure to address the claimed discovery violation pre-trial. Here, where Defendant failed to file a motion to compel discovery pursuant to Md. Rule 2-432, she may not later seek relief at trial for a purported discovery violation. “A party who believes that a discovery response is inadequate but who fails to seek relief under this rule may not raise the issue of the purported discovery violation at trial.” Paul V. Maryland Rules Commentary, 3d Ed., Supp. P. 61 (Lexis-Nexis 2003 & Supp. 2008) (citing Food Lion, Inc. v. McNeill, 393 Md. 715, 904 A.2d 464 (2006)).
B. Plaintiff’s purported failure to disclose Dr. Dellapenna’s opinions.
Defendant claims that Dr. Dellapenna, a surgeon, cannot provide an opinion that the accident caused the Plaintiffs RDS due to “surprise”. This claim is groundless and disingenuous.
The Order of this Court signed by The Hon. Barbara Kerr Howe on July 21, 2009 (which was actually written on the Plaintiff’s pleading entitled “Plaintiff’s Request for a Postponement of the Trial Date), almost one year before the trial on this case, contained the following statement:
- Plaintiff was diagnosed with Reflex Sympathetic Dystrophy in her left knee. This is the same knee that was injured in the automobile collision for which the Plaintiff has undergone two surgical procedures.
- That in light of this new medical condition
related to the automobile collision, the Plaintiff is scheduled for additional medical care and treatment which includes a lumbar nerve block injection. As RSD is known to develop into a permanent and disabling injury, Plaintiff respectfully moves that the trial date be postponed to allow her sufficient time to obtain the proper medical care and treatment associated with this medical condition and to present expert testimony at trial regarding this medical condition.”
The Defense consented to the postponement. As a follow up to the Plaintiff’s postponement request she sent defense counsel a supplemental Expert Designation which was all done in accordance with the newly issued scheduling order. That pleading identified Dr. Dellapenna as an expert witness and stated:
Michael A. Dellapenna, M.D.,a medical doctor with expertise in anesthesiology and pain management, Union Memorial Pain Specialist, Union Memorial Hospital. Dr. Dellapenna will provide opinions in accordance with his medical reports previously supplied to the Defendant, which include but are not limited to: 1) That the plaintiff sustained an injury to her knee (chronic patellar tendonitis) as a direct result of the automobile collision, 2) That this injury require multiple surgeries, physical therapy, sympathetic nerve block injections, and other medical care, 3) That the injury included the development of RSD/Complex Regional Pain Syndrome. That these injuries are permanent in nature, and that the Plaintiff will require future medical care and treatment for her injuries, that all of the medical treatment and bills were fair and reasonable. The doctors’ opinions are based upon his review of the medical records, treatment or examination of Plaintiff, history taken from Plaintiff and years of experience and medical training. Plaintiff incorporates all of her medical records and bills as though fully set forth herein.
From this expert designation, the Defendant was told that Plaintiff claimed she developed RSD from the car accident and that Dr. Dellapenna would be providing the opinion of causation. Defendant was told Plaintiff would require future medical treatment, and that Dr. Dellapenna would testify that the cost of such treatment was fair and reasonable.
The Defendant elected not to conduct a discovery deposition of Dr. Dellapenna and now complains that she was somehow ambushed by his opinions. Defendant’s claim that she was ambushed by the future medical costs for future surgeries was is false and misleading. On April 29, 2010, the Defendant was provided with those figures. Please see Exhibit 1 attached hereto and incorporated by reference. Again on May 10, 2010, the Plaintiff sent an additional document to the Defendant that specifically listed each related future medical expense, see Exhibit 2. Defendant made no request to postpone the trial date after receiving the information for the future medical costs. By failing to request a postponement and failing to file any other objection regarding the future medical costs -her objection to being “surprised” and “ambushed” is groundless.
Defendant’s failure to object to the Plaintiff’s expert witness disclosures during the discovery phase means that she is entitled to no relief at trial based upon her claims of a discovery violation. As the Court of Appeals of Maryland has stated:
A party who answers a discovery request timely and does not receive any indication from the other party that the answers are inadequate or otherwise deficient should be able to rely on, for discovery purposes, the absence of a challenge as an indication that those answers are in compliance, and, thus not later subject to challenge as inadequate and deficient when offered at trial. Food Lion, Inc. v. McNeill, 393 Md. 715, 736, 904 A.2d 464, 477 (2006)(Bell, C.J.).
Defendant was told that Dr. Dellapenna would testify as to the causal relationship of Plaintiff’s RSD to the car accident, and to the relationship of Plaintiff’s medical treatment and bills. Where she did not object to these disclosures during discovery, she may not later seek relief at trial based upon an argument that the disclosures she never objected to lacked sufficient detail. Accordingly, Defendant is not entitled to a new trial.
Defendant claims she is entitled to a new trial because of several discretionary rulings made at trial. Defendant is incorrect, and her Motion for New Trial should be denied. First, the Court correctly exercised its discretion by choosing to correct Plaintiff’s counsel’s inadvertent momentary display of the words “hit and run” to the jury by way of a curative instruction. This was the appropriate relief for such a minimal, inadvertent presentation of irrelevant material. Second, Defendant is not entitled to any relief based on claimed discovery violations where no motion to compel or motion for sanctions was filed during the discovery process. Defendant was well aware that Plaintiff claimed her mental health treatment was confidential and that she objected to disclosing it, yet Defendant took no steps to compel its production. Similarly, Defendant was told that Dr. Dellapenna would testify about the Plaintiff’s RSD, its causation, the treatment rendered, and the cost of such treatment. Defendant cannot credibly claim that she is entitled to relief for inadequate expert testimony disclosures where she made no effort to object to those disclosures prior to trial. Accordingly, Defendant’s Motion should be denied.
Miller & Zois, LLC
Rodney M. Gaston
1 South St, #2450
Baltimore, MD 21202
Attorney for Plaintiff
Certificate of Service
I, Rodney M. Gaston, do hereby certify that I sent a copy of Plaintiff’s Response to Defendants Motion for a New Trial via U.S. first class mail, this ___ day of _________________, 2017, to:
H. Barritt Peterson, Jr.&Associates (State Farm)
One West Pennsylvania Ave Suite 500
Towson, Maryland 21204
Attorney for Defendant