IRISH v. GIMBEL, 2000 ME 2

743 A.2d 736

Russell IRISH et al. v. Gregory GIMBEL.

Docket Cum-99-36.Supreme Judicial Court of Maine.Argued October 5, 1999.
Decided January 6, 2000.

Appeal from the Superior Court, Saufley, J.

Attorneys for plaintiffs: Gerald F. Pettruccelli, Esq., (orally), Linda C. Russell, Esq. Petruccelli Martin, LLP. Paul R. Dumas Jr., Esq., Joyce, Dumas, David and Hanstein, P.A. C. Donald Briggs III, Esq., Cloutier Briggs, P.A.

Attorneys for defendant: Christopher D. Nyhan, Esq., (orally), Elizabeth A. Olivier, Esq., Preti, Flaherty, Beliveau,

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Pachios Haley, LLC.

Before WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, and CALKINS, JJ.

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 failed 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.

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[¶ 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 plaintiff’s 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, and decide what inferences to draw or not 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

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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.

DANA, J., with whom CALKINS, J., joins, dissenting.

[¶ 10] I respectfully dissent. Despite our amplification regarding the extent of permissible neutral comment by the trial court in Irish I, the effective silencing of comment by counsel on a piece of evidence as weighty as the findings of a panel of experts impermissibly encroaches on a party’s right to a trial by jury recognized in the Maine Constitution. See Me. Const. art. I, § 20 (1819, amended 1988). Our recommended instructions in Irish I failed to cure this infirmity.

[¶ 11] As we noted in Irish I, the Maine Constitution guarantees a party that the ultimate determination of material questions of fact will be made by the jury. Irish, 1997 ME 50, ¶ 8, 691 A.2d at 669 (citing Peters v. Saft, 597 A.2d 50, 53 (Me. 1991)). For a jury to fairly determine the quality of the evidence on which they may be making those determinations, the parties should be afforded an opportunity to test the evidence in some
way. See, e.g., Todd v. Andalkar, 1997 ME 59, ¶ 6, 691 A.2d 1215, 1217 (exclusion of evidence sought through cross-examination that defendant’s expert was a founder and insured of defendant’s medical malpractice insurance carrier was an abuse of discretion that “deprived the jury of facts needed to fairly judge the credibility of the expert testimony”); Colony Cadillac
Oldsmobile, Inc. v. Yerdon, 505 A.2d 98, 100 (Me. 1986) (“[I]t was not in the interests of justice to limit the cross-examination . . . of the plaintiff’s key witness so as to preclude impeachment of his credibility.”). The United States Supreme Court has observed that “[p]rejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them.” Alford v. United States, 282 U.S. 687, 692 (1931) (citations omitted), quoted in State v. Jutras, 154 Me. 198, 206, 144 A.2d 865, 868-69 (1958).

[¶ 12] Although cross-examination of panel members is not necessarily constitutionally required, cf. Perna v. Pirozzi, 457 A.2d 431, 455-57 (N.J. 1983) (emphasizing the power of a party to call a physician panelist as a witness at trial, court noted “[i]n view of the great weight apparently attached to the panel findings, either party must be permitted to show possible bias of a panel member”), submitting the panel’s determination to the jury as evidence while prohibiting counsel from making specific comments regarding its origins or context impinges on the litigants’ right to a fair determination of the facts by a jury. See Beeler v. Downey, 442 N.E.2d 19, 22 (Mass. 1982) (“Were such `evidence’ [of a medical malpractice tribunal determination] to be admitted and insulated from further comment by either the trial judge or opposing counsel, however, the likelihood of unfair prejudice flowing from this result might well reach constitutional limits.”) (emphasis added).[3] In

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a recent case, Barrett v. Baird, 908 P.2d 689 (Nev. 1995), the Nevada Supreme Court stated:

Since the parties are in no way precluded from impeaching the panel’s conclusion by competent evidence, or from showing that relevant evidence was not presented to the panel or from demonstrating the limited nature of the panel proceeding, we conclude that there is no valid concern that jurors will “overvalue” the panel findings. For purposes of the constitutional right to jury trial, the jury is and remains the final arbiter.

Id. at 696.

[¶ 13] In contrast, the parties in Maine can do no such thing. Appellee notes that most states have upheld the admissibility of panel determinations in medical malpractice cases. What separates Maine’s statute from all of the others is the degree of restriction imposed on Maine plaintiffs. No other state imposes all of the following restrictions on plaintiff’s counsel: no criticism of the panel findings, no explanation of the shortcomings of the process, no cross-examination of the panel members, and generally no calling into question the panel’s determination.[4]

[¶ 14] In Irish I, we attempted to cure one constitutional infirmity in the medical malpractice screening panel statute by enlarging the scope of permissible comment that could be made by the trial court regarding the panel’s unanimous findings when admitted as evidence in a medical malpractice case.[5] See Irish, 1997 ME 50,

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¶¶ 11-13, 691 A.2d at 670-71. I am now satisfied that our effort in Irish I to attempt to save an unconstitutional statute by judicial legislation was both inappropriate and ultimately unsuccessful.

[¶ 15] While I recognize the importance of stare decisis in promoting consistency and predictability in the law, this Court has also noted the “dangers of a blind application of the doctrine,” Peerless Ins. Co. v. Brennon, 564 A.2d 383, 387 (Me. 1989) (citation omitted). The doctrine of stare decisis does not require adherence to an unsuccessful attempt to save an unconstitutional statute. Because of the pervasive limitation on the ability of plaintiffs to explain or place in context the panel findings, I would hold the confidentiality provision regarding the panel proceedings unconstitutional.