Plaintiff Attorney Legal Information CenterMaryland law is clear that a trial judge’s decision to grant a mistrial is left to the judge’s discretion. Lai v. Sagle is the rare case where the Court of Appeals of Maryland, disagreeing with the Court of Special Appeals and the trial court, reversed the trial judge because the court abused its discretion in failing to grant a mistrial.
Facts of Lai v. Sagle
In this Washington County wrongful death case, Plaintiff’s counsel in her opening said that defendant doctor had been sued five times before. Getting this kind of evidence before a jury is a Maryland malpractice lawyer’s dream. But it is just a fantasy. Without meeting one of the narrow exceptions – prior misstatements about the claims, habit (but not in the “habit of screwing up” sense), or routine practice – you can’t point to prior malpractice lawsuits as evidence the doctor breached the standard of care.
Instead, the court decided to give a “curative instruction.” The curative instructions were repeated on several occasions. The jury rendered a $131,500 verdict in favor of the plaintiff. (Sure, the victim was 88 years-old. But that is a criminally low verdict for the death of a person, even 20 years ago.)
After the jury had rendered a verdict for the plaintiff, the defendant appealed. The Maryland Court of Special Appeals held that the Washington County trial judge did not abuse his discretion because the curative instructions given by the judge were sufficient to cure the prejudice. The key to that ruling was abuse of discretion. The intermediate appellate court was not saying it would have ruled the same way. The court was just saying that a reasonable judge could have found that a curative instruction was good enough.
This was not a surprise ruling. Appellate courts give a lot of latitude to the trial judges to on this type of issues. Almost invariably, appellate courts would defer to the trial judge on these types of issues.
The doctor appeal on the question of whether a curative instruction solved the problem and, more to the point, whether the trial judge abused his discretion by failing to grant a mistrial.
Holding of Lai v. Sagle
Judge Harrell, who likes to start cases off with a bang of some sort, began the opinion like this: “Courts often are reluctant to declare bright line rules or standards. There are good reasons for this usually. In this case, we overcome that reluctance.” Essentially, he is saying “I know we don’t usually draw lines in the sand on this stuff, but we have to here.”
Judge Harrell cited in his opinion Dorsey v. Nold in which the Maryland high court held that “a physician’s inability to pass a medical board certification exam has little, if any, relevance to the issue of whether the physician complied with the standard of care required in his or her treatment of a patient.” Specifically, Judge Harrell wrote:
“A similar conclusion is warranted where, as here, the issue involves instances of past malpractice litigation implicating the defendant doctor in the case under review. There could be any number of reasons why Dr. Lai was sued, and not all, if any, of them may have been legitimate. The fact of prior litigation has little, if any, relevance to whether he violated the applicable standard of care in the immediate case. The admission of evidence of prior suits, instead of aiding the fact finder in its quest, tends to excite its prejudice and mislead it. We share the view of the dissent in the Court of Special Appeals when it observed: “I cannot conceive of a more damaging event, in a medical malpractice trial, than disclosure to the jury in opening argument that the defendant doctor had previously been sued multiple times for malpractice.”
The Sagle opinion always goes after another target for plaintiff’s malpractice lawyers: did the doctor pass his board certification exam? We go after this because it reminded the jury the doctor is hardly infallible. But Judge Harrell affirmed Maryland law that it is also not admissible to mention that the defendant doctor failed his certification exam.
Prior Bad Acts
Defense lawyers sometimes try to conflate the ban on evidence of prior lawsuits with prior bad acts. The are very different. But this evidence is also a challenge.
There is a two part test courts have used to determine the admissibility of prior accidents .First, the court must determine Plaintiff’s purpose for offering such evidence. Usually, notice of the problem is the purpose in cases where the plaintiff’s lawyer is successful in admitting the evidence.
The second step is whether the relevance and probative value outweighs any possible prejudice. This will also be judged by an abuse of discretion standard.
Resources Related to Lai v. Sagle
- Lai v. Sagle (the opinion)
- Defendant’s Motion in Limine (relying on Lai v. Sagle)
- The Law in Michigan on Prior Bad Acts in Malpractice Cases
- A look at California law on the subject
- “Fun” real life example of admissibility of prior bad acts involving Kayne West, before his marriage to Kim Kardashian unfortunately
- Maryland Personal Injury Attorney Help Center: learn more about just how you put together a real tort case