Lai v. Sagle
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Lai v. Sagle No. 72, September Term, 2002 CIVIL PROC EDUR E - TRIALS - MOTIONS FOR MISTRIAL - ABUSE OF DISCRETION EVIDENCE - RELEVANCE - PRIOR ACTS, CRIMES & WRONGS Where plaintiff s counsel in medical malpractice case, in opening statement, made reference to inadmissib le and highly prejudicial fact that defen dant had b een nam ed as a def endant in five prior medical malpractice actions in other states, the trial court abused its discretion when it fa iled to grant d efendan t s motion fo r a mistrial. IN THE COURT OF APPEALS OF MARYLAND No. 72 September Term, 2002 ALBERT LAI v. BETTY SAGLE, PERSONAL REPRESENTATIVE OF THE ESTATE OF THELMA GIFFEN, ET AL. Bell, C.J. Eldridge Raker Wilner Cathell Harrell Battag lia, JJ. Opinion by Harrell, J. Filed: March 10, 2003 I. Courts often are reluctant to declare brightline rules or standards. There are good reason s for this usually. In this case , we ov ercom e that relu ctance . On 27 August 1999, Respondent, Betty Sagle, individually and as personal representative of the estate of her mother, filed a medical malpractice action in the Circuit Court for Washington County. The defendants were Albert Lai, M.D., and Washington County H ospital Asso ciation. Wa shington C ounty Hospital Association penultimately was dismissed as a defendant, and the case was tried against Dr. Lai only. The jury returned a verdict in the amount of $131,500 in favor of Respondent in her capacity as personal representative. Dr. Lai timely noted an appeal to the Co urt of Spe cial Appe als, raising a sing le question: Did the trial court abuse its discretion by not granting defendant s motion for mistrial after plaintiff s counsel remarked during opening statement that defendant had been sued five times for malpractice in another state? In an unrep orted opinio n, the Cou rt of Special Appeals, by a divided panel, affirmed the judgment of the Circuit Court. On 13 Augus t 2002, Petitio ner here, D r. Lai, sough t a writ of certiorari from this Court, which petition was granted . Lai v. Sagle , 371 Md. 261, 808 A.2d 806 (20 02). 1 1 The petition framed the issue as: This is an action for alleged medical malpractice. In her (contin ued...) II. While the alleg ations o f the cla imed m alpractic e are co mplex , the facts relevant to the issue before us are not. At some point in time - the exact date of which was a matter of dispute between the parties - the gallbladder of Thelma Giffen, then age 88, became inflamed acut ely. Ms. Giffen was taken to the Washington (County) Hospital Center on 26 November 1996, where she came under the care of Dr. Lai. On 3 December 1996 , Dr. Lai removed Ms. Giffen s gallbladder, which was found to be gangrenous. Two weeks later, Ms. Giffen died as a result of multi-system organ failure. At the inception of the jury trial, the attorney for Dr. Lai objected to a statement (not directly involving the issue befo re us) made during Sa gle s coun sel s openin g statemen t.2 A 1 (...continued) opening statement, Plaintiff s counsel told the jury: [W ]hen Dr. Lai was practicing in Michigan for eight years, he was sued five times for malpra ctice. Def endant s co unsel imm ediately objected and moved for a m istrial, which w as denied. S hould this Court gra nt certiorari giv en that the C ourt of Special Appea ls failed to follow the relevant case law and, in so doing, has sanctioned the deliberate and wrongful conduct of Plaintiff s co unsel? 2 The parties made no motions in limine regarding any anticipated eviden tiary questions. Thus, unaware until the objection was lodged during plaintiff s opening statement that any such problem existed, the trial judge suggested that Sagle s counsel make only an oblique reference to the topic of debate - the status of Dr. Lai s hospital privileges at various points in his professional career - in her opening statement and that he would rule on any objection lodged later in the trial when such proposed evidence was offered. The judge said: I m not going to sit here and read a deposition right now while... I would suggest that you move forw ard and somehow (contin ued...) 2 bench conference followed. During that bench conference, another issue arose as to whether mention could be made by Sagle s counsel of prior malpractice suits against Dr. Lai. The trial judge stated: Well, I will deal with it at some time during the lunch recess because w e re not goin g to get this kind of testimony until clearly after lunch, probably even into tomorrow. Why don t you pull the requisite parts of the deposition? I ll look at it. Sagle s co unsel said okay and re sumed h er opening statement. [Sagle s Counsel]: [3] Dr. Lai moved to Hagerstown in August of 1994 at the invitation of his friend, Dr. Su. He never looked for any other opportunities for other practice enviro nmen ts. By the way, wh en Dr. Lai was practicing in Michigan for eight years, he was sued five times for malpractice. [Lai s Counsel]: Objection. [The Cou rt]: Sustained. [Sagle s C ounsel]: From A ugust 9 4 throu gh No . . . [The Court]: The jury is instructed that opening statem ents are not evidence and it s only a matter or manner in which counsel 2 (...continued) in your opening say that his credentials will be fully developed on the stand because I don t know what s going to be admissible and what s not goi ng to be admiss ible. I can t tell you that right now without seeing the deposition. Although the topic of this initial evidentiary dust-up between the attorneys did not involve the appellate issue of concern to us, how the trial judge handled it presaged for trial counsel how similar objections during opening statement would be handled. 3 Sagle s ap pellate coun sel is not the sa me perso n as her trial co unsel. 3 can describ e to the ju ry what h e or she intends to prov e. It s not in evidence at this point an d is not to be c onsidered at this point. We have not taken evidence. [Lai s Counsel]: Your Honor, may I approach? [The Cou rt]: All right. [Lai s Counsel]: Your Honor, I m going to move for a mistrial at this point. I think that she s po lluted the waters and she s done it deliber ately. I would have . . . I would h ave mov ed this in limine had I kno w that she was goin g to bring this up in opening statement. She s alluded to two improper things. One, she clearly just went right on the reco rd and polluted the w aters in this case. Th ere is not w ay that anything can be redeemed about it at this p oint. I m goin g to mov e for a mistria l. [Sagle s Co unse l]: Your H onor, I ca n absolu tely, positively do this when D r. Lai is up on the stand. T hat is part of my crossexamination. I can abso lutely bring up e very single time he s been sued for malpractice and what the outcome of it was, not getting into particulars , but can (ina udible). [La i s Couns el] made no objections [at deposition] whatsoever when I was questioning him about this. And in fact, I ve got to tell you Dr. Lai volunteered this information about the infection control stuff at the hospital. I didn t ask it. He volunteered. [Lai s Counsel]: Has nothing to do with the malpractice. [The Court] How does . . . How are prior malpractice actions relevant to this case? [Sagle s Counsel]: It shows that he has this ongoing phenomena of neglige nt care and treatment. [The Court]: My recollection, I ll look at the rules, my recollection is that you have to show habit, modus operandi, or some other re gular co urse. O ther. . . other actions are not admissible. 4 [Sagle s Counsel]: What could be more regular than being sued five times in the course of an eight-year p ractice in Ba ttle Creek, Michigan? [The Court]: I don t think it s admissible. On the other hand, I will look at the rules, but why are we getting into all of these things that are potentially admissible or inadmissible in opening ? W hy is th is necess ary? [Sagle s Coun sel]: I can go right on through your Honor. [The Court]: All right. Mo tion for mistrial is denied. I don t think it s pollu ted. I told the jury that the . . . they re not to consider it at th is point. [Lai s Counsel]: At this point, I mean at this point, their first witness is going to b e [Dr.] U dekwu . If she s takin g this approach that she s going to ask . . . I am of the opinion and always of the belief that prior malpractice cases are not admissible and are not . . . have no relevance and no basis in the case. Udekw u has fou r medical m alpractice ca ses that have been filed ag ainst him . Am I then permitted to ask Dr. Udekwu about all these malpractice cases? It would be totally irrelevant and would g et into the low . . . a trial of the lowest order. And I think th at she s a lready . . . she has already done. She s planted the seed that caused en ough trou ble and the problem is that now we have to be on the defensive about explaining why these . . . Some of these were totally frivolous malpractice cases. [The Court]: No you don t. No you don t. You can trust the jury to do its job. And its job is to consider the evidence and I m going to remind them of that at various times through the proceedings, that evidence is only what they hear from the witness stand. An d clearly if it does not come in throughout the trial, you can certainly address that in closing argument to the jury and say, By the way, [Respondent s counsel] told you . . . did she pro ve it? Th e question is whether she has or h asn t. [Lai s C ounse l]: My ob jection is still . . . 5 [The Court]: Overruled. The trial continued. On three subsequent occasions the trial judge instructed the jury generally, but without specific relation to Sagle s counsel s reference in her opening statement to Dr. Lai s prior alleged malpractice experiences, that its decision must be based upon the evidence presented in the case and that the statements and arguments of counsel were not evidence. The jury returned its verdict on 5 October 2000, finding that Dr. Lai was negligent in his treatment of Mrs. Giffin and awarded $131,500 in damages. The majority opinion of the Court of Special Appeals observed: An attorney should not mention in opening statement facts that counsel knows are irrelevant and hence inadmissible. And, the fact that Dr. Lai had been sued five times previously had no relevance, whatsoever, to the issue of whether he was guilty of negligence in his trea tment o f Ms. G iffen. The fact that a doctor is sued for m alpractice ob viously does n ot demon strate that he was ever guilty of malpractice. Counsel s remark had at least the potential to poison the minds of the jurors against the defenda nt. We concur with appellant that plaintiffs co unsel, in the opening s tatement, deliberately and wrongfully attempted to prejudice th e jury against D r. Lai in [her] o pening state ment. Nevertheless, the majority of the intermediate appellate court panel held that the trial judge did not abuse his discretion in den ying Dr. Lai s motion for a m istrial, holding that the curative instructions given by the trial judge were sufficient to cure the prejudice. The dissent, alluding to Md. Rule 5-404(b)( Evidence of other...w rongs or ac ts is not admissible to prove the character o f a person in order to sh ow action in conform ity 6 therewith. ), 4 reasoned that a mistrial was warranted under the facts of this case, pointing out: Occasio nally cases arise in which a trial court s denial of a motion fo r mistrial c onstitute s an abu se of d iscretion . Med. Mut. Liab. In s. Soc y of Ma ryland v. Evans, 330 Md . 1, 4 (1993). In my view, this is such a case. When a motion for mistrial is denied, and the trial judge gives an instruction designed to cure the prejudice arising from the facts that improper ly have been disclosed to the jury, we must determine whether the evidence was so prejudicial that it denied the [litigant] a fair trial; that is, whether the damage in the form of prejudice to the [litigant] transcended the curative effect of the instruction. Id. at 19 (quoting Rainville v. S tate, 328 Md. 398, 408 (1992), in turn quoting Kosma s v State, 316 Md. 587, 594 (1989)). In my opinion , the damag e to appellant from app ellee s counsel s announcing to the jury in opening statement that appellant had been sued for malpractice five times transcended the curative effect of the trial court s instructions o n this point. III Before considering the issue presented in the certiorari petition, we first address Responden t s Motion to Dismiss, filed as part of her brief. Respondent contends that Petitioner waived any right to challenge in an appellate forum Respondent s Counsel s opening remarks by failing to renew his motion for mistrial on any of the three later occasions that the trial judge reminded the jury generally that opening and closing remarks and statements or arguments of counsel were not eviden ce, nor did P etitioner renew his 4 The dissent in the Court of Special Appeals, by the use of the introductory signal See, cited to Ru le 5-404(b ) as authority clear ly supporting th e propositio n that [w]ellsettled law precludes admission of evidence of this nature [i.e., prior malpractice litigation] under t he pro pensity ru le. 7 objection or motion at the close of all of the evidence. Respondent argues that these failures constitute a waiver o f the presen t appellate issu e, and asks us to dismiss this case. We shall deny the motion. Maryland R ule 3-517 states, in relevan t part: (c) Objections to other rulings or orders. For purposes of review by the trial court or on appeal of any other ruling or order, it is sufficient that a party, at the time the ruling or order is made or sought, makes known to the court the action that the party desires the court to take or the objection to the action of the court. The grounds for the objection need not be stated unless these rules expressly provide otherwise or the court so directs. If a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection at that time does not constitute a waiver of the objection. (d) Formal exceptions unnecessary. A formal exception to a ruling or order of the cou rt is not necessary.(emphasis added ). Petitioner here requested a mistrial after noting his ob jection to Responde nt s counsel s pertinent op ening statem ent remark, and, m ost importan tly, persisted in his objection despite the trial court s proposed remedy of giving a series of supposed curative instructions. He continued to object until cut-off by the trial judge, signaling the end of discussion on that issue at this trial. Petitioner did all that was required, under the circumstances, to prese rve the is sue fo r our co nsidera tion. Hill v. State, 355 Md. 206, 21826, 734 A.2 d 199, 20 6-210 (19 99)( W hen, as here , howev er, (1) the motion is not und uly delayed and timeliness is not raised as a defense in the trial court, (2) the trial court does not consider timeliness, even as an alternative ground, but denies the motion on the ground that 8 no further relief is called for, (3) no prejudice to the court or either party is indicated, and (4) the appellate court determines that the complaint underlying the motion is valid, a complaint that the m otion wa s imp rope rly denied should be addressed on appeal and not found unpreserv ed. )(emp hasis in original); Farley v. Allstate Ins. Co., 355 Md. 34, 57-58, 733 A.2d 1014, 1026 (1999)(finding that to preserv e an issue f or appeal, co unsel is requ ired to object and request specific relief ); Lattisaw v . State, 329 Md. 339, 343-44, 619 A.2d 548, 550 (1993)(counsel s disagreement with the trial court s view of an objection was sufficient to make known counsel s objection to action of the court in order to preserve the issue for appeal). See Anderson v. Litzenberg, 115 Md. App. 549, 568-70, 694 A.2d 150, 159-60 (1997)(discussing at length the requirements for objections and p reserving issues for appe al). IV We now turn to Petitioner s a ssertion that the trial court abused its discretion by failing to grant Petitioner s motion for a mistrial after the refe rence to the prior malpractice actions against Petitioner was published by Respondent s counsel to the jury during her opening statement. Rule 5-40 4 ( Char acter eviden ce not adm issible to prov e conduc t; exceptions; other crimes )(b) of Title 5 ( Evidence ), Chapter 400 ( Releva ncy And Its Limits ) of the Marylan d Rules sta tes, in relevant p art: (b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to sho w ac tion in co nformity t here with . It ma y, however, be admissible for o ther purposes, such as proof of motive, opportunity, intent, preparation, common scheme or plan, know ledge, identity, or ab sence of m istake or acc ident. 9 As yet, it has not been determined whether Rule 5-404(b) applies to civil cases. This issue was argued previously to this Court in Lewin Realty III, Inc. v. Brooks, 138 Md. App. 244, 771 A.2d 466 (20 01), cert. granted, Brooks v. Lewin Realty III, Inc., 365 Md. 266, 788 A.2d 382 (2001), which case has not been decided. We need not resolve this question here. To the extent that 5-404(b) may apply, such a determination merely would reinforce our opinion infra. To the extent that it may not apply, it is of no material moment to the present case, as Rules 5-4025 and/or 5-4036 certainly d o. Petitioner s arg ument, in su m, is that Responden t s act of alerting the jury to Dr. Lai s involvement as a defen dant in prior m alpractice suits was so prejudicial that Dr. Lai was denied any opportunity for a fair trial, and therefore the trial court abused its discretion by failing to grant Petitioner s motion for a mistrial. 5 In Med. M ut. Liab. Ins. S oc y of Rules 5-402 states: Except as otherwise provided by constitutions, statutes, or these rules, or by decisional law not inconsistent with these r ules, all relevant eviden ce is adm issible. Evidenc e that is not relev ant is not admissible. 6 Rule 5-403 states: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the damage of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence. 10 Maryland v. Evans, 330 Md. 1, 19-24, 622 A.2d 103, 112-114 (1993)(some internal citations omitted) , we reviewe d genera lly the prop er an alysis for a motion f or mistria l gen erall y: Whether to order a m istrial rests in the discretion of the trial judge, and appellate review of the denial of the motion is limited to whether there has been an abuse of discretion. Where the motion is denied and the trial judge gives a curative instruction, we must determine whether the evidence was so prejudicial that it denied the defenda nt a fair trial; that is, w hether the damage in the form of prejudice to the defendant transcended the curative effect of the instruction. * * * * * Judge Cole, writing for this Co urt in State v. Cox, 298 Md. 173, 468 A.2d 3 19 (19 83), explained that "[w]e have allowed [inquiry about prior bad acts] to be conducted when the trial judge is satisfied that there is a reasonable basis for the question, that the primary purpose of the inquiry is not to harass or embarrass the witness, and that there is little likelihood of obscuring the issue on trial." Id. at 179, 4 68 A.2 d at 322 . * * * * * To permit counsel to obtain a ruling on whether proposed proof will be admitted, and in order to avoid mistrials, contempora ry practice recognizes the motion in limine. See Prout v. Sta te, 311 Md. 348, 356, 535 A.2d 445, 449 (1988) ("[T]he real purpose of a motion in limine is to give the trial judge notice of the mov ant's position so as to avoid the introduction of damaging evidence which may irretrievably infect the fairness of the trial."). . . . No one wants to waste the investment of parties, witnesses, couns el, jurors , and trial court by having the proceedings result in a mistria l. The wa y to avoid that res ult is the motion in limine, particularly where, as here, an earlier trial had aborted because of improper questioning by the same attorney. It has been observed that the primary purpose of an opening statement is to apprise, with reasonable succinctness, the trier of fact of the questions involved in the case it is about to hear, and what the parties expect to prove, so as to prepare the trier of fact for the evidence 11 to be adduced. Clarke v. S tate, 238 Md. 11, 19, 207 A. 2d 456, 460 (1965). Where a trial has progressed only so far as opening sta tements when a prejudicial error occurs, the waste of the investm ent of p arties, w itnesses, counsel, jurors, and trial court by having the proceedings result in a mistrial is minimal when compared with the possible taint on the overall proc eedi ngs. The refo re, if remarks mad e by an attor ney in an opening statement include facts that plain ly are inad missible and hig hly prejud icial to an other p arty, a mistrial ordinarily would be one of the principal remedies considered, upon motion b y the advers ely affec ted party. 7 V We must determ ine wheth er, in plaintiff s opening statement in a medical malpractice trial, bringing to the attention of the jury incidences of prior malpractice actions against the 7 See Attorney Grievance Comm n v. Alison, 349 Md. 623, 627-30, 709 A.2d 1212, 1213-15 (1998); Clarke, 238 Md. at 20, 20 7 A. 2d at 460-61 (1965); Derb y v. Jenkins, 32 Md. App. 38 6, 397, 363 A.2d 96 7, 974 (19 76); Harding v. Deiss, 3 P.3d 1286, 1290-91 (Mont. 2000); White v. Consolidated Freightways Corp., 766 So. 2d 1228, 1232-33 (Fla. Dist. Ct. App. 2000); Sawicki v . Kim, 445 N .E.2d 6 3, 66-67 (Ill. App.1983). Other responses, including g enuinely cura tive instruction s in a jury trial, also may be appropriate. See, e.g., Maryland Rules of Professional Conduct, Rule 3.4(e) ( A law yer shall not, in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible e vidence. ... ); See also Maryland Rule 1-3 41 ( Bad faith unjustified proceeding )( In any civil action, if the court f inds that the c onduct of any party in maintaining or defending any proceeding was in bad faith or without substantial justification the court may require the offending party or the attorney advising the conduct or both of them to pay to the adverse party the costs of the proceeding and the reasonable expenses, including reasonable attorney s fees, incurred by the adverse party in opposing it. ) Neither Petitioner nor the Circuit Court considered the possible applicability of the latter provisions to the relevant facts of this case (nor do we sugge st they we re requ ired to). See also, e.g., Persichini v. William Beaumont Hosp., 607 N.W.2d 100 (Mich. C t. App. 1999). 12 defendant doctor is error. If it is error, flowing from such a conclusion is the related question of whether the prejudice worked thereby requires the grant of a mistrial, upon timely motion, or whether it may be cured by an appropriate instruction or series of instructions. To resolve these questions, we shall employ the standards associated with the doctrine of relevance. Those standards are stated succinctly in Myers v. Celotex Corp., 88 Md.App. 442, 594 A.2d 1248 (1991 ), cert. denied, Fibreboard Corp. v. Myers, 325 Md. 249, 600 A.2d 41 8 (1992), to wit: Evidence, to be admissible, must be both relevant and mate rial. Evidence is material if it tends to establish a proposition that has legal significance to the litigation; it is relevant if it is sufficiently probative o f a propo sition that, if established, w ould have legal significance to the litigation. Evidence is relev ant, therefore, if it has any tendency to make the existence of a material fact more or less probable than it would be without the evidence, and a fac t is material if it is of legal co nsequen ce to the determination of the issues in the case, which are dependent upon the pleadings and the substantive law. * * * * * The general rule in this State is that all evidence that is relevant to a material issue is admissible except as otherwise provided by statutes or by rules app licable in Maryland courts. Relevant evidence may be excluded if the trial court [] believes that its probative value is substantially outweighed by the dangers of unfair prejudice. Myers, 88 Md.App. at 454, 594 A.2d at 1254. See Md. Rule 5-40 1; Snyder v . State, 361 Md. 580, 590-92, 7 62 A.2d 125, 131 -32 (2000 ); Smallwood v. Bradford, 352 Md. 8, 26-27, 720 A.2d 586, 595 -96 (1998). 13 In negligence cases, we consistently have held that evidence of prior acts of alleged negligence are substan tially prejudicial in na ture, and is on ly admissible for limited purposes, similar in natur e to thos e circum stances recogn ized in R ule 5-4 04(b), supra at 9-10. See Loke, Inc. v. Sonnenleiter, 208 M d. 443, 4 47-51 , 118 A .2d 509 , 511-1 3 (195 5). In no instance, however, is such evidence admissible to prove the negligence alleged in the immedia te case. For example, in Nesbit v. Cumberland Contracting Co., 196 Md. 36, 41-43, 75 A.2d 339, 341-42 (1950), we observed: In civil cases involving negligence there can be no question of motive or intent and the relevancy of prior convictions of traffic violations can hardly be maintained, unless upon the broad ground that they show a predisposition or a negligent character which Wigmore seems to adopt. But it has long been established in Maryland th at such testimony cannot supply proof of negligence in the case on trial. In Baltimor e & O. R. C o. v. State, to Use of Black, 107 Md. 642, 655, 69 A. 439, 444, 72 A. 340, it was held error to permit questio ns as to the pla intif f's "habits with reference to being a ca reful and cautious driver or otherw ise." See also American Straw Board Co. v. Smith, 94 Md. 19, 50 A. 414. In General Exchange Insurance Corp. v. Sherby, 165 Md. 1, 7, 165 A. 809, it was held that a conviction for reckless driv ing, grow ing out of th e same ac cident as the civil suit, was properly excluded as tending to confuse the ju ry. To the same effect, see Eisenhower v. Baltimore Transit Co. 190 Md. 528, 59 A. 2d 3 13, 319. In Davis v. Gordon, 183 Md. 129, 132, 36 A. 2d 699, 156 A. L. R. 1109, it was held that questions as to whether the defendant had a driver's license at the time of the accident, and whe ther his license had been revoked on account of a previous accident, were rightly excluded as tending to prejud ice and in flam e the jury. See Smith v. Hercules Co., 204 Md. 379, 385, 104 A.2d 590, 593-94 (1954)(Evidence of other accidents, p articularly where the circumstances are not identical, have little probative 14 value and are calculated to prejudice the jury). The majority in the C ourt of Sp ecial App eals in the present case similarly observed: In Cumberland v. Turney, 177 Md. 297 (1930), the Court stated the prevailing rule of law that evidence of prior similar occurrences is only admissible for certain limited purposes but not for the purpose of showing negligence on th e part of the accused nor to prove the cause of a specific occurrence. Similarly, in Salisbury Coca-Cola Bottling Co. v. Lowe, 176 Md. 230 (1939), the Court held that when separate occurrences are independ ent and the re is no nece ssary evidentiary connection between them, the admis sion of evidence of prior occurrence instead of ai ding the ju ry in the solution of the subject of inqu iry, tended to excite its prejudice, and mislead it. Id. at 241 (citing Wise v. A ckerm an, 76 Md. 375 (1892); Simes v. American Ice Co., 109 Md. 68 (1908)). In Smith v. Hercules Co., 204 Md. 37 9 (1954), the Cou rt held that evidence of other accidents, particularly where the circumstances are not identical, have little probative value and are calculated to prejudice the jury. Id. at 385 (citations omitted). Such evidence also is not probative of a physician s professional qualifications, or lack thereof. We have considered previously a situation where a plaintiff in a medical malpractice trial attempted to call into question the defendant physician s qualifications by improper ly introducing irrelevant and prejudicial material. In Dorsey v. Nold, 362 Md. 241, 250-51, 765 A.2d 79, 84 (2001), we observed: . . . the general rule is that "a physician's inability to pass a medical b oard certifica tion exam has little, if any, releva nce to the issue of whether the physician complied with the standard of care required in his or her treatment of a patient." Gipson v. Younes, 724 So. 2d 53 0, 531-32 (Ala. Civ . App. 1998). See also Camp bell v. Vinjamuri, 19 F.3d 1274, 1276-77 (8th C ir. 1994); Douglas v. University Hosp., 150 F .R.D. 165, 171 (E.D. Mo. 1993); Jackson v. Buchman, 338 A rk. 467 , 996 S .W.2d 30, 34 15 (Ark. 1999); Williams v. Memorial Medical Center, 218 Ga. App. 107, 460 S.E.2d 55 8, 560 (G a. Ct. App . 1995); Beis v. Dias, 859 S.W.2d 83 5, 838-39 (M o. Ct. App. 1993). We agree with that view. There could be many reasons why a physician failed all or part of a board certification examination; the fact of failure makes it neither more nor less probable that the physician complied with or departed from the applicable standard of care in the diagnosis or treatment of a particular patient for a particul ar cond ition. A similar conclusion is warranted where, as here, the issue involves instances of past malpractice litigation implicating the defendant doctor in the case u nder review . There co uld 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 find er in its quest, ten ds to excite its prejud ice and m islead it. 8 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 8 Nor does the fa ct that an indiv idual has be en sued m ultiple times constitute habit or routine practice under Rule 5-406, a rule which is patterned after the corresponding federal rule. Weil v. Seltzer, 873 F.2d 1453, 1459-61 (D .C. Cir. 1989)(Doctors treatment of five former patients doe s not constitu te habit as en visioned by federal R ule 406); Glusaskas v. Hutchinson, 544 N.Y.S.2d 323, 324-25 (App. Div., 1989)(Evidence of other successful surgeries is excluded in medical malpractice cases. The general rule in New York is that evidence of a person's habitual conduct under similar circumstances in respect to using care is inadmissible for the purpose of raising an inference that he exercised the same amount of caution on the occasion when the injury in question was sustained. Such evidence is excluded for the reason that it raises too many collateral issues and, also, becau se it borders to o closely on character evidenc e, which is not adm issible in civil cases.). 16 malpra ctice. Admitting purported similar acts in e vidence is s imilar to admitting evidence of prior arrests in criminal trials. The reason evidence of prior arrests is exclu ded from criminal trials is that the occurrence of an arrest is not proof of the commission of a crime; in the same way, prior lawsuits are not proof of medical malpractice then or now. Evidence of prior arre sts is inadmissible in criminal trials to prevent the jury from concluding that the defendant has a propensity for committing crimes; following the same reasoning, similar acts of prior malpractice litigation should be excluded to prevent a jury from concluding that a doctor has a propen sity to com mit me dical m alpractic e. 9 Our review of cases from other jurisdictions indicates that in those instances where this issue has been addressed squarely, courts have found consistently that evidence of prior malpractice is either inadmissible as irrelevant or excessively prejudicial. See Laughridge v. Moss, 294 S.E.2d 672, 674 (G a. Ct. App. 1982); Herbstre ith v. deBakker, 815 P.2d 102, 109 (Kan. 19 91); Cerniglia v. French, 816 So.2d 319, 322-25 (La. Ct. A pp. 2002 ); Tramontin v. Glass, 668 So.2d 1252, 1256-57 (La. Ct. App. 9 We point out that such evidence ordinarily would not be proper even for purposes of impeachment or as rebuttal e vidence, u nless the de fendant d octor injected this topic into the trial, for example, by testifying that he or she had never been sued for malpractice. Because such ne gative evidence is itself inadm issible, the nee d to impea ch or rebu t it never arises. See Blue Circle Atlantic, Inc. v. Falcon Materials, Inc., 760 F. Supp. 516, 522 (D. Md. 19 91)(Evid ence of a lack of co mplaints is inadmissible, because its probative value, if any, is far outweighed by the prejudicial effect of such evidence .); Williams v. Naidu, 309 S.E.2d 686 (Ga. C t. App. 1983)(Do ctors testimony that they had never been sued before inadmissa ble as it is tantamount to saying that they had never been negligent as medical practitioners, from which it is inferable that they were not neg ligent in treating appellant.). See also supra n. 8. 17 1996); Persichini v. William Beau mont H osp., 607 N.W.2d 100, 105-106 (Mich. Ct. App. 1999); Jones v. Tranisi, 326 N.W.2d 190, 192 (Neb. 1982); Folgate v. Brookhaven Memorial Hosp. 381 N.Y.S.2d 384, 386 (Ap p. Div. 1976). VI Rule 5-10 2 ( P urpo se an d constru ction ) of the M aryland Rules governing Evidence states: The rules in this Title shall be constru ed to secure fairness in administration, eliminate un justifiable expense and delay, and promote the grow th and deve lopment o f the law o f evidenc e to the end that the truth m ay be ascertaine d and pro ceedings ju stly determined. One means of insuring that judicial proceedings are not unjustly determined, fairness of administration is fostered, and the rules governing the admissibility of evidence made predictable and consistent in their application, is through the use of brightline rules in appropriate circumstances. The a dvantage of a brigh tline rule lies in its certainty and uniformity in application , though at s ome p rice. As we observed in DeBusk v. Johns Hopk ins Ho sp., 342 Md. 43 2, 438-39, 677 A .2d 73, 76 (1996): Objective standards and bright-line rules . . .are the very keys to pred ictab ility, in the sense that everyone is treated in the same manner and everyon e know s or can disc over the rule s in advance of their application. By their very nature, though, such rules and standards cannot make exceptions for every scenario which might arise. F irst, no lawm aker could construct a statute which foresaw each individual application of the statute and exception which m ight presen t itself. In addition, a statute which attempted to address no t only the rule bu t all its possible exceptions would likely lose its valuable characteristic of 18 pred ictab ility, because it w ould be tha t much more sub ject to manipulation in a courtroom than a statute whic h merely stated the rule and any major exceptions. Moreover, bright-line rules by definition cannot depend upon a factfinder's case-by-case assessm ent of th e subje ctive kn owled ge of a person . Unless clearly admissib le for some limited purpose under the rubric of Rules 5-404 and 5403, we can conceiv e of no ins tance wh ere makin g a jury aware in a malpra ctice trial, whether in statements of counsel or through proffered evidence, of prior malpractice litigation against a defenda nt docto r wou ld be pe rmissib le. See n.10, supra. As such, the potential downside of a brightline rule appears absent from the circumstances before us. We therefore hold that mention by the plaintiff in opening statement in a medical malpractice jury trial of prior malpractice litigation brought by third parties against the defendant doctor is unduly a nd high ly prejudic ial and o rdinarily sh all result, upon proper objection and motion, in a mistrial. 10 No curative instruction or instructions of which we can conceive, and certainly not as given in this case, is sufficient to undo the taint inflicted upon the proceedings by such conduct or occurrence. In those v ery rare instances where the existence of prior malpractice actions might be relevant and the proponent desires to mention the matter in opening statement, the only proper procedure for determining threshold relevancy is a motion in limine mad e and ruled on initia lly outside the p rese nce o f the jury. In the case sub judice, there can be no doubt that Respondent s trial counsel erred regarding this issue. Th e record sh ows that th e trial judge inf ormed h er that he w ould rule 10 See supra n. 7. 19 on the admissibility of evidence of prior malpractice actions against Dr. Lai later in the trial. In response, Respon dent s counsel imm ediately disclosed the information to the jury in her opening statement. W e agree w ith the major ity opinion of th e Court of Special A ppeals when it observ ed that R espon dent s c ounse l s cond uct wa s [deli berate] and [w rongf ul]. We agree also, however, with the dissent when it concluded that courts sh ould not allo w this kind of delibe rate and w rongf ul cond uct to be nefit the offen ding pa rty. We agree further with the dissent in the intermediate appellate court when it observed that [b]y tolerating deliberate wrong-doin g like appellee s counsel s statement to the jury in this case, the majority decision sim ply encourages attorneys to ignore the rules of evidence, and, without fear of significant conse quences, seize upon every chanc e to preju dice the oppos ing side . The trial judge abused his discretion in not granting Petitioner s motion for a mistrial. The judgment is reversed, and a new trial ordered. JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REVERSE THE JU DGM ENT O F THE C IRCUIT COURT FOR WASHINGTON COUNTY AND TO REMAND THE CASE TO THE C IRCUIT COURT FOR A NEW TRIAL; COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDENT. 20
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