The Court of Special Appeals of Maryland (“Maryland Appellate Court”), Maryland’s intermediate appellate court, ruled in its unreported opinion filed on December 31, 2018 in a Maryland medical malpractice case in which the trial judge denied the plaintiff’s motion for a mistrial that provided a path for the plaintiff to continue its case but the plaintiff chose not to and rested instead, that the plaintiff’s decision at trial served as a waiver of appellate review.
In the case the Maryland Appellate Court was deciding, the plaintiff was the personal representative of her mother’s estate that had brought a Maryland medical malpractice case against the hospital where the mother had died. The defendant hospital filed a pre-trial motion in limine which was granted by the trial judge “that no photographs could be shown to the jury without being properly identified, a proper foundation [provided] and admitted into evidence,” which precluded the daughter from showing the jury photographs that allegedly showed her mother lying in a hospital bed and also depicted skin wounds on her heel.
During the Maryland medical malpractice trial, the defendant hospital’s lawyer advised the trial judge during the lunch recess, outside the presence of the jury, that he had observed the daughter display photographs of her mother that were not admitted into evidence by holding them out on the trial table in such a way that the jurors could potentially view them as they returned from lunch. Prior to bringing the jury back into the courtroom, the trial judge warned the parties that nothing was to be shown to the jury that was not previously entered into evidence and that she would view a failure to comply with this instruction as intentional. The trial judge also specifically directed that the daughter not display anything that might be or is visible to the jury, and informed her that if she did not follow this directive, she would be held in contempt.
Later, during a bench conference, the defendant hospital’s lawyer and the trial judge observed the daughter shuffling documents around at the trial table, potentially making them visible to the jury. The trial judge then stopped the bench conference and instructed the daughter to sit in the front row of the gallery, away from any papers, stating to the daughter in front of the jury, in part, ” … I want to make sure that you don’t inadvertently show anything to the jury that’s not yet into evidence.” After the Maryland medical malpractice jury was dismissed for the day, the trial judge, once again, addressed the daughter regarding her earlier conduct, instructing her to not “blatantly disregard” her orders again.
The next day, the plaintiff’s lawyer moved for a mistrial, arguing that the Estate’s right to a fair trial had been prejudiced by the trial judge’s “castigation” of the daughter in the presence of the jury. The trial judge decided that she could not definitively determine whether the steps she took to ensure fairness and justice were not perceived in any negative way and therefore questioned the individual jurors regarding whether they saw anything on the trial table of the Estate while the lawyers were at the bench on the previous day of trial, and also questioned the jurors regarding whether anything she did or said could have interfered with the jurors’ ability to be fair to either the Estate or the defendant hospital.
All jurors, with the exception of Juror No. 1, indicated that they could remain fair and impartial. In an abundance of caution, the trial judge replaced Juror No. 1 with an alternate and proceeded with the trial, denying the plaintiff’s motion for a mistrial.
The plaintiff’s lawyer subsequently informed the trial judge that “in light of the Court’s ruling on the motion, we are not going to present any further evidence.” When asked by the trial judge if he was resting his case, he replied, “[w]e’re not going to produce any further evidence, so I assume that means we rest. And it’s based upon the Court’s ruling on the motion. We have no further evidence that we’re going to present.” The defendant hospital subsequently filed a motion for summary judgment, which was granted by the trial judge. The plaintiff then appealed.
The Maryland Appellate Court held that the Estate “acquiesced in, if not consented to,” the adverse judgment entered against it, and “the Estate cannot “question [the judgment’s] validity on appeal,” or otherwise “complain about that ruling,” because it consented to the judgment entered against it when it chose not to proffer evidence or otherwise advance its case.
Source Estate of Nancy V. Puppolo by its Personal Representative, Celeste A. Puppolo v. Sinai Hospital of Baltimore, Inc., No. 1683 September Term, 2017.
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