DiLeo v. Nugent

• Decision Date: 01 September 1990
• Docket Number: No. 644,644
• Citation: 592 A.2d 1126,88 Md.App. 59
• Parties: Francesco B. DiLEO v. Catherine D. NUGENT. ,
• Court: Court of Special Appeals of Maryland

Page 59

88 Md.App. 59

592 A.2d 1126

Francesco B. DiLEO v. Catherine D. NUGENT.

No. 644, Sept. Term, 1990.

Court of Special Appeals of Maryland.

July 29, 1991.

Michael R. Smith, Washington (Herbert Better, Zuckerman, Spaeder, Goldstein, Taylor & Better, Baltimore, William W. Taylor, III, Leslie M. Berger and Zuckerman, Spaeder, Goldstein, Taylor & Kolker, Washington, D.C., on the brief), for appellant

LaVonna Vice (Marvin Ellin and Ellin & Baker, on the brief), Baltimore, for appellee.

Argued before BISHOP, GARRITY, and GEORGE W. BOWLING (Specially Assigned), JJ.

BOWLING, Judge.

This appeal stems from a medical malpractice action brought by appellee, Catherine D. Nugent. Appellee claimed to have suffered post traumatic stress disorder as a result of improper drug treatment and sexual contact with her psychiatrist, appellant, Francisco B. DiLeo. A Health Claims Arbitration (HCA) panel determined appellant was negligent and awarded compensatory and punitive damages. Appellee rejected the award and prayed a jury trial in the Circuit Court for Baltimore City (Heller, J., presiding). The jury found appellant liable for negligence and intentional misrepresentation. They awarded appellee $50,000 for past and $150,000 for future medical expenses and $500,000 for non-economic damages. The trial court denied appellant's motions for judgment notwithstanding the verdict, a new trial and remittitur.

We shall affirm.

BACKGROUND

Appellee, Catherine D. Nugent, is a certified clinical practitioner of group psychotherapy and group psychodrama. She holds a Bachelor of Arts degree in mental health counseling and a Master of Science degree in applied behavioral science.

Appellant is a psychiatrist who maintains a private practice of psychoanalytically oriented therapy. He has conducted research approved by the U.S. Food and Drug Administration and has published works concerning the use of psychedelic drugs in therapy.

Appellee began treatment with appellant on December 21, 1981, and participated in private therapy sessions twice a week until mid-1986. Appellee testified that the therapy became the priority in her life, that she never cancelled a session, and that appellant's approval was crucial to her. Psychiatrists, testifying as expert witnesses for appellee In the summer of 1985, appellee's therapy had reached what clinically is termed "a therapeutic impasse". According to expert testimony, when this occurs, the patient becomes "bogged down and tongued-tied" and is unable to verbalize feelings she has for her therapist. Appellee asked appellant if MDMA would be beneficial to her. MDMA, or "ecstasy", is an illicit psychedelic drug. He suggested they consider the use of the drug in the future. Appellee told appellant that she had access to the drug, and he indicated it was preferable that she obtain the drug herself.

explained that "transference" ¹ occurred in the patient-therapist relationship.

According to appellee's testimony, appellant indicated in December, 1985, that the time was right for an "all day experimental session" using MDMA. On February 21, 1986, after arriving at appellant's home at 9:00 a.m., appellee ingested the MDMA pill she had received from her own sources. As the drug took effect, she described feeling disoriented, light-headed, confused and upset. Appellee and appellant lay on a mat together, and appellant began caressing and fondling appellee. At one point, she requested appellant to touch her sexually. She testified that later he gave her tryptamine, commonly referred to as "white smoke", to inhale because the drug she had taken needed a booster.

Later in the afternoon, when appellee expressed her agitation and distress about her sexual contact with appellant, he explained that he had been trying to "modify a negative introject" of hers and that what he had done was a "way of partial fulfillment of [her] oedipal wishes". At trial, one of appellee's experts countered appellant's rationalization Appellee testified that she suffered a panic attack shortly after the drug session and contacted appellant. She testified that he advised her to write down her experiences. She began writing a journal. Over the next few months, appellee composed an 800 page journal. At one point, she made a photocopy and gave it to appellant. She testified that later she repossessed it and destroyed both the copy and her original.

for his treatment technique when the expert testified that to do anything of a physical nature with a patient is totally unacceptable, counter-therapeutic, and forbidden by the American Psychiatric Association.

Following the drug session of February 21, 1986, appellee began having difficulty functioning in her normal daily routine at home and at work. She testified that she considered suicide. Witnesses testified that she became withdrawn and anxious.

She continued in her regular therapy session with appellant. Our review of appellee's testimony reveals that appellant's conduct during these sessions was, to say the least, questionable. Appellee testified that she and appellant lay on the floor together during therapy sessions and that he sometimes touched her sexually. On one occasion, when appellee arrived for her session, there was a pornographic movie showing on appellant's television and he appeared "bleary eyed" and was "walking funny".

Appellee testified that appellant scheduled a second drug session with her for July 1, 1986. Appellee's therapist at the time of trial, Dr. Lois Love, testified that Sansert ² was administered at that session. Appellee testified that she reacted negatively to this drug which caused shaking, crying, confusion and fear.

On October 14, 1986, she went to appellant's home for her scheduled session. During that session, appellee testified that she and appellant engaged in sexual intercourse. Distraught over the events of that session, and her relationship with appellant in general, appellee terminated all contact with the appellant.

Appellee testified that her life has changed as a result of the care she received from appellant. She has terminated her practice as a psychodramatist. Appellee's experts testified that it is unlikely she will be able to resume her career as a mental health therapist. Her physicians have diagnosed her as suffering from post-traumatic stress disorder ³ and anxiety neuroses. They recommended regular and continuing therapy, which she was undergoing at the time of trial.

Appellant did not testify on his behalf at trial; nor did appellee call him during her case-in-chief. Appellant relied instead on testimony he had given in deposition and before the HCA panel.

The jury found appellant liable for negligence and for willful and deliberate misrepresentation. They found that appellee was not contributorially negligent. This appeal followed.

DISCUSSION

I.

Appellant contends that the trial court committed four errors relating to jury instructions. As we review appellant's argument, we rely on Maryland Rule 2-520(c) which states The court may instruct the jury, orally or in writing or both, by granting requested instructions, by giving instructions of its own, or by combining any of these methods. The court need not grant a requested instruction if the matter is fairly covered by instructions actually given.

A.

First, appellant contends that the trial court erred in giving the "missing witness" ⁴ instruction as a consequence of appellant's decision not to testify at trial. We find no merit to this contention.

Contrary to appellant's assertion, his testimony would not have been cumulative. Cumulative evidence is a waste of time because it merely repeats previously undisputed testimony. McLain, Maryland Practice, Sec. 403.1 (1987); Drug Fair v. Smith, 263 Md. 341, 355, 283 A.2d 392 (1971). Appellant's version of his treatment of appellee, even though it may have been repetitive of appellee's testimony, would have provided the jury with evidence against which to gauge appellee's testimony.

When a party in a civil case refuses to take the stand to testify as to facts peculiarly within his knowledge, the the trial court or jury may infer that the testimony not produced would have been unfavorable. The unfavorable inference applies, however, only where it would be natural under the circumstances for a party to speak, call witnesses or present evidence. Brooks v. Daley, 242 Md. 185, 194, 218 A.2d 184 (1965).

The events which transpired at the psychotherapy sessions are clearly within appellant's peculiar knowledge. He was in the unique position of being the only other person with any first-hand knowledge of the therapy sessions. In light of the accusations made and the aspersions cast by appellee, we believe it would have been natural for the appellant to offer his account of the therapy sessions.

Appellant declares that the "missing witness" instruction was incorrect because appellee had the opportunity to call appellant as her witness. Appellant's argument is misplaced. This court has said that a missing witness instruction is improper when a witness is equally available to both sides. Hayes v. State, 57 Md.App. 489, 494-495, 470 A.2d 1301 (1984), quoting Graves v. U.S., 150 U.S. 118, 121, 14 S.Ct. 40, 41, 37 L.Ed 1021 (1893). This corollary to the general rule, however, has been applied in cases in which the uncalled witness is not a party. Jacobson v. Julian, 246 Md. 549, 229 A.2d 108 (1966); Yuen v. State, 43 Md.App. 109, 403 A.2d 819 (1979), cert. denied, 286 Md. 756 (1980). Here, appellee had no duty to elicit testimony from appellant who, by definition, was an adverse witness and a party. The use of the "missing witness" instruction was not in error.

B.

Second, appellant contends that the trial judge's instruction concerning destruction of evidence was incorrect. We disagree.

Appellee testified that she destroyed the journal which she kept during the final nine months of her relationship with appellant and gave...