Irish v. Gimbel

• Decision Date: 18 March 1997
• Docket Number: CUM-96-35
• Parties: Russell IRISH, et al. v. Gregory GIMBEL. Docket:
• Court: Maine Supreme Court

Page 664

691 A.2d 664

1997 ME 50

Russell IRISH, et al. v. Gregory GIMBEL.

Docket: CUM-96-35.

Supreme Judicial Court of Maine.

Argued Jan. 7, 1997.

Decided March 18, 1997.

Gerald F. Petruccelli (orally), Petruccelli & Martin, Portland, Paul R. Dumas, Jr. (orally), Peter J. Kaynor, Joyce, Dumas, David & Hanstein, P.A., Mexico, C. Donald Briggs, Cloutier & Briggs, P.A., Rockport, for plaintiffs.

Christopher D. Nyhan (orally), Penny Littell, Preti, Flaherty, Beliveau & Pachios, L.L.C., Portland, for defendant.

Andrew Ketterer, Attorney General, Peter J. Brann, Asst. Atty. Gen. (orally), Augusta, for amicus curiae State.

Richard L. O'Meara, Murray, Plumb & Murray, Portland, for amicus curiae Maine Trial Lawyers Association.

Before WATHEN, C.J., and GLASSMAN, CLIFFORD, RUDMAN, and DANA, JJ.

WATHEN, Chief Justice.

¶1 Plaintiffs Russell and Laurie Irish, husband and wife, and their minor child, Shane, appeal from an adverse judgment entered in the Superior Court (Cumberland County, Saufley J.) on a jury verdict in their medical malpractice action against defendant, Gregory Gimbel, M.D. On appeal plaintiffs present several constitutional challenges to the prelitigation screening process required for claims of medical malpractice by 24 M.R.S.A. § 2851-2859 (1990 & Supp.1996). Although we uphold the constitutionality of mandatory screening, we conclude that the court's application of section 2857(1) ¹ in this case, requiring admission of the panel's findings "without explanation", violated plaintiffs' constitutional right to a jury trial. Accordingly, we vacate the judgment. In order to assist the parties and the trial court, we also address those evidentiary rulings challenged in plaintiffs' appeal and defendant's cross-appeal that are likely to recur in a new trial.

¶2 The procedural history and the facts presented at trial may be summarized as follows: Defendant, a physician practicing obstetrics, delivered Shane Irish on May 15, 1987, at a hospital in Brunswick. Nearly two years later, on March 16, 1989, plaintiffs filed a notice of claim, pursuant to 24 M.R.S.A. § 2903 (1990 & Supp.1996), alleging negligence in the course of the delivery resulting in a brachial plexus palsy of Shane's right upper arm along with "potential audiological deficiencies and esotropia." A prelitigation screening panel was appointed ² and the parties engaged in prehearing discovery until August of 1991. After a hearing held in October of 1991, the three-member screening panel unanimously ruled that defendant's acts or omissions "did not constitute a deviation from the applicable standards of care." ³

¶3 Plaintiffs then proceeded with this action in the Superior Court alleging that Shane Irish suffered physical and mental injuries proximately caused by defendant's negligence. ⁴ In May of 1993, before trial, plaintiffs filed a second notice of claim alleging that defendant's negligence resulted in a brain injury in addition to the brachial plexus injury. Plaintiffs alleged the existence of a brain injury that they had not been aware of and that was evidenced by recent neurological tests. They contended that the brain injury was caused by a deprivation of oxygen when Shane was stuck in the birth canal. On defendant's motion to dismiss, the court (Lipez J.) found that the brain injury claim presented a new theory of negligence that plaintiffs failed to present to the prelitigation screening panel. Applying res judicata principles, the court held that the panel's determination on the first claim barred a second claim. The court left open the possibility that, at the trial, plaintiffs could present evidence of brain injury if related to the theory of negligence set forth in their first notice of claim.

¶4 Before trial, plaintiffs moved for permission to present testimony with respect to the brain injury and requested a jury instruction that the negative findings of the screening panel could not be considered in assessing defendant's liability for that injury. The trial judge determined that the brain injury was not related to the theory of negligence considered by the screening panel and denied the motion.

¶5 The court also denied plaintiffs' pretrial motions challenging the constitutionality of the screening process. Plaintiffs sought the exclusion of the findings of the panel from evidence or, in the alternative, an instruction that the findings should be afforded less weight than any other evidence in the case. At trial, the panel findings were admitted as evidence, and the court made the following preliminary remarks to the jury:

It is important for you to understand that you are not bound by the findings of the panel. You are the final decision makers in this case. However, in your deliberations at the close of this case, you may consider those findings as you would any other evidence that may be presented in this trial. You may give those findings whatever weight you find is appropriate.

The court restricted counsel to "comments that do not go essentially beyond my comments" and prohibited counsel from informing the jury that their ability to comment on this particular piece of evidence was restricted. The court permitted defendant to display an enlarged copy of the finding to the jury on a 3' X 4' poster and to refer to the panel as a "neutral panel," but denied defendant's request to be permitted to identify the panel members or their professions. ⁵ At the conclusion of the trial, the court provided the following instructions with reference to the panel finding:

Also in evidence in this case are the findings of the pre-litigation screening panel. I remind you you are the final decision-makers in this case. The panel findings are not binding upon you. You may consider them with all of the other evidence that has been introduced at this trial.

The jury found no negligence and plaintiffs now appeal from the judgment entered in favor of defendant.

I. The Constitutional Challenges

¶6 In attacking the constitutionality of the prelitigation screening panel statute, plaintiffs bear the heavy burden of overcoming our presumption that the statute is constitutionally valid. They must demonstrate convincingly that the statute conflicts with the Constitution. State v. McGillicuddy, 646 A.2d 354, 355 (Me.1994). All reasonable doubts must be resolved in favor of the constitutionality of the statute. Portland Pipe Line Corp. v. Environmental Improvement Commission, 307 A.2d 1, 11 (Me.1973). Moreover, if a constitutional infirmity is proven, and the statute is susceptible of more than one interpretation, "we must adopt an interpretation, if one there be, which will render it constitutional." Id.

A. Right to a Jury Trial

¶7 Plaintiffs contend that the statute violates their right to a trial by jury as secured by the Maine Constitution:

In all civil suits, and in all controversies concerning property, the parties shall have a right to a trial by jury, except in cases where it has heretofore been otherwise practiced....

Me. Const. art. I, § 20. A party has a right to a jury trial in all civil actions unless it is affirmatively shown that jury trials were unavailable in such a case in 1820. DesMarais v. Desjardins, 664 A.2d 840, 844 (Me.1995). ⁶ Although plaintiffs presented their case to a jury, they argue that the statute and the court's instructions interfered with the jury's fact-finding function and effectively deprived them of their right to a trial by jury. They contend that the mandatory admission of unanimous findings "without explanation" prevents effective impeachment of the findings and results in juror deception, thereby hindering the jurors' ability to properly weigh the evidentiary significance of the findings. They claim the right to impeach the findings of the panel by informing the jury of the procedural and evidentiary flaws of the panel process through examination of the panel members and argument.

¶8 The issue may be simply stated. Is the statutory screening process, as applied in this case, inconsistent with the constitutional right to a jury trial? We have stated that a litigant's right to a jury trial, in general, means the right "to have a determination made by the jury" on material questions of fact. Peters v. Saft, 597 A.2d 50, 53 (Me.1991) (upholding a cap on tort damages). Similarly, the United States Supreme Court has stated that the right to a jury trial mandates "that the ultimate determination of issues of fact by the jury be not interfered with". In re Peterson, 253 U.S. 300, 309, 40 S.Ct. 543, 546, 64 L.Ed. 919 (1920). Unquestionably, however, the rules of evidence and trial procedures are not immutable, and the bounds of permissible interference are a question of degree.

¶9 In its seminal decision in Peterson, the Supreme Court rejected a Seventh Amendment challenge to a court order appointing an auditor to investigate facts, hear witnesses, and file a report expressing the auditor's opinion on disputed issues of fact. The Court held that the admission of the auditor's report would not unduly interfere with the jury's determination of the facts. "The parties will remain as free to call, examine, and cross-examine witnesses as if the report had not been made." Id. at 311, 40 S.Ct. at 546. ⁷ The Court observed that the right to a jury trial does not "require that old forms of practice and procedure be retained ... nor does it prohibit the introduction of new rules of evidence." Id. at 300, 40 S.Ct. 543. The Court also noted that in Meeker v. Lehigh Valley R.R. Co., 236 U.S. 412, 35 S.Ct. 328, 59 L.Ed. 644 (1915), it held that a statute making an auditor's report prima facie evidence in a jury trial was a "legitimate exercise of legislative power over rules of evidence and in no wise inconsistent with the constitutional right of trial by jury." Peterson, 253 U.S. at 311, 40 S.Ct. at 546. The Meeker Court stated:

This provision only establishes a rebuttable presumption. It cuts off no defense,...