Jacob v. Kippax

• Decision Date: 04 January 2011
• Docket Number: Docket No. Ken-09-414.
• Citation: 2011 ME 1,10 A.3d 1159
• Parties: Nancy JACOB v. Jan B. KIPPAX et al.
• Court: Maine Supreme Court

10 A.3d 1159

2011 ME 1

Nancy JACOB

v.Jan B. KIPPAX et al.

Docket No. Ken-09-414.

Supreme Judicial Court of Maine.

Argued: Nov. 9, 2010.

Decided: Jan. 4, 2011.

Karen E. Wolfram, Esq., John P. Flynn, III, Esq. (orally), Daniel G. Lilley Law Offices, Portland, ME, for Nancy Jacob.

Alan G. Stone, Esq. (orally), Stephen B. Wade, Esq., Adam R. Lee, Esq., Skelton, Taintor & Abbott, Auburn, ME, for Jan B. Kippax and Androscoggin Oral and Maxillofacial Surgeons, P.A.

Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, and GORMAN, JJ.

SILVER, J.

[¶ 1] Jan B. Kippax, an oral surgeon, treated Nancy Jacob in December of 2002. Jacob filed a claim alleging that Kippax was negligent in that treatment and failed to obtain informed consent before he performed a biopsy. After a trial, the jury returned a verdict finding that Kippax and his business Androscoggin Oral & Maxillofacial Surgeons were not negligent and the Superior Court (Kennebec County, Jabar, J.) entered a judgment on the verdict. We affirm the judgment.

I. FACTS AND PROCEDURE

[¶ 2] On review, we view the evidence in the light most favorable to the jury's verdict. See Reardon v. Larkin, 2010 ME 86, ¶ 4, 3 A.3d 376, 377. Nancy Jacob had a tooth removed in late 2002, and consulted Dr. Stuart Cohen to obtain a partial denture. Cohen referred Jacob to Kippax, telling her that he would not provide the denture until she had been evaluated by Kippax. Cohen's referral document stated that Jacob complained of pain and swelling.

[¶ 3] Kippax examined Jacob, suspected an infection, and prescribed antibiotics. When Jacob returned to the office eleven days later, Kippax noted that she had new symptoms and that her gums had a "pebbly" texture. He told her that he neededto conduct a biopsy of the site. Jacob signed a consent form for a biopsy procedure, but she testified that Kippax told her that the risks listed in the form did not apply to her procedure.

[¶ 4] Jacob testified that the biopsy was a terrifying procedure. However, she also testified that during the surgery "I was out of it." After the biopsy, Jacob claimed to suffer from ongoing swelling, pain, nerve damage, and bruising. She went to several doctors in the months following the procedure, one of whom confirmed that she had swelling, bruising, and reported numbness, although he saw nothing unusual about the surgical site. A neurologist who treated Jacob testified that he believed she had an injury to her infraorbital nerve in the area under her left eye branching down toward her lip.

[¶ 5] Kippax testified that he did not specifically recall the procedure he performed, but explained, based on his notes, what the procedure involved. Experts testified for Jacob and for Kippax giving opinions on whether the surgery and informed consent procedures violated applicable standards of care.

[¶ 6] The medical malpractice prelitigation screening panel that heard Jacob's claim pursuant to 24 M.R.S. §§ 2851-2859 (2009), found that Kippax's actions did not deviate from the applicable standards of care, and did not proximately cause the injuries. Jacob subsequently filed a complaint in Superior Court against Kippax and his business.

[¶ 7] Prior to trial, Kippax filed a motion in limine to exclude evidence of a prior Board of Dental Examiners disciplinary action against him and subsequent consent agreement with him. The disciplinary action and agreement resulted from a number of complaints filed against Kippax. The agreement admitted that he had repeatedly failed to document procedures, removed teeth not designated by the referring dentist, discharged patients without proper evaluation, allowed the unlicensed practice of dentistry by assistants, and failed to reassess patient complaints of pain. The Board imposed a fine, a probationary period on Kippax's license, and a partially-stayed suspension.

[¶ 8] The court granted the motion to exclude the evidence in Jacob's case-in-chief, but indicated that evidence of the disciplinary action could be allowed to impeach evidence of habit or practice. The court stated:

First of all, the prejudice associated with that far outweighs probative value. Now, whether or not—I'm not allowing any evidence of his prior disciplinary action and consent decree except and unless during the trial in the context of his habit and what his practice is you can show that he's been disciplined for something that he says is a habit that he does all the time, and that is to prove that he doesn't do it all the time. So it's like rebuttal for a specific course of conduct that he's relying on.

The court later repeated its point, giving an example:

[H]e makes an admission [in the consent agreement] that he has repeatedly ... failed to properly document dental procedures postoperatively, then he gets up on the stand, hypothetically, and makes a statement, I always do this, I always document it, he is subject to cross-examination, didn't you admit in a proceeding that you don't always do that?

[¶ 9] Jacob also filed a motion in limine to exclude all habit evidence pursuant to M.R. Evid. 406. The court denied the motion, stating that "[h]abit evidence may arise during the trial" and that its admissibility depended on the foundation laid.

[¶ 10] The court conducted a jury trial over seven days in April and May of 2009. Following the jury instructions, Jacob objectedto the wording of an instruction regarding the screening panel, but did not want the instruction repeated with different wording. During Kippax's closing, Jacob objected that Kippax's attorney had left visible an enlargement of the screening panel decree while he was discussing the verdict form. The court instructed the attorney not to display the enlargement unless he was referencing it, and told him he could not compare it to the verdict form. Jacob objected again later in the argument. The court noted that the enlargement had been in view for less than five minutes and instructed the attorney to keep it turned away from the jury.

[¶ 11] The court also instructed counsel that they should not comment on the panel findings beyond the scope of the court's instructions. Kippax's attorney stated in his closing:

[Y]ou also have a piece of evidence and that is the medical malpractice screening panel and how they dealt with it and their question was whether the acts or omissions complained of deviated from the applicable standard of care and obviously we know already that they said; no, no, no to that, including a dentist member.

He made a similar statement regarding proximate cause. After the closing arguments, Jacob moved for a mistrial on grounds that Kippax's attorney had improperly commented on the panel findings and presented an enlargement of the findings, and had additionally mischaracterized the law regarding informed consent. The court denied the motion.

[¶ 12] The jury returned a verdict finding no negligence by Kippax. Jacob filed a motion for a new trial based on Kippax's comments regarding, and display of, the panel findings, the exclusion of the disciplinary action, and an alleged error in the informed consent instruction. The court denied the motion. Jacob timely appealed.

II. DISCUSSION

[¶ 13] Jacob raises five challenges to the judgment of the Superior Court. We find no error, and affirm the judgment.

A. Exclusion of the Disciplinary Action and Consent Agreement

[¶ 14] The court granted a motion in limine by Kippax and excluded, pursuant to M.R. Evid. 403,¹ evidence of the disciplinary action and consent agreement from the Board of Dental Examiners. "We review a trial court's evidentiary rulings on relevance and prejudicial effect for clear error and abuse of discretion, respectively," according "wide discretion" to the trial court. State v. Allen, 2006 ME 20, ¶ 17, 892 A.2d 447, 453. Jacob bears the burden of proving an abuse of discretion. Todd v. Andalkar, 1997 ME 59, ¶ 7, 691 A.2d 1215, 1218.

[¶ 15] Preliminarily, Jacob appears to argue that the court acted improperly by ruling on the motion in limine at all because we have cautioned that a Rule 403 balancing often requires waiting for the evidence to develop at trial. See State v. Patterson, 651 A.2d 362, 367 (Me.1994). Here, the court stated several times that it would reconsider the ruling if the disciplinary action became relevant during trial testimony. The court did not err in ruling on the motion in this fashion. See State v. Pinkham, 586 A.2d 730, 731 (Me.1991) ("[An evidence] ruling does notbecome final ... until the evidence is offered at trial.").

[¶ 16] Further, the exclusion of the evidence in Jacob's case-in-chief was not an abuse of discretion. To be admissible, evidence must be relevant, and may not be evidence of prior wrongful acts "to show that the person acted in conformity therewith." See M.R. Evid. 404(b). Jacob argues that the evidence is relevant and admissible because it was not offered to show conformity, but rather: (1) to impeach both Kippax and the defense expert by showing bias and lack of credibility; (2) for the admissions that it contained; (3) to show absence of mistake or motive; or (4) to rebut habit evidence.

[¶ 17] Jacob argues that the evidence is relevant for impeachment because the prior discipline shows Kippax's motive to deny negligence in this case, because his medical license and reputation would be at risk. Kippax's interest in this case, however, is self-evident. Further, it is not apparent how the evidence would show bias by the expert. Cf. Irish v. Gimbel ( Irish I ), 1997 ME 50, ¶¶ 24-25, 691 A.2d 664, 674 (holding that evidence of a prior lawsuit against the expert for conduct similar to that alleged against the defendant is relevant because it shows the expert's interest in testifying that the conduct was within the standard of care).

[¶ 18] Additionally, while the statements contained in the consent agreement are admissions under M.R. Evid. 801(d)(2), they are not relevant because they do not deal with or relate to the conduct in this case. See...