Morris v. Sloan, K

• Citation: 698 A.2d 1038
• Decision Date: 06 August 1997
• Docket Number: No. K,K
• Parties: Dale A. MORRIS, et al. v. Allen SLOAN, et al. no-96-823.
• Court: Supreme Judicial Court of Maine (US)

Page 1038

698 A.2d 1038

1997 ME 179

Dale A. MORRIS, et al. v. Allen SLOAN, et al.

No. Kno-96-823.

Supreme Judicial Court of Maine.

Argued June 12, 1997.

Decided Aug. 6, 1997.

Michael Feldman (orally), Elizabeth A. Burns, Theodore H. Irwin, Jr., Brunswick, for plaintiffs.

Daniel Rappaport (orally), Elizabeth A. Olivier, Preti, Flahetty, Beliveau & Pachios, L.L.C., Portland, for Aroostook Medical Center.

Valerie Stanfill (orally), Lawyers Assistance Group, Auburn, Jack H. Simmons, Jeffrey Rosenblatt, Berman & Simmons, P.A., Lewiston, for Allen Sloan & Richard Price.

Before WATHEN, C.J., and ROBERTS, GLASSMAN, and LIPEZ, JJ.

LIPEZ, Justice.

¶1 The Superior Court (Knox County, Marsano, J.) granted a motion filed by the plaintiffs Dale and Dallas Morris pursuant to Maine Rule of Civil Procedure 72(c) ¹ to report this case for our determination of questions of law involved in the court's denial of their motion in limine filed in a medical malpractice action. In that motion the plaintiffs sought to exclude from evidence at the trial the unanimous findings of a prelitigation screening panel due to the alleged bias of the attorney panel member. The defendants assert that the report was improvidently granted. We agree and discharge the report.

I.

¶2 The facts have been submitted by stipulation. The medical malpractice action, filed in 1993, addresses the plaintiffs' claim that Dale Morris suffered severe brain damage as a result of the defendants' negligence in 1986. That action has been consolidated with another lawsuit in which the plaintiffs allege legal malpractice on the ground that their original attorneys failed to commence the medical malpractice action within the applicable statute of limitations. In June 1995 the court (Marden, J.) determined that pursuant to the Maine Health Security Act, 24 M.R.S.A. §§ 2851-2859 (1990 & Supp.1996), ² the medical negligence issues had to be submitted to a prelitigation screening panel before any other issues, including the applicability of the statute of limitations, could be determined. ³

¶3 The Act requires that each prelitigation screening panel include an attorney. ⁴ In December 1995 the panel chair advised the parties that she had selected an attorney to serve on the panel and gave them the opportunity to file objections to his participation. The plaintiffs twice asked whether the attorney or his law firm engaged in physician malpractice defense work and twice were assured by the chair that they had no conflict of interest.

¶4 In January the chair scheduled the panel hearing for April 5. On or about April 1 she notified the parties that the attorney she had selected would not be able to serve and gave them the name of a second attorney who was willing to serve. When that day or the next the plaintiffs pointed out that the second attorney's law firm had previously represented them in a workers compensation case, he was excluded as a panel member. On April 3 the plaintiffs received a message from the panel chair indicating that she was attempting to secure the panel service of a particular attorney or of one of the other attorneys at his law firm. In response, they telephoned the chair to find out the proposed panel member's identity and the nature of his practice. The chair did not return the call. On arriving at the hearing, two days later, the plaintiffs learned the attorney panel member's identity and that he did physician defense work in medical malpractice cases. The hearing resulted in the three-member panel's unanimous decision that the defendants did not deviate from the applicable standard of care and that none of the acts or omissions complained of proximately caused the alleged injury.

¶5 Within several days the plaintiffs learned that the attorney panel member recently had solicited legal business from the defendants' insurers. The plaintiffs asked the panel chair to set aside the panel findings given this information, and proposed that the parties waive a second panel hearing and proceed to trial. The chair responded that she did not have authority to vacate panel findings based on an alleged appearance of conflict by a panel member, and reiterated that she screened panelists only "for actual conflicts." The plaintiffs subsequently filed in the Superior Court both a complaint alleging medical negligence and a motion in limine to exclude the panel findings from evidence on grounds that the constitution of the panel was in violation of 24 M.R.S.A. § 2852 and Superior Court Rule 10(d)(iii). After a hearing, the court denied the motion, concluding that the panel was constituted appropriately pursuant to the statutory requirements, and that the plaintiffs had waived their opportunity to challenge the attorney panel member by participating in the hearing without raising any objection prior to its commencement.

¶6 The plaintiffs filed a motion pursuant to M.R.Civ.P. 72(c) requesting that the court report to this Court the "question of law whether the appearance of bias of a [p]anel [m]ember and the fact that [they] did not know nor had any reason to know of the circumstances giving rise to said appearance of bias of said [p]anel [m]ember renders inadmissible the [p]anel findings." After a hearing the court granted the report and invited us to clarify the meaning of the statutory provision that directs panel chairs to "inquire as to any bias on the part of a panel member or as requested by any party," thereby raising issues that necessarily would involve analysis of the waiver claim.

II.

¶7 "A report pursuant to Rule 72(c) is an exception to the final judgment rule and should be used sparingly." Luhr v Bickford, 661 A.2d 1141, 1142 (Me.1995) (citation omitted). Although the trial court makes a preliminary determination of the propriety of its report, we retain "the power to make our own independent determination whether in all circumstances of a given case our decision on a report would be consistent with our basic function as an appellate court and we would not be cast in the role of an advisory board." Sirois v. Winslow, 585 A.2d 183, 184-85 (Me.1991). In making that determination, we assess whether the question of law reported is "of sufficient importance and doubt to outweigh the policy against piecemeal litigation." Swanson v. Roman Catholic Bishop, 692 A.2d 441, 443 (Me.1997); see Toussaint v. Perreault, 388 A.2d 918, 920 (Me.1978) (discharging report where all issues could have been presented in one appeal taken after conclusion of the litigation, thereby avoiding "the 'piecemeal' approach which we deplore[ ]"). We also consider whether "a question raised on report might not have reached the Law Court in the normal course of the appellate process"--that is, whether the issue might not have to be decided at all because of other possible dispositions. Sirois, 585 A.2d at 185. Although Rule 72(c) does not require us to do so, we may take into account whether "our decision will in at least one alternative dispose of the action...." Swanson, 692 A.2d at 443. Finally, in the interests of judicial economy and the preservation of our appellate function, we must consider whether our involvement in a case prior to the entry of a final judgment will encourage piecemeal litigation in cases involving similar circumstances.

¶8 We conclude that the report was improvidently granted for several reasons. First, although issues of bias are always important to the integrity of the decision-making process, the bias issues generated here are grounded in an unusual factual situation. These unusual circumstances lessen the importance of our decision as a source of general law. See State v. Placzek, 380 A.2d 1010, 1014 & n. 9 (Me.1977) ("The word 'importance' leads us to consider the significance of a Law Court decision on the reported question of law, not only to the parties but also to other members of the public," including "considerations of efficient judicial administration, ... precedential value or other consequences going beyond the immediate private parties.")

¶9 Moreover, the questions reported may never reach us in the normal course of litigation. A judgment in the plaintiffs' favor would render these issues moot; so, in one alternative, would a disposition based on the statute of limitations issue. ⁵ On the other hand, our decision of the questions reported would not dispose of this action. Barring settlement, the case would have to proceed to trial whether the panel findings were to be admitted or excluded from evidence or, in the latter instance, whether a second panel hearing were to be held.

¶10 Finally, just as we must reject unnecessary piecemeal litigation in any one action, we must avoid encouraging it in a particular type of case. Due to the mandatory role of prelitigation screening panels in medical malpractice actions, 24 M.R.S.A. § 2851, the circumstance of a unanimous panel finding and its evidentiary consequence at trial will be a recurring one. By deciding the issues reported here we would signal to other litigants who perceive irregularities in panel proceedings and who fail to win relief in the trial court that they, too, should seek a report. We could thereby be drawn inexorably into the trial process and all the related tactical considerations in such cases. To foster such excessive use of the report mechanism would indeed serve to "transform the Law Court into an advisory board for the direction of the business of the court at nisi prius, a function the Law Court cannot assume." Fidelity & Casualty Co. v. Bodwell...