Mullaney v. Aude

• Decision Date: 03 June 1999
• Docket Number: No. 862,862
• Parties: James L. MULLANEY, et al. v. Betty Sue AUDE.
• Court: Court of Special Appeals of Maryland

730 A.2d 759

126 Md. App. 639

James L. MULLANEY, et al. v. Betty Sue AUDE.

No. 862, Sept. Term, 1998.

Court of Special Appeals of Maryland.

June 3, 1999.

Benjamin Lipsitz (Alan Edgar Harris, on the brief), Baltimore, for appellants.

Susan R. Green, Baltimore (Gary S. Bernstein, Towson, on the brief), for appellee.

Argued before THIEME, KENNEY and ADKINS, JJ.

ADKINS, Judge.

This case involves the adversarial use of gender bias in the discovery process. James L. Mullaney, Esq. and Allan E. Harris, Esq., appellants, appeal from the imposition, pursuant to Maryland Rule 2-433, of attorneys' fees incurred in obtaining a protective order against them. Appellants ask us to determine whether: 1) the attorneys' fee award was invalid because it was imposed after a final judgment in the underlying tort action was entered; 2) appellants' conduct during pretrial discovery warranted a protective order on grounds that it was racist, sexist, or encumbered discovery; 3) the evidence was sufficient to support the dollar amount of the award ($1,500); and 4) a procedural irregularity in the court's granting of the original protective order invalidated the subsequent fee award.

FACTS AND PROCEDURAL BACKGROUND

Betty Sue Aude, appellee, brought a tort action for fraud, negligence, intentional infliction of emotional distress, and battery against Mr. Mullaney, alleging that he infected her with genital herpes. Susan R. Green, Esq. and Gary S. Bernstein, Esq. represented Ms. Aude. Mr. Mullaney was represented by Mr. Harris and Benjamin Lipsitz, Esq. After a trial, the jury found that Mr. Mullaney negligently infected Ms. Aude with genital herpes, but that Ms. Aude was contributorily negligent. Accordingly, judgment was entered in favor of Mr. Mullaney on December 10, 1996.

Appellants' Deposition Conduct

During the course of pre-trial discovery, Ms. Aude was deposed. At the deposition, she was asked about a document that she failed to bring with her. As Ms. Aude was leaving the room to retrieve that document, Mr. Harris remarked that she was going to meet "[a]nother boyfriend" at the car. Ms. Green and Mr. Bernstein quickly told Mr. Harris that his comment was in poor taste and asked him to refrain from making further derogatory comments. The following ensued:

MR. MULLANEY: It's going to be a fun trial.

MR. HARRIS: It must have been in poor taste if Miss Green says it was in poor taste. It must have really been in poor taste.

MS. GREEN: You got a problem with me?

MR. HARRIS: No, I don't have any problem with you, babe.

MS. GREEN: Babe? You called me babe? What generation are you from?

MR. HARRIS: At least I didn't call you a bimbo.

MR. LIPSITZ: Cut it out.

MS. GREEN: The committee will enjoy hearing about that.

MR. BERNSTEIN: Alan, you ought to stay out of the gutter.

Appellants' Interaction With Experts

Following the deposition,¹ in November 1994, appellee filed a motion to require a physical examination of Mr. Mullaney and the court ordered him to submit to an exam. Specifically, he was ordered to have his blood drawn and tested at a lab at the University of Maryland School of Medicine. Pursuant to the order, Mr. Mullaney presented himself, accompanied by Mr. Harris, to Dr. Laure Aurelian, the plaintiff's expert witness in virology and the herpes simplex virus.

Apparently, his experience at the hospital was not a pleasant one. Within a week of this visit, on March 28, 1995, Mr. Mullaney wrote to James Ralls, Program Administrator of the Complaint and Quality Assurance Unit of the Office of Licensing and Certification Programs at the Maryland Department of Health and Mental Hygiene. His letter and accompanying affidavit complained about Dr. Aurelian, Dr. Shinichi Imafuku, the individual who attempted to draw blood from his arm, and the cleanliness of the facility.² In his letter, he emphasized that "what is the most disturbing is that this woman [referring to Dr. Aurelian] is referred to as `doctor'" when she "has a doctorate in philosophy." In fact, Dr. Aurelian holds a Ph.D. from Johns Hopkins University in microbiology, and specializes in the field of virology, holding the positions of Professor in the Department of Pharmacology and Experimental Therapeutics, and Director of the Virology/Immunology Laboratories, at the University of Maryland School of Medicine. Mr. Mullaney also complained that Dr. Aurelian was "using state facilities, equipment and time to prepare a ... private civil case where she is being paid as an expert witness."

In May, Mr. Mullaney complained about Dr. Aurelian to the President of the University of Maryland School of Medicine, and sent to him a copy of his letter and affidavit previously sent to Mr. Ralls. In this letter he said: "I can only re-emphasize my views and complaints against the non-medical person using the facilities of your hospital for such purposes."

Motion For Protective Order

In response to appellants' actions previously described, Ms. Aude filed a motion for a protective order on August 15, 1995. In addition to describing the behavior at the deposition, appellee alleged that appellants verbally abused her expert witness, Dr. Aurelian, by contacting her, her associates, her supervisors, and various professional and regulatory agencies in the field of medicine. It was also alleged that Mr. Mullaney knew that Dr. Aurelian was not a medical doctor because her full curriculum vitae was attached to the motion asking the court to order the blood test. Appellee also contended that appellants caused an investigation of Dr. Aurelian by Senior Counsel for the University of Maryland which caused "great embarrassment, and harassment and humiliation...." Appellee argued in the motion that Mr. Mullaney's conduct was "designed solely to harass, annoy, embarrass and intimidate Plaintiff's designated expert to preclude her from testifying." Appellee also alleged that Mr. Mullaney "made racist remarks about [Dr. Imafuku] indicating he looked like he should be working in a Chinese restaurant...." Appellee asserted that Dr. Imafuku was a medical doctor, even though not licensed in Maryland. Appellee requested the following relief in the motion:

A. That the Court order the Defendant and his family members to cease all contact with the Plaintiff and her family absent participation of all counsel.

B. That the Court order the Defendant and his counsel to cease and desist any further contact with Dr. Laure Aurelian, her associates, [and] The University of Maryland....

C. That the Court order Mr. Harris and the Defendant to refrain from further use of racist or sexist language in dealing with anyone associated with this case.

D. That the Court [s]anction the Defendant and Mr. Harris for their actions and impose a monetary [s]anction to compensate Dr. Aurelian for the endless hours of aggravation she endured in having to defend these spurious allegations.

E. That the Court [s]anction the Defendant and Mr. Harris for their actions and impose a monetary sanction to compensate Plaintiff's counsel for the hours spent responding to the unprofessional and inappropriate behavior of Defendant and counsel Mr. Harris demanding he refrain from sexually harassing the undersigned counsel and her employees, as well as numerous letters and telephone calls regarding the Complaints and harassment of [Dr.] Laure Aurelian, Plaintiff's expert.

F. That the Court Order the Defendant and Mr. Harris to pay for the attorneys [sic] fees and costs of the filing of this Motion and for the hearing of this matter.

Judge William O. Carr ruled, in a letter order, that appellants were to have no contact with the "Plaintiff's expert, the expert's employer or with any professional body or regulatory agency regarding the Plaintiff's expert" unless expressly permitted by the court. Judge Carr also prohibited appellants' contact with Ms. Aude or her family. The court reserved judgment on appellee's request for attorneys' fees.

Sanctions Hearing and Order

Judge Stephen M. Waldron presided over the jury trial. On December 12, 1996, two days after judgment was entered in the underlying tort action, Ms. Green wrote a letter to Judge Waldron requesting a ruling on her previous request for attorneys' fees made in the motion for a protective order. As a result of Ms. Green's letter, Judge Waldron held a hearing on May 13, 1997. In February 1998, the court issued a Memorandum Opinion and Order. In the order, the court explained that it excluded as a basis for an award any claimed conduct that "did not interfere with discovery or fit within the purview of activity meant to be protected by Maryland Rule of Procedure 2-403." The court determined that $1,500 was the reasonable attorneys' fees incurred in preparing the protective order and attending the hearing. It awarded $1,500 for attorneys' fees to appellee and entered judgment in that amount against Mr. Mullaney and Mr. Harris, jointly and severally. This appeal followed.

DISCUSSION

I. Background Law of Discovery and Standard of Review

The discovery process is an important and valuable process for all participants in a legal action. See U.O. Colson Co. v. Goff, 204 Md. 160, 162-63, 102 A.2d 548 (1954)

. "[A]mple discovery before trial, under proper regulation, accomplishes one of the most necessary ends of modern procedure[.]" Id. at 162, 102 A.2d 548. As former Chief Judge Murphy said for the Court of Appeals in Klein v. Weiss, 284 Md. 36, 395 A.2d 126 (1978):

One of the fundamental and principal objectives of the discovery rules is to require disclosure of facts by a party litigant to all of his adversaries, and thereby to eliminate, as far as possible, the necessity of any party to litigation going to trial in a confused or muddled state of mind, concerning the facts that give rise to the litigation.

Id. at 55, 395 A.2d 126. Further,

because `the sound and expeditious administration of justice' is served when all parties are aware of and acknowledge all `relevant, pertinent,

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