Osztreicher v. Juanteguy, 77

CourtCourt of Appeals of Maryland
Writing for the CourtArgued before MURPHY; BELL
Citation659 A.2d 1278,338 Md. 528
PartiesIstvan OSZTREICHER v. Juan M. JUANTEGUY. ,
Docket NumberNo. 77,77
Decision Date01 September 1994

Marvin Ellin (Jack D. Lebowitz, Michael P. Smith, Ellin & Baker, all on brief), Baltimore, for appellant.

E. Dale Adkins, III (E. Scott Conover, Anderson, Coe & King, all on brief), Baltimore, for appellee.


BELL, Judge.

We granted certiorari in this case to consider whether a medical expert witness may be required to produce his or her tax and financial records for use by the opposing party for impeachment purposes. Regrettably, the response of the party calling the expert medical witness to adverse rulings by the trial court prevents our reaching this most interesting issue. We shall hold, instead, that the election of Istvan Osztreicher, the appellant and plaintiff below, to refrain from presenting a case was an acquiescence in, or consent to, the adverse judgment subsequently entered against him. Accordingly, we shall dismiss the appellant's appeal.

This is a medical malpractice action arising out of alleged negligently performed vascular surgery, which resulted in permanent and irreversible ischemic spinal cord and neurological injury, including a permanent loss of bowel and bladder control. As required by Maryland Code (1974, 1995 Repl.Vol.), § 3-2A-04 of the Courts and Judicial Proceedings Article, it was filed initially in the Health Claims Arbitration Office. 1 The appellant named as defendants, Juan M. Juanteguy M.D., the appellee, Ramon Vasquez, M.D., and Sinai Hospital of Baltimore. 2 While the matter was pending in Health Claims Arbitration, pursuant to § 3-2A-04, the appellant named three expert medical witnesses, including Dr. Stewart Battle, whose withdrawal as a witness is at the heart of this case. Prior to Dr. Battle's deposition being taken, however, the appellant informed the appellee that the appellant "[did] not intend to call Dr. Battle forward at the Health Claims Arbitration hearing." Thereafter, the parties agreed pursuant to § 3-2A-06A, to waive health claims arbitration, whereupon, the case was filed in the Circuit Court for Baltimore City. 3

The appellant did not thereafter provide the appellee with any additional designation of experts, although there was correspondence from the appellee to the appellant on the subject. Appellant's letter to the appellee asking the appellee to provide two dates if he intended to depose Dr. Battle prompted a motion by the appellee to exclude Dr. Battle's testimony. The circuit court denied that motion. Dr. Battle thereafter was deposed by the appellee three days prior to trial. During the deposition, he was asked the amount of income he derived from forensic activity, to which he gave an approximate figure. Appellant interposed no objection to that line of inquiry. Two days later, one day before trial, the appellee served Dr. Battle with a trial subpoena, commanding him to produce [a]ny and all written documents, records, notes, correspondence, tax forms, and/or 1099 forms containing, referring to or reflecting income or monies received in the last two years for medical/legal and/or forensic activities, including but not limited to the review of medical records on behalf of a patient or health care provider or appearance at deposition, arbitration and/or trial on behalf of a patient and/or health care provider.

The appellant immediately filed a motion to quash the trial subpoena.

After a jury had been empaneled and opening statements made, the trial court considered the appellant's motion to quash. After hearing argument, the court denied the motion. It ruled:

I'm going to order, Dr. Battle, that you produce the income tax returns and the 1099 forms, or what of your other supporting documentation there is, to verify the income received from forensic activities.

I will propose to review that in camera. I don't know whether it's the anticipation by the defense that they would want to introduce these documents, but it seems to me that certainly Mr. Ellin is correct that defense can inquire about those areas, but without seeing the backup and support documentation, I think the cross-examination would become somewhat without course and without verification.

So I'm going to order, Mr. Ellin, that Dr. Battle produce the documents requested. I will review those.

Objecting most strenuously to the court's ruling, the appellant moved for a mistrial, asserting, "effectively--effectively--I'm not able to put on this case and that's tantamount because Dr. Battle has told [me] this morning if his and his wife's privacy are infringed upon, he will not testify in this case." He concluded that, "unless you grant a mistrial, ... you'll be granting a summary judgment for failure of going forward. Without Dr. Battle, I cannot present this case." The mistrial motion was denied, the court concluding "not [to] grant a mistrial in this situation because your witness does not wish to disclose and you do not wish to proceed, asking him to testify." 4

The appellant elected not to present any evidence. He explained:

I don't have a case to present. My case has been decimated by the witness' refusal under the terms that the Court has set to go forward as a matter of personal principle of the witness and his view that his rights are violated.

He also stated:

It would be folly of the highest degree for me to believe that I have any chance of properly representing the plaintiff with one witness who is retired from surgery at the present time.

I have to deal with the reality of some 30 years' experience in trial, most of it in medical malpractice, to know that I'm not going to help my client. I'm going to spend a lot of time and money for naught.

There is no way in this world I can go forward with one expert in this case and he, that one expert, retired from active surgical practice.

So your Honor will simply have to, as I'm sure you will anyway, take whatever or make whatever ruling you want and this is going to be--and I suppose it was inevitable that the Court of Appeals would have to deal with this issue sooner or later.

Since the appellant rested his case without presenting any evidence in support of his case, the trial court granted the appellee's motion for judgment.

The appellant noted an appeal to the Court of Special Appeals. We issued a writ of certiorari on our own motion, prior to that court's consideration of the case.

It is well settled in Maryland that "[t]he right to appeal may be lost by acquiescence in, or recognition of, the validity of the decision below from which the appeal is taken or by otherwise taking a position which is inconsistent with the right of appeal." Rocks v. Brosius, 241 Md. 612, 630, 217 A.2d 531, 541 (1966). See Franzen v. Dubinok, 290 Md. 65, 68, 427 A.2d 1002, 1004 (1981); Bowers v. Soper, 148 Md. 695, 697-98, 130 A. 330, 330-31 (1925); Stewart v. McCaddin, 107 Md. 314, 318-19, 68 A. 571, 573 (1908). Applying this principle, it has been held that a litigant "cannot, knowing the facts, both voluntarily accept the benefits of a judgment or decree and then later be heard to question its validity on appeal." Suburban Development Corp. v. Perryman, 281 Md. 168, 171, 377 A.2d 1164, 1165 (1977). See Kneas v. Hecht Company, 257 Md. 121, 123-24, 262 A.2d 518, 520 (1970); Dubin v. Mobile Land Corp., 250 Md. 349, 353, 243 A.2d 585, 587 (1968); State, Use of Shipley v. Walker, 230 Md. 133, 137-38, 186 A.2d 472, 474 (1962); Turner v. Washington Suburban Sanitary Commission, 221 Md. 494, 505, 158 A.2d 125, 131 (1960); Armour Fertilizer Works v. Brown, 185 Md. 273, 278-280, 44 A.2d 753, 755-56 (1945). This rule has also been applied to consent judgments. See Globe American Casualty Company v. Chung, 322 Md. 713, 716-17, 589 A.2d 956, 957 (1991); Banegura v. Taylor, 312 Md. 609, 615, 541 A.2d 969, 972 (1988); Long v. Runyeon, 285 Md. 425, 429-30, 403 A.2d 785, 788 (1979); Mercantile Trust Company v. Schloss, 165 Md. 18, 24, 166 A. 599, 601 (1933); Emersonian Apartments v. Taylor, 132 Md. 209, 213-14, 103 A. 423, 424 (1918). Acquiescence implies consent, although by no means express consent. See Black's Law Dictionary 22 (5th ed. 1979) (defining "acquiesce" as "[t]o...

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