Proper v. Mowry
| Decision Date | 26 July 1977 |
| Docket Number | No. 2740,2740 |
| Parties | Robert PROPER, Plaintiff-Appellant, v. Frank W. MOWRY, Defendant-Appellee. |
| Court | Court of Appeals of New Mexico |
This case involves a claim of slander made by one physician against another on December 3, 1973, at a staff meeting of doctors held at the Lovelace Clinic in Albuquerque, New Mexico. The jury returned a verdict for defendant and plaintiff appeals from the judgment entered in favor of defendant. We affirm.
Plaintiff's claims of error will be discussed seriatim.
On September 15, 1976, two days before trial, plaintiff filed what is called a "Motion in Limine". This motion sought an order of court that defendant's attorney make no reference in his opening statement to the following evidence:
(T)hat subsequent to his dismissal by the Lovelace Clinic, (December 31, 1973) Plaintiff has had his privileges suspended at local hospitals for failure to have his charts up to date and that there has been filed against him with the grievance committee of the County Medical Society grievances alleging excessive fee charges by the Plaintiff.
On September 17, 1976, the morning of trial, the motion was heard in the court's chambers. The court requested defendant's attorney to place of record what he intended to touch on in his opening statement. Defendant's attorney said:
What my defense is with respect to damages, I would like to state the following: 1. That the reason for Doctor Proper enjoying a lack of esteem in the year 1976 is not because of anything Doctor Mowry said, but rather because of his reputation for charging excessive fees; 2. The reputation for over-utilizing hospital facilities; 3. The reputation for sloppy record keeping and suspension from the hospitals for failure to keep records up, and his general attitude to the medical community in Albuquerque.
With respect to excessive fees, I expect and want to say in my opening statement that the reason Doctor Proper may not be receiving referrals is referring physicians do not want to refer patients to a physician if he charges more than what the insurance company will reimburse, and since Doctor Proper's fees are in excess of that typically paid in the community, they are not reimbursable, and that is why Doctor Proper does not receive referrals, not because of anything Doctor Mowry said.
May I make a record on the adultery matter? My theory would be: 1. The relation to reputation. He admitted he committed adultery. A public complaint was filed in this court alleging adultery. He admitted to it in the course of the divorce proceedings. It's relevant to reputation, and I am entitled to that, and also in terms of bringing out a bad act under these rules. If Your Honor would rule on that now I won't have to approach the bench. (Emphasis added.)
The court ordered defendant's attorney to refrain from mentioning, (1) the subject of adultery because it was irrelevant to plaintiff's reputation, (2) the grievance committee event, and (3) excessive fees charged.
Over objection, the court allowed defendant's attorney to state generally, (1) that plaintiff over-utilized diagnostic methods, (2) that record keeping was not up to community standards in Albuquerque, and (3) that plaintiff charged fees that would not be reimbursed by insurance companies.
In his opening statement, defendant's attorney with reference to the question of damages, said:
We will show that Doctor Proper, among certain surgeons in town, enjoys a reputation of charging more fees than the insurance company will reimburse for the patient, and as a result, certain surgeons are reluctant to send patients to him, because the patients can't get reimbursement from the insurance company. So to the extent there has been a loss of reputation, or he does not enjoy a good reputation as he might, we contend the evidence will show this is a result of his own actions and nothing that Doctor Mowry did. We will also show that Doctor Proper has a reputation in some circles for over-utilization of procedures; that is doing too many tests, and that if there is a lack of good reputation being enjoyed by him, that may be another reason why he does not have as good a reputation as he would like.
Plaintiff moved for a mistrial. The motion was denied.
(1) Briefs filed did not assist on issue of "Motion in Limine".
Before we discuss the issue involved, we desire to continue to criticize attorneys for failure to properly assist this Court in a determination of the issue.
This pretrial motion is a matter of first impression in New Mexico, yet opposing attorneys must not have believed that this procedural matter deserved any mention, attention or comment. In briefs filed, no mention was made of the scope and purpose of the motion, nor whether it is an acceptable procedural process in New Mexico, nor whether it is covered by our Rules of Civil Procedure, nor what law governs the decision of the trial court.
Continued criticism of briefs filed on appeal reflects that appellate courts, not the attorneys involved, must search for a just and fair solution of the case. Attorneys who are inexperienced, or who do not have time in which to perform their duties properly, should seek assistance. Otherwise, their clients will suffer the pain of outrageous misfortune.
(2) Pretrial procedure covers "Motion in Limine".
On August 27, 1976, a pretrial conference was held. During this conference, defendant's attorney made comments that indicated he would make statements in his opening presentation to the jury that plaintiff believed were prejudicial.
Rule 16(6) of New Mexico Rules of Civil Procedure (§ 21-1-1(16)(6), N.M.S.A.1953 (Repl.Vol. 4)) provides that the court can consider "(s)uch other matters as may aid in the disposition of the action." This rule is derived from Rule 16 of the Federal Rules of Civil Procedure and is identical therewith. This all-encompassing provision gives the trial court independent authority to determine questions raised as to the admissibility of evidence at trial. Aley v. Great Atlantic & Pacific Tea Co., 211 F.Supp. 500 (W.D.Mo.1962); Carlock v. Southeastern Greyhound Lines, Inc., 8 Fed.Rules Serv. 16.261, Case 1 (E.D.Tenn.1944); Bradbeer v. Scott, 193 Cal.App.2d 575, 14 Cal.Rptr. 458 (1961); Herr, The Evidence Ruling at Pretrial in the Federal Courts, 54 Calif.L.Rev. 1016 (1966).
The written motion, the oral arguments, and the oral order of the trial court made on the morning of trial, places an undue burden on the court because he must shoot from the hip to reach a result. Attorneys should avoid this event whenever possible. If presented in advance of trial with briefs filed and with time to hear argument, and study the issue involved, the court will be inclined to decide the matter presented with an appropriate order.
In the instant case, if the matter had been raised at the pretrial conference, it might have obviated plaintiff's "Motion in Limine" long before trial.
(3) The "Motion in Limine" procedure is acceptable in New Mexico.
Ofttimes a pretrial conference is held long before trial. Thereafter, by discovery procedures, conferences held, and by other ways, prejudicial matters may arise that require "in limine" procedure. Inasmuch as the "Motion in Limine" will be filed hereafter in many cases, we deem it essential to tour this subject matter and establish guidelines that may avoid reversible error.
Indiana adopted this procedural device in 1973. Burrus v. Silhavy, 155 Ind.App. 558, 293 N.E.2d 794 (1973), 63 A.L.R.3d 304 (1975). We quote from Burrus to set up our approach to a solution of the problem presented.
A "motion in limine" is a term used to describe a written motion which is usually made before or after the beginning of a jury trial for a protective order against prejudicial questions and statements. Its purpose has been succinctly expressed in Bridges v. City of Richardson (1962), 163 Tex. 292, 354 S.W.2d 366, 367:
Its effect has been to shorten the trial, simplify the issues and reduce the possibilities of a mistrial. (Emphasis added) (293 N.E.2d at 796-97).
Burrus stated the reasons for adoption of this pretrial procedure as follows:
A trial court has the inherent power to admit or exclude evidence. A "motion in limine" is a necessary adjunct to the inherent power of a trial court to exclude inadmissible and prejudicial evidence before and during trial. The granting of such motions may necessitate the issuance of protective orders which will assure a fair and impartial administration of justice. (293 N.E.2d at 795).
We have emphasized the word "prejudicial" because "(T)he purpose of a 'motion in limine' is to exclude prejudicial matter and not to exclude irrelevant evidence as was done in the present case." Baldwin v. Inter City Contractors Service, Inc., 156 Ind.App. 497, 297 N.E.2d 831, 832 (1973). Wagner v. Larson, 257 Iowa 1202, 136 N.W.2d 312, 326 (1965).
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