Vergie M. Lapelosa, Inc. v. Cruze

• Decision Date: 13 November 1979
• Docket Number: No. 239,239
• Citation: 407 A.2d 786,44 Md.App. 202
• Parties: VERGIE M. LAPELOSA, INC., etc. v. Kenneth CRUZE.
• Court: Court of Special Appeals of Maryland

Page 202

44 Md.App. 202

407 A.2d 786

VERGIE M. LAPELOSA, INC., etc. v. Kenneth CRUZE.

No. 239.

Court of Special Appeals of Maryland.

Nov. 13, 1979.

John J. Sellinger, Seabrook, with whom was George W. Shadoan, Rockville, on the brief, for appellants.

William A. Ehrmantraut, Rockville, with whom were Donahue, Ehrmantraut & Montedonico, Rockville, on the brief, for appellee.

Argued before GILBERT, C. J., and COUCH and MacDANIEL, JJ.

MacDANIEL, Judge.

On April 20, 1977, Richard D. Lapelosa and Vergie Marie Lapelosa, his wife, filed an action in the Circuit Court for Prince George's County (Judge Audrey E. Melbourne, presiding) against Dr. Kenneth Cruze, alleging medical negligence in the care and treatment of Richard Lapelosa. Specifically, they alleged in the various counts: (1) negligence in Dr. Cruze's failure to perform surgery on Mr. Lapelosa prior to April 20, 1974, when Mr. Lapelosa suffered a cerebral stroke; (2) negligence in the performance of the May 9, 1974, surgery without first obtaining a recent diagnostic dye study and without obtaining informed consent to the surgery; and (3) damages for loss of consortium.

Interrogatories were propounded by Richard Lapelosa to Dr. Cruze and also by Dr. Cruze to Richard Lapelosa. They were answered by the respective parties. A deposition was also taken of Dr. Cruze.

On June 18, 1978, prior to trial, Richard Lapelosa died of a heart attack. There is no claim that his death was related to the treatment rendered by the appellee, and, therefore, no issue of wrongful death is involved in this case. Thereafter, Vergie Lapelosa, in her capacity as personal representative of her husband's estate, was substituted for Richard Lapelosa in this action.

Prior to the trial, the appellants filed a Motion In Limine, asking the court to sign an order excluding from the evidence at the trial any testimony by the appellee concerning: (1) any statement by the deceased in which he allegedly refused, or indicated an unwillingness, to undergo surgery; and (2) any statement by the deceased in which he allegedly refused, or indicated an unwillingness, to submit to a diagnostic dye study prior to surgery on May 9, 1974. The appellants argued that the appellee was barred from so testifying by the Maryland "Dead Man's" Statute. ¹ The trial judge denied the motion in a Memorandum and Order dated October 2, 1978. She reasoned that the use of discovery against Dr. Cruze by the deceased constituted a waiver under the statute with respect to the controversial testimony.

When the trial began, the appellants called Dr. Cruze as an adverse witness, and, in response to their questioning, Dr. Cruze testified that Mr. Lapelosa had refused surgery from June 1973 to April 1974. He also testified that after surgery finally had been scheduled, Mr. Lapelosa still chose not to undergo another diagnostic dye study prior to surgery. At no time during the trial did the appellants renew their motion to have the above evidence excluded, nor did they record an objection to the prior ruling on the motion In limine.

When Mrs. Lapelosa took the witness stand, she was asked by her attorney, "In your discussion with your husband, did he express any emotion or feeling concerning the office visit?" The question referred to alleged recommendations by Dr. Cruze concerning surgery. The appellee objected on the grounds that the answer would be hearsay. The appellants' attorney then proffered that the testimony would be as follows:

"MR. SHADOAN: Mr. Sellinger is more familiar with it than I, but it is my understanding that Mr. Lapelosa indeed, as Dr. Cruze's notes indicate, did feel his nerves were working on him. He was concerned. He was concerned because he could not go back to work until the surgery was undertaken, and he wanted to go back to work. And he was quite concerned about this. He was upset that he was not able to return to work until the surgery took place. He was sitting around the house waiting for the opportunity for the surgery to take place, concerned that he could not return to work until it was done. That is my understanding of the substance of what the testimony would be.

Is that accurate?

MR. SELLINGER: That is certainly correct on that point."

The attorney argued that such testimony fell under the "state of mind" exception to the hearsay rule. The trial judge disagreed and sustained the objection. She made it clear that her ruling was based solely on the unreliability of the testimony under the hearsay rule and not on the "Dead Man's" Statute, which, she felt, had been waived.

At the conclusion of all of the evidence the trial judge gave the following general instruction on contributory negligence:

"To establish the defense of contributory negligence, the burden is on the defendant to prove by a preponderance of the evidence that the plaintiff was negligent and that such negligence contributed in some degree as a proximate cause of the injuries to the plaintiff. . . .

Contributory negligence is negligence on the part of the person injured, which, combining in some degree with the negligence of another proximately causes the injury of which he complains. If you find that the plaintiff was guilty of such negligence, you should find for the defendant, because one who is guilty of contributory negligence may not recover from another for the injuries sustained, even though the negligence of that other was also a cause of the injury."

The jury returned a verdict in favor of the appellee, and the trial judge denied the appellants' Motion for a New Trial. On appeal Mrs. Lapelosa alleges a number of errors in the conduct of the trial below.

I

The appellants argue, first, that their pre-trial deposition of, and interrogatories to, Dr. Cruze did not constitute a waiver of their right, under the "Dead Man's" Statute, to have excluded from the trial the controversial testimony by Dr. Cruze concerning statements of Mr. Lapelosa. They contend that the trial judge should not have admitted that testimony into evidence. We find, however, that we need not reach this issue because it was not properly preserved for appellate review.

The appellants initially raised the issue of the admissibility of Dr. Cruze's testimony in a pre-trial Motion In Limine, which was denied. At trial, they did not voice any objection to such testimony by Dr. Cruze, and, in fact, their counsel called Dr. Cruze to testify and asked him questions regarding statements made by the deceased.

Maryland Rule 1085 requires that, normally, on appeal, we not decide "any point or question which does not plainly appear by the record to have been tried and decided by the lower court . . ." Thus, for a question of admissibility of evidence to be preserved for appellate review, the testimony must generally have been objected to in the court below. See Davidson v. State, 18 Md.App. 61, 72, 305 A.2d 474 (1973); Ragler v. State, 18 Md.App. 671, 673, 308 A.2d 401 (1973).

There is no exception to the above rule, which requires the recording of an objection in the trial below, where the question of admissibility of evidence has previously been raised in a pre-trial motion In limine.

In Ory v. Libersky, 40 Md.App. 151, 164, 389 A.2d 922, 930 (1978), Judge Moore, speaking for this Court, stated:

" . . . there is substantial authority for the proposition that the denial of a motion In limine cannot in and of itself constitute reversible error."

He, therefore, held that denial of the appellant's motions In limine was not reversible error. The reason for this rule was made clear in Robinson v. State, 309 N.E.2d 833, footnote 17 (1974), when the Court of Appeals of Indiana, Second District, defined and explained motions In limine as follows:

"17. 'Literally, "in limine" means "On the threshold; at the outset." Ballentine, Ballentine's Law Dictionary 628 (1969). See also 2 Burrill, Law Dictionary 55 (1871) and Callaghan, Cyclopedic Law Dictionary 557 (1940). 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:

"The purpose in filing a motion in limine to suppress evidence or to instruct opposing counsel not to offer it is to prevent the asking of prejudicial questions and the making of prejudicial statements in the presence of the jury with respect to matters which have no proper bearing on the issues in the case or on the rights of the parties to the suit. It is the prejudicial effect of the questions asked or statements made in connection with the offer of the evidence, not the prejudicial effect of the evidence itself, which a motion in limine is intended to reach . . . ." ' Burrus v. Silhavy (1973), Ind.App., 293 N.E.2d 794, 796, 35 Ind.Dec. 541, 544." (Emphasis added.)

In Redding v. Ferguson, 501 S.W.2d 717, 722-23 (1973), the Court of Civil Appeals of Texas elaborated further:

"(a motion In limine ) also serves the useful purpose or raising and pointing out before trial, certain evidentiary rulings that the Court may be called upon to make. By its very nature, when properly drawn, its grant cannot be error. It is not a ruling on evidence. It adds a procedural step prior to the offer of evidence.

. . . In Hudson v. Smith, 391 S.W.2d 441 (Houston, Tex.Civ.App., 1965, ref., n. r. e.) at page 449 the court said: 'Granting or denying a motion in limine does not preserve error.' So also in Gulf States Abrasive Manufacturing, Inc. v. Oertel, 489 S.W.2d 184 (Houston, Tex.Civ.App., 1st Dist., 1972, ref., n. r. e.) at page 187, which states: 'Error is not preserved by the mere showing of the granting or denying of a motion in limine.' See also State v. Wheeler, 390 S.W.2d 339 (Beaumont, Tex.Civ.App., 1965, ref., n. r. e.) and Aetna Casualty and Surety Company v. Finney, 346...