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Schmidt v. Rand

Superior Court of Maine, Cumberland

March 8, 2016

HENRY SCHMIDT, as Personal Representative of the Estate of DOROTHY E. SCHMIDT, Plaintiff


Roland Cole, Chief Justice.

Before the court is plaintiffs motion for a new trial and/or sanctions in his medical malpractice action against defendants Melanie Rand, D.O. and Parkview Adventist Medical Center (Parkview). For the following reasons, the court denies the motion for a new trial and grants the. motion for sanctions as to Parkview and its counsel.


Plaintiff filed a notice of claim on March 18, 2011, alleging negligence on the part of Dr. Rand and Parkview in their care and treatment of Dorothy Schmidt in July 2009. Specifically, plaintiff alleged that defendants were negligent in failing to follow up on test results that showed Ms. Schmidt was suffering from a urinary tract infection.

The case proceeded through the prelitigation screening process, and plaintiff filed a complaint on October 10, 2013. The scheduling order set September 10, 2014 as the deadline for discovery. During discovery, plaintiffs counsel served on Dr. Rand a set of interrogatories, one of which asked when Dr. Rand became aware of the results of a urinalysis test performed on Ms. Schmidt. On July 21, 2011, Dr. Rand responded: "To the best of my knowledge I became aware of Ms. Schmidt's July 6, 2009 test results on July 19, 2009." Dr. Rand later gave responses consistent with this statement in her deposition testimony, her reply statement of material facts, and through her counsel via email with plaintiffs counsel.

On September 25, 2014, plaintiffs counsel filed a witness and exhibit list that included as an exhibit "any and all Electronic Medical Record and data/audit trail information." On the night of Friday, May 8, 2015, Dr. Rand's counsel informed plaintiffs counsel by email that she had "reviewed the audit trail with Dr. Rand." According to plaintiffs counsel, this was the first she had heard of any audit trail. The email further stated that the audit trail showed that Dr. Rand "viewed" Ms. Schmidt's urinalysis results on July 7, 2009, and that she "viewed" and "acknowledged" the same results on July 17, 2009. As a result of this information, Dr. Rand's testimony at trial would now be that, although she has no memory of viewing the results on July 7 and 17, her review of the results on those dates would not have prompted her to address them.

On the evening of Saturday, May 9, 2015, Dr. Rand's counsel emailed plaintiffs counsel unsigned amended answers to plaintiffs interrogatories that reflected this change. On the afternoon of Sunday, May 10, 2015, Dr. Rand's counsel emailed to plaintiffs counsel what plaintiffs counsel claims was an incomplete version of the audit trail. A complete version was provided on Monday, May 11, 2015, along with a signed version of Dr. Rand's amended answers. Jury selection occurred that same day.

A trial was held from May 12 through May 18, 2015. The jury returned a verdict unanimously finding that Dr. Rand was not negligent in her treatment of Ms. Schmidt and finding by a vote of 6-3 that Parkview was not negligent in its treatment. Judgment was entered on May 19, 2015. Plaintiffs counsel filed the motion for a new trial and/or sanctions on June 2, 2015. Both defendants opposed the motion. The parties were unable to resolve the dispute following a conference in chambers on October 6, 2015.


A. New Trial

The justice before whom an action has been tried may, on motion filed not later than 14 days after the entry of judgment, grant a new trial to all or any of the parties and on all or part of the issues. M.R. Civ. P. 59(a). "Upon a motion for a new trial, the movant must show that the jury verdict was so manifestly or clearly wrong that it is apparent that the conclusion of the jury was the result of prejudice, bias, passion, or a mistake of law or fact." Binette v. Deane, 391 A.2d 811, 813 (Me. 1978) (citation omitted). "The evidence must be viewed in the light most favorable to the successful party and the jury's verdict must stand unless there is no credible evidence to support it." Chiapetta v. Lumbermens Mut. Ins. Co., 583 A.2d 198, 201 (Me. 1990).

Citing Sleeper v. Lilley, plaintiff first argues that he is entitled to a new trial because the new evidence constituted unfair surprise. 2014 Me. Super. LEXIS 91 (June 13, 2014). In Sleeper, the court found that allowing the plaintiffs to pursue one of their claims at trial constituted unfair surprise because the procedural history indicated that the claim was no longer part of the case. Id. at * 11-12. In contrast to Sleeper, the alleged unfair surprise in this case did not involve the unanticipated pursuit of an entire cause of action. Plaintiff simply has not shown that the level of prejudice in this case rises to the level of prejudice in Sleeper.

In addition, the element of unfair surprise in Sleeper was only one factor on which the court relied in granting a new trial. See id. at *12 ("This contributes to the court's view that the motion for a new trial should be granted."). The court based its decision on a number of factors, including, among others, potentially improper testimony from plaintiffs' expert witness regarding damages, the admission of testimony from arbitration, and erroneous jury instructions. See id. at *26 (granting a new trial due to prejudicial error "when the issues identified above are considered in combination"). The court's repeated reference to its consideration of the issues in combination suggests that it likely would not have granted a new trial on any one of the issues alone, yet plaintiff here alleges unfair surprise as the sole ground for a new trial.

Plaintiff also argues that the jury committed a mistake of law or fact in its conclusion that Parkview was not negligent. Specifically, plaintiff argues that the jury erred because experts for both plaintiff and defendants testified that patients have the right to receive their test results, and the evidence established that Ms. Schmidt did not receive her results. Expert testimony is not binding on the jury. Warren v. Waterville Urban Renewal Auth, 235 A.2d 295, 305 (Me. 1967). The jury was free to give the testimony as little or as much ...

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