Opinion
Civil Action CV-20-47
04-22-2021
KRISTIN ARSENAULT v. BLUE WATER EMERGENCY PARTNERS et. al
ORDER
THOMAS R. MCKEON JUSTICE, MAINE SUPERIOR COURT
The parties requested a conference pursuant to M.R.Civ.P. 26(g) regarding two issues arising from the settlement between the Plaintiff and Defendant Martin's Point Help Care, Inc. ("Martin's Point"). Namely, the two remaining Defendants both seek production of the settlement agreement between Plaintiff and Martin's Point and seek to call Dr. Wei Wei Lee, a primary care provider who the Plaintiff designated to testify against Martin's Point, as a witness at trial. As described below, the court agrees with the Defendants on both issues and orders Plaintiff to produce the settlement agreement pursuant to a confidentiality order and allows Defendants to introduce Dr. Lee's testimony at trial.
FACTS
The facts are laid out in detail in the court's order on the Motion for Partial Summary Judgment filed by Defendant Blue Waters Emergency Partners ("Blue Waters"). In brief and somewhat simplified, on September 13, 2016, Wendell Arsenault went to the emergency room operated by Defendant Blue Waters after an accident. A CT Scan revealed an abnormality in Arsenault's brain. The radiologist informed the Blue Waters emergency physician that an MRI was needed quickly given the risk of a brain abscess. The Blue Waters physician did not order an MRI scan, but told Arsenault to report to his primary care provider at Martin's Point the next day.
The Martin's Point physician did not order the MRI until September 26. On September 17 or 18, the brain abscess began cause focal neurologic deficits resulting in diagnosis of the brain abscess and surgery on September 20. The Plaintiff alleges that the delay significantly reduced Arsenault's chances of recovery and caused his subsequent disability and death. The Plaintiff alleges that both the Blue Waters ER physician and the Martin's Point primary care physician are at fault for failing to secure an earlier MRI.
After mediation on November 19, 2020, the Plaintiff and Martin's Point reached a settlement agreement. Both of these discovery issues arose as a result of the settlement agreement.
A. Settlement Agreement.
The Defendants would like to know the terms of the settlement agreement in order to anticipate the effect of the settlement at trial after the application of 14 M.R.S.A. §§ 156 and 163.The court agrees with the opinions of Magistrate Rich in Barclay v. Gressit, 2013 U.S. Dist. LEXIS 103518 (D. Me. July 24, 2013) and Justice Horton in Laudermilk v. Wellpath, LLC, 2019 Me. Super. LEXIS 135, *3. It clearly serves the purpose of the statutes governing settlements of fewer than all the parties to allow the remaining parties to know the terms of the settlement to the extent they affect the rights and liabilities of the remaining parties. The Plaintiff provided no good reason why that information should not be disclosed.
Whether the existence of the settlement is in any way admissible at trial is an issue for trial.
The court does agree to protect the settling parties' interests in confidentiality and agrees that the settlement agreement should be produced in accordance with a Confidentiality Order. Subject to a showing by the Defendants that production of copies of the documents themselves is necessary, the court orders production of the agreement pursuant to a Confidentiality Order under the same method of production that Justice Horton ordered in Laudermilk.
B. Dr. Lee's trial testimony.
Plaintiff retained and designated Dr. Lee, a primary care provider, to testify regarding the fault of the Martin's Point physician. Not surprisingly, the remaining Defendants believe that testimony will be helpful to them. Dr. Lee was designated by the Plaintiff, but was not designated any of the Defendants. She was deposed and participated in the prelitigation screening panel. When the case went into suit, she was designated by the Plaintiff, but she was not included in any of the Defendants' initial expert designations served before the September, 2020 deadline. Defendant Mid Coast did reserve the right to call expert witnesses designated by the Plaintiff and by codefendants. The parties attended mediation on November 19, where Martin Point and the Plaintiff settled. On November 20, Blue Water supplemented its expert designation to include Dr. Lee.
Plaintiff applies the standard excusable neglect analysis that the court would apply to an untimely expert designation. Hutz v. Alden, 2011 ME 27, ¶¶ 19-22, 12 A.3d 1174. When an opposing party is not unfairly surprised, however, a court may allow expert witness testimony even without a finding of excusable neglect. Estate of O'Brien-Hamel, 2014 ME 75, ¶23; Bray v. Grindle, 2002 ME 130, ¶9.
Because the Plaintiff retained Dr. Lee, this is not the typical case. Here, the Plaintiff prepared and tendered Dr. Lee for a deposition and was thoroughly aware of Dr. Lee's testimony. Dr. Lee's testimony is part of the record in the case. As the Seventh Circuit held in similar circumstances, the party who retained the witness cannot claim surprise. SEC v. Koenig, 557 F.3d 736, 744 (7th Cir. 2009). Once testimony is part of the case, anyone can use it. One party cannot keep the testimony from the factfinder just because they retained the witness. "The cry of privilege' does not stop the Court and jury from hearing the opinion of the expert in the search for the truth." Rancourt v. Waterville Urban Renewal Authority, 223 A.2d 303, 305 (Me. 1966).
Here, Blue Water designated Dr. Lee immediately after the mediation, as soon as it was no longer apparent the Plaintiff would not use her testimony. Until then, Blue Water had good reason to believe Dr. Lee would be testifying at trial at the request of the Plaintiff. The November designation was only about two months after the September expert deadline. The Plaintiff cannot be said to have suffered any prejudice.
Any objection to any aspect
The entry is:
Defendants' request for production of the settlement agreement is GRANTED. Plaintiff will produce the agreement subject to a confidentiality order. Although Plaintiff may produce a copy of the agreement to the Defense counsel subject to the confidentiality agreement, the court will not require the Plaintiff to do any more than show the agreement to the Defendants at this time.
Defendants' request to allow them to designate Dr. Lee as an expert witness is GRANTED, Defendant may either call Dr. Lee as a witness or introduce deposition testimony from Dr. Lee as permitted by the Maine Rules of Civil Procedure and the Maine Rules of Evidence.
This Order is incorporated on the docket by reference pursuant to M.R.Civ.P. 79(a).
Dr. Lee's testimony based on Rule 403 Would be addressed at or before trial.