Opinion
Civil Action CV 19-478
01-06-2023
THOMAS PANELLA, Plaintiff, v. EASTERN MAINE MEDICAL CENTER, et. al., Defendants
Plaintiff represented by Benjamin Gideon, Esq. and Taylor Asen, Esq. of Gideon Asen Defendants Northeast Neurosurgery and Joanna Swartzbaugh represented by Mark Lavoie, Esq., Devin Deane, Esq. and Noah Wuesthoff, Esq. of Norman, Hanson & DeTroy Defendants Eastern Maine Medical Center and Spectrum Healthcare Partners dismissed as parties
Plaintiff represented by Benjamin Gideon, Esq. and Taylor Asen, Esq. of Gideon Asen
Defendants Northeast Neurosurgery and Joanna Swartzbaugh represented by Mark Lavoie, Esq., Devin Deane, Esq. and Noah Wuesthoff, Esq. of Norman, Hanson & DeTroy
Defendants Eastern Maine Medical Center and Spectrum Healthcare Partners dismissed as parties
ORDER
Thomas R. McKeon Justice, Maine Superior Court
Before the court are the parties' several Motions in Limine, The court addresses them all as follows.
Defendant medical providers installed a spinal cord stimulator on Faith Panella's thoracic spine. The Plaintiff makes no allegation regarding the installation itself. Instead, the Plaintiff alleges that when Mrs. Panella presented with symptoms of a spinal cord injury a few days later the Defendant medical providers failed to diagnose Faith Panella's spinal cord injury in sufficient time to prevent paralysis.
1. Faith Panella's alcohol use and smoking history.
With respect to smoking, the Defendant argues that there is evidence that Panella's smoking contributed to her failure to avoid paralysis, that she failed to mitigate damages by continuing to smoke, and that her smoking is evidence probative of whether she suffered emotional damages and loss of enjoyment of life. The court orders that if there is expert testimony that smoking was a factor in the cause of her paralysis or quitting smoking would have had a material effect in her recovery, the Defendant may argue and introduce that testimony. Without such evidence, the Plaintiff's motion in limine is granted. The court does not find that the mere fact of smoking, as opposed to a disease that is caused by smoking, is relevant to her quality of life damages.
With respect to alcohol use, the Defendant argued at oral argument that when Plaintiff presented at the hospital with symptoms from her spinal cord injury, she was suffering from alcohol abuse and that may have impacted the staff's diagnosis. This argument was not raised in the written motion. The court will not allow this evidence to be mentioned based on the current record. This determination is without prejudice and if the foundation is laid, the Defendant may renew a request to offer the evidence at trial.
The Defendant also argues that post-treatment alcohol abuse may be relevant to the Plaintiffs quality of life damages. The court denies the Plaintiffs motion in limine as to posttreatment evidence of how alcohol use interferes with or contradicts the quality of life damage claims. That is without prejudice to a renewed objection at trial based on Rule 403. Pretreatment use of alcohol is not admissible and will not be mentioned. If Plaintiff suggests, however, that the alcohol abuse interfering with her quality of life was worse as a result of the treatment, the degree of pretreatment alcohol abuse may become relevant, and the court will reconsider the ruling excluding evidence of the pretreatment use of alcohol when the evidence is offered.
2. Consent form.
Generally, whether there was implied consent is not relevant to whether a provider breached the standard of care. Discussion of risks and complications, however, may be evidence of the standard of care. Mitchell v. Shikora, 209 A.3d 307, 317-18, and n.9 (Pa. 2019). Plaintiff agreed that the doctor may testify regarding their conversations about risks and complications and the warning provided. The court also concludes that the doctor can testify that Ms. Panella acknowledged them in writing. Unless the Plaintiffs evidence puts it at issue, the court sees little relevance to the form itself and some risk of confusion and therefore excludes it.
3. Plaintiffs liability experts.
Defendant has no intent to call them as witnesses.
4. Breach of Standard of care prior to October 16, 2015.
Defendant performed surgery on the Plaintiff. This case arises out of Defendant's conduct after surgery at the onset of the spinal cord injury resulting in paralysis on October 16, 2015. The Plaintiffs expert did not testify that Defendants breached their standard of care because of the surgery prior to that date. The court grants the motion to bar testimony of any breach of the standard of care prior to October 16. Of course, the events prior to that date may be relevant to set the stage, but evidence implying Defendant's negligence would be inadmissible. If the Defendant's case against the parties no longer in the case somehow renders the doctor's conduct prior to October 16 relevant, the Plaintiff may request the admission of that testimony.
5. Medical bills.
The amount of medical bills charged by the provider will be presented to the jury.
Bushey v. Jordan Lumber, CV-20-169. Before entering judgment, however, the court will hear the parties regarding the application of 24 M.R.S. § 2906 and hold an evidentiary hearing if appropriate.
6. Medical Treatises.
The parties and court will follow the procedure laid out in M.R. Evid. 803(18).
7. Video testimony.
The parties are in agreement regarding witnesses requiring contemporaneous video testimony. 8. Use of deposition testimony. The parties are in agreement regarding witnesses requiring testimony by deposition. 9. Evidence regarding the death of Faith Panella.
Faith Panella died after the Complaint was filed. The Complaint was never amended to allege that her death was caused by the failure to treat the spinal injury or to seek damages under the Wrongful Death Act. 18-C M.R.S. § 2-807. Plaintiff has indicated his expert is prepared to testify the injury caused Faith Panella's death. The court sees no relevance and significant unfair prejudice and excludes the opinion. The Plaintiff can offer, however, evidence of Faith's "anguish about the time lost for treatment" of the spinal injury and her fears that it shortened her life. Bolton v. Caine, 584 A.2d 615, 618 (Me. 1990).
This Order is incorporated on the docket by reference pursuant to M.R. Civ. P. 79(a).