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IRISH v. GIMBEL3/18/1997
[ 1] Plaintiffs Russell and Laurie Irish, husband and wife, and their minor child, Shane, appeal from an adverse judgment entered in the Superior Court (Cumberland County, Saufley J.) on a jury verdict in their in this case, requiring admission of the panel's findings "without explanation", violated plaintiffs' constitutional right to a jury trial. Accordingly, we vacate the judgment. In order to assist the parties and the trial court, we also address those evidentiary rulings challenged in plaintiffs' appeal and defendant's cross-appeal that are likely to recur in a new trial.
[ 2] The procedural history and the facts presented at trial may be summarized as follows: Defendant, a physician practicing obstetrics, delivered Shane irish on May 15, 1987, at a hospital in Brunswick. Nearly two years later, on March 16, 1989, plaintiffs filed a notice of claim, pursuant to 24 M.R.S.A. ยง 2903 (1990 & Supp. 1996), alleging negligence in the course of the delivery resulting in a brachial plexus palsy of Shane's right upper arm along with "potential audiological deficiencies and esotropia." A prelitigation and the parties engaged in prehearing discovery until August of 1991. After a hearing held in October of 1991, the three-member screening panel unanimously ruled that defendant's acts or omissions "did not constitute a deviation from the applicable standards of care."
[ 3] Plaintiffs then proceeded with this action in the Superior Court alleging that Shane Irish suffered physical and mental injuries proximately caused by defendant's negligence. In May of 1993, before trial, plaintiffs filed a second notice of claim alleging that defendant's negligence resulted in a brain injury in addition to the brachial plexus injury. Plaintiffs alleged the existence of a brain injury that they had not been aware of and that was evidenced by recent neurological tests. They contended that the brain injury was caused by a deprivation of oxygen when Shane was stuck in the birth canal. On defendant's motion to dismiss, the court (Lipez J.) found that the brain injury claim presented a new theory of negligence that plaintiffs failed to present to the prelitigation screening panel. Applying res judicata principles, the court held that the panel's determination on the first claim barred a second claim. The court left open the possibility that, at the trial, plaintiffs could present evidence of brain injury if related to the theory of negligence set forth in their first notice of claim.
[ 4] Before trial, plaintiffs moved for permission to present testimony with respect to the brain injury and requested a jury instruction that the negative findings of the screening panel could not be considered in assessing defendant's liability for that injury. The trial judge determined that the brain injury was not related to the theory of negligence considered by the screening panel and denied the motion.
[ 5] The court also denied plaintiffs' pretrial motions challenging the constitutionality of the screening process. Plaintiffs sought the exclusion of the findings of the panel from evidence or, in the alternative, an instruction that the findings should be afforded less weight than any other evidence in the case. At trial, the panel findings were admitted as evidence, and the court made the following preliminary remarks to the jury:
It is important for you to understand that you are not bound by
the findings of the panel. You are the final decision makers in
this case. However, in your deliberations at the close of this
case, you may consider those findings as you would any other
evidence that may be presented in this trial. You may give
those finding
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