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Brown v. Contemporary OB/GYN Associates3/27/2002
stice."'" Hill v. State, 134 Md. App. 327, 348-49 (citations omitted), cert. denied, 362 Md. 188 (2000); see Hunt v. State, 321 Md. 387, 422 (1990), cert. denied, 502 U.S. 835 (1991). "`The question is one of prejudice.'" ACandS, Inc. v. Godwin, 340 Md. 334, 407 (1995) (citation omitted); see Carter v. State, 366 Md. 574, 589 (2001). "Whether to order a mistrial lies in the sound discretion of the trial judge, and appellate review of the denial of the motion is limited to whether there has been an abuse of discretion." Godwin, 340 Md. at 407; see Klauenberg v. State, 355 Md. 528, 555 (1999); Medical Mut. Liab. Ins. Soc'y v. Evans, 330 Md. 1, 19 (1993).
Maryland Rule 2-533 permits a party to seek a new trial upon a timely motion founded on proper grounds. See Thodos v. Bland, 75 Md. App. 700, 706, cert. denied, 313 Md. 689 (1988). As the Court of Appeals recently made clear, the denial of a motion for new trial is reviewable on appeal and, ordinarily, "discretionary rulings on such motions are subject to reversal where there is an abuse of discretion." Merritt v. State, 367 Md. 17, 28 (2001); see Buck v. Cam's Broadloom Rugs, Inc., 328 Md. 51, 56-7 (1992). But, in Merritt, the Court also recognized that a ruling on a motion for new trial is sometimes reviewed under an error standard. The Court said: "Consistent with the recognition in Buck that sometimes a trial court has virtually no discretion to deny a new trial motion, we have taken the position that some denials of new trial motions are reviewable under a standard of whether the court erred rather than under an abuse of discretion standard." Merritt, 367 Md. at 30-31. Moreover, the Court explained that, when an alleged error occurs during trial and is not discovered, without fault, during the trial, the denial of a new trial motion is reviewed "under a standard of whether the denial was erroneous." Id.
In this case, on March 23, 2000, and again on May 30, 2000, the court fully heard the issues spawned by Armstrong's representation of Dr. Osborne in the unrelated malpractice case. As we have seen, the evidence and proffers showed that Howard Hospital contacted Armstrong about an unrelated matter. He intended to meet with Dr. Osborne in late January 2000, after the conclusion of the second Brown trial. Because it ended in a mistrial, however, Armstrong proceeded with the meeting that had been previously scheduled. In doing so, the court found that Armstrong quickly erected a "Chinese wall," and never exchanged confidential information or discussed any aspect of the Brown case with Dr. Osborne. Significantly, the court was also satisfied that Armstrong did not procure Dr. Osborne's absence at the Brown trial, or suggest to him that he should not cooperate with appellants. Indeed, the court explicitly found: "Mr. Armstrong did not procure the absence of Dr. Osborne nor did he counsel him about non-availability or non-communication with plaintiff's counsel."
To be sure, the court acknowledged "lingering" concerns as to the propriety of Armstrong's conduct and the possible "subliminal" influences on Dr. Osborne as a result of Armstrong's representation of him. But, it concluded that the misconduct, if any, was of no legal significance, because Dr. Osborne's absence at trial was the result of appellants' own dereliction in failing to exercise "ordinary prudence in arranging for attendance." Therefore, the trial judge concluded that it was not necessary to determine "whether there was a violation of an ethical standard" by Armstrong. As a result of that ruling, appellants introduced in evidence Dr. Osborne's untainted testimony from the first trial.
We apply the clearly erroneous standard to the lower court's numerous findi
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