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Mitzell v. Glover3/20/2000
ualifying Dr. Glover's expert witness Dr. Buckholz, because he was not familiar with the appropriate standard of care?
LAW/ANALYSIS
I. Cross-Examination about Interrogatory Finding Misrepresentation by Dr. Marne()
The Mizells argue the trial court erred in admitting a jury interrogatory finding that Dr. Sheldon Marne, one of their expert witnesses, committed fraud because the interrogatory did not form part of a judgment against Marne and thus, was not appealable. I disagree.
In 1991, Minnesota Mutual Life Insurance Company sued Dr. Marne for allegedly making false statements regarding a claim he had filed. At trial, a Florida jury was asked by jury interrogatory if Dr. Marne had made misrepresentations to his insurance company. The jury replied that he had. The jury was then asked if Dr. Marne committed fraud. The jury replied that the fraud claim could not survive because of a statute of limitations problem. After the jury interrogatories were returned, the court entered a formal judgment that did not include fraud. While a motion for new trial was pending, the parties settled the matter.
Immediately before Dr. Marne testified in the case at bar, the Mizells filed a motion in limine to "exclude evidence relating to a lawsuit involving Sheldon Marne . . . because while a motion for a new trial was pending, the parties agreed to settle the matter for a compromised figure, thus there was no final judgment in the case."() The Mizells argued before the court that only matters making up a final judgment would have been appealable, and because the fraud claim did not make up a part of the final judgment and was thus not appealable, evidence relating to it should be excluded at this trial.
Dr. Glover countered that the testimony was admissible as a matter affecting the credibility of a witness under Rule 608, SCRE. The trial court considered this motion just prior to Dr. Marne's testimony at trial and concluded the content of the interrogatory was admissible under Rule 608.
On direct examination, the Mizells asked Dr. Marne "what kind of baggage [came] with him" to trial. Dr. Marne replied that "four years after my partially disabled time [from my heart catheterization,] the insurance company decided that they would sue me for the partial disability claiming it was fraudulent." When asked if he had to reimburse the insurance company for his claim, Dr. Marne did not say yes; instead, he replied that the case was "annoying" because he could have settled it for $40,000 but went to trial because he felt that he had [done] nothing wrong." Dr. Marne continued, stating he ended up with a $95,000 judgment which he intended to appeal, but the insurance company settled for $80,000. At no time did Dr. Marne explain that the jury would have found him liable for fraud but for the statute of limitations problem.
On cross-examination, Dr. Glover asked Dr. Marne whether a Florida jury had found that Dr. Marne had deliberately and knowingly made material misrepresentations to his insurance company to obtain benefits under an insurance policy. Dr. Marne acknowledged that was correct. Dr. Glover then asked if the jury had found that he committed insurance fraud, but Dr. Marne replied that this was not correct as there was a statute of limitations problem in that finding. Dr. Marne reiterated his belief that "had [the jury] found [fraud, he] would have appealed that decision . . . because thought was right." Dr. Glover closed the line of questioning by reading the interrogatory, reading the jury verdict that stated the jury had found Dr. Marne committed fraud, and asking Dr. Marne if that was an accurate account of what had transpired
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