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BLACK v. WARD11/10/1993
This case arises from a medical malpractice claim brought by the plaintiff Abigail Black. Black's complaint alleged that the defendant, Carol Ward, an obstetrician and gynecologist, misdiagnosed a lesion on plaintiff's nose, that the lesion was subsequently diagnosed as cancerous by another physician, and that, as a result of defendant's negligent diagnosis and improper treatment, she suffered severe and permanent impairment and scarring. Following a jury trial, the Superior Court (Cumberland County, Wernick, A.R.J.) entered a judgment on behalf of defendant. Plaintiff argues that the court (Brodrick, J.) abused its discretion in concluding that she was precluded from calling expert witnesses to testify about the standard of care owed by defendant, and that the court (Alexander, J.) abused its discretion in denying her motion to compel a reply to interrogatories. Finding no merit in either of plaintiff's arguments, we affirm the judgment.
In August 1987, the court issued a pretrial scheduling order which declared that "discovery shall be completed by August 26, 1988" and that the "parties must designate expert witnesses sufficiently early within the discovery period so as to allow other parties time to take discovery and to designate expert witnesses of their own."
On December 4, 1987, defendant filed a motion for a summary judgment claiming that Black's complaint was barred by the two year statute of limitations applying to medical malpractice actions, which motion was granted by the court. On Black's appeal we held that the court incorrectly concluded that the complaint was barred and remanded the case to the Superior Court for further proceedings. Black v. Ward, 549 A.2d 371, 372 (Me. 1988).
Following our remand of the case in November 1988, plaintiff took no further action until November 5, 1990 when she served interrogatories on defendant. Defendant objected to the interrogatories on November 19, 1990, arguing that the discovery deadline had expired on August 26, 1988. She also filed a motion to dismiss pursuant to M.R.Civ.P. 41(b)(2) for nonprosecution and, in the alternative, moved for a summary judgment on the ground that Black would be unable to prove her case without an expert on the standard of care. The Superior Court denied defendant's motion for a dismissal based on the fact that Black had propounded interrogatories within the two year period provided by M.R.Civ.P. 41(b)(2). The Court also denied a summary judgment on the basis that it was open to the plaintiff to attempt to establish negligence without reliance on expert testimony, citing our decision in Forbes v. Osteopathic Hospital of Maine, 552 A.2d 16 (Me. 1988). In denying the defendant's motions, the court made clear that the period for discovery had ended and, thus, plaintiff could not call any standard of care experts at trial. In a separate decision, the court also denied Black's motion to compel Ward to answer interrogatories. On the eve of the trial, the court granted defendant's motion in limine to exclude expert testimony.
Following a two-day trial, the jury returned a verdict in favor of defendant. A judgment was entered against plaintiff together with interest and costs.
We review pretrial rulings of the trial court for an abuse of discretion or error of law. Reeves v. Travelers Ins. Co., 421 A.2d 47, 50 (Me. 1980). "An appellate court will not lightly overrule a trial court's judgmental choice of an appropriate sanction. . . ." Id. On the record before us, the decisions to exclude expert testimony and to refuse to compel defendant to reply to plaintiff's interrogatories do not represent abuses of discretion. The pretrial scheduling order in this case required that discovery be co
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