Todd v. Andalkar
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MAINE SUPREME JUDICIAL COURT			Reporter of Decisions
Decision: 1997 ME 59
Docket: Oxf-93-416
Argued February 5, 1997
Decided April 1, 1997

Panel:  ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, and LIPEZ, JJ.  

MARC TODD

v.

RATNAKAR ANDALKAR et al.

GLASSMAN, J.

	[¶1] Marc Todd appeals from the judgment entered in the Superior
Court (Oxford County, Fritzsche, J.) following a jury verdict in favor of
Stephens Memorial Hospital, Ratnakar Andalkar, and Hugh Robinson on his
complaint seeking damages for their alleged professional negligence in his
medical care.{1}  Todd contends that the court abused its discretion by
denying him the right to cross-examine Andalkar's expert witness, Jeremy
Morton, on issues of potential bias.  We agree, and accordingly, we vacate the
judgment.  
	[¶2]  The record discloses the following: On the evening of April 17,
1987, Todd fell from a roof and was transported by ambulance to Stephens
Memorial Hospital in Norway.  The initial evaluation in the hospital disclosed
that Todd was suffering from intra-abdominal bleeding.  The pre-operative
test results available to Andalkar revealed, inter alia, that Todd's left kidney
was not functional.  During the surgical procedure, Andalkar determined the
source of the bleeding to be a ruptured spleen and removed it.  
	[¶3] Tests performed in the next few days established that Todd's left
renal artery had been severed in the fall and that only an unstable blood clot
was preventing serious internal bleeding.  After consulting with Robinson,
Andalkar advised the performance of an elective nephrectomy to remove
Todd's avulsed non-functional left kidney.  Andalkar performed this surgical
procedure, and Robinson assisted.  There was severe bleeding from a torn
aorta during the course of the surgery.  Following Andalkar's consultation
with Morton during the course of the surgery, Morton flew from Portland to
render emergency assistance.  As a result of the loss of blood flow to his
right kidney during the operation, Todd has permanently lost the function
of his right kidney.  
	[¶4] Following compliance with the Health Security Act, 24 M.R.S.A.
§§ 2501-2961 (1990 & Supp. 1996), that governs claims for professional
negligence against physicians and surgeons, and the panel's unanimous
finding that the alleged acts or omissions did not constitute a deviation from
the standard of care by Andalkar and Robinson, Todd instituted the present
action.  Prior to the trial, Andalkar filed a motion in limine seeking to
preclude Todd from cross-examining his expert, Jeremy Morton, on his
relationship with Maine Mutual Insurance Company (MMIC), the insurer of
Andalkar and Robinson.  The court granted in part and denied in part
Andalkar's motion ruling that Todd would be "permitted to explore the
issue of potential bias, without referring to insurance of Maine Mutual . . . ."  
	[¶5] At the trial, the court, out of the presence of the jury, permitted
Todd to voir dire Morton concerning his connections with MMIC.  Morton's
testimony may be summarized as follows:  He was a founder of MMIC and is
an insured of that company.  He currently serves as a vice president and
makes executive decisions concerning how the company is operated,
including setting his compensation for expert testimony in the present case. 
He considers it his duty to operate the company in a financially responsible
manner.  He is paid an annual salary of $50,000 for his service as a corporate
officer.  He is an ex-officio member of all committees, serves on the
executive committee, and has reviewed claims in the past.  He did not,
however, review Todd's claim or discuss it with anyone at MMIC because of
his role as "treater and expert." Following the voir dire examination,
although the court recognized Morton's potential bias, it excluded any
reference to Morton's relationship with MMIC from Todd's cross-
examination of Morton.  The court noted that there was a sufficient basis for
its ruling pursuant to M.R. Evid. 411,{2} but on the basis that the probative
value of the evidence adduced on the voir dire examination was substantially
outweighed by the danger of its unfair prejudice to the defendants, its ruling
was pursuant to M.R. Evid. 403.{3}  Morton subsequently testified that
Andalkar and Robinson acted consistent with the appropriate standards of
medical care in their treatment of Todd.  
	[¶6] Todd contends that the court erred by prohibiting him from
cross-examining Morton on his relationship with MMIC.  He argues that
because the testimony of experts is essential to the case,{4} the ruling
deprived the jury of facts needed to fairly judge the credibility of the expert
testimony presented by Morton.  We agree.  We review the trial court's
ruling excluding proffered evidence pursuant to M.R. Evid. 411 or 403 for an
abuse of discretion.  See Miller v. Szelenyi, 546 A.2d 1013 (Me. 1988) (court
did not abuse its discretion by its denying motion to exclude all reference to
insurance coverage); Bailey v. Sears, Roebuck & Co., 651 A.2d 840, 843 (Me.
1994) (ruling pursuant to M.R. Evid. 403 reviewed for abuse of discretion).  
	[¶7] Todd has the burden of demonstrating that the trial court abused
its discretion by excluding the evidence and that he was thereby prejudiced. 
State v. Poland, 426 A.2d 896, 898 (Me. 1981).  "Prejudicial injury occurs
only if the evidence excluded was relevant and material to a crucial issue and
if it can with reason be said that such evidence, if admitted, would probably
have affected the result or had a controlling influence on a material aspect of
the case." Taylor v. Hill, 464 A.2d 938, 943 (Me. 1983) (quoting Minott v.
F.W. Cunningham & Sons, 413 A.2d 1325, 1329 (Me. 1980)).  
	[¶8] It is well established that both bias and prejudice are of great
value in assessing credibility, and courts liberally admit evidence showing
relationships or circumstances tending to impair a witness's impartiality. 
See Irish v. Gimbel, 1997 ME 50, ¶ 25,       A.2d       (Me. 1997) (because
relevant, material, and crucial to the issue of witness's bias and prejudice,
court abused discretion by excluding on cross-examination evidence of
settlement of action against the defendant's expert medical witness
involving smilar injuries to those alleged by plaintiffs); State v. Whitman, 429
A.2d 203 (Me. 1981) (defendant should have been permitted to testify to
personal interest of prosecuting witness arising out of companion civil suit);
Stetson v. Caverly, 133 Me. 217, 221-222, 175 A. 473 (Me. 1934)
(testimony that executor's wife was chief beneficiary and the amount of the
estate "clearly admissible" over objection on cross-examination to show
bias); State v. Salamone, 131 Me. 101, 159 A.2d 566 (1932) (evidence
admissible on cross-examination to demonstrate hostility toward party);
Ross v. Reynolds, 112 Me. 223, 226, 91 A. 952 (1914) (evidence on cross-
examination of defendant's witness that witness had within past year sued
plaintiff admissible "as common and proper mode of impeachment" to show
bias or prejudice of witness).  "Bias is never a collateral matter nor one on
which the cross-examiner is bound to take the witness's answer.  Extrinsic
evidence to prove bias is admissible.  Nor is it necessary to lay any particular
foundation to prove a witness's bias or personal interest." Field & Murray,
Maine Evidence § 607.2 at 6-25 (3d ed. 1994) (citations omitted).  See also
M.R. Evid. 611(b) ("A witness may be cross-examined on any matter relevant
to any issue in the case, including credibility . . . .").  
	[¶9] In Miller v. Szelenyi, 546 A.2d 1013 (Me. 1988), we construed
M.R. Evid. 411, which states, "Evidence that a person was or was not
insured against liability is not admissible upon the issue whether he acted
negligently or otherwise wrongfully," to determine what discretion the trial
court had pursuant to this rule to admit or exclude evidence of lack of
insurance as it related to the motive for Szelenyi's refusal to perform certain
medical services.  In determining that the trial court did not abuse its
discretion by denying Szelenyi's motion to exclude all references to his
insurance coverage, we stated:
 
Even when insurance evidence may affect the issue of liability,
however, we do not read Rule 411 as a flat prohibition admitting
of no discretion whatsoever.  Rather, Rule 411 is a codification
of the "general standard" that insurance evidence should be
excluded, unless "extraordinary special circumstances require
it." 

546 A.2d at 1019 (citing Duguay v. Pomerleau, 299 A.2d 914, 916 (Me.
1973)); see also Field & Murray, Maine Evidence § 411.1 at 4-91 (3d ed.
1992) (rule does not compel the exclusion of evidence of insurance when
relevant on the issue of bias or prejudice of a witness).  In the instant case,
the proposed evidence was not to establish that the defendants acted
negligently or otherwise wrongfully, but to establish the bias or prejudice of
an expert medical witness of the defendants.  Accordingly, we conclude that
M.R. Evid. 411 did not require the exclusion of the proposed evidence.   
	[¶10] Although Morton's extensive financial and personal relationships
with MMIC were clearly relevant to his credibility, its admission was still
subject to the court's discretion pursuant to M.R. Evid. 403.  M.R. Evid. 403
provides that a trial court, acting in its discretion may exclude even relevant
evidence "if its probative value [is] substantially outweighed by the danger of
unfair prejudice . . . ." State v. DiPietro, 420 A.2d 1233, 1235 (Me. 1980)
(emphasis added).  Unfair prejudice is that which is likely to cause the jury
to "consciously or unconsciously base its verdict on something other than
established propositions in the case." Field & Murray, Maine Evidence §
403.1 at 4-16 (3d ed. 1993).  The risk is that the jury will assume the
insurance is evidence of the defendant's negligence or wrongdoing or will
award inflated damages should a plaintiff prevail.  These concerns, however,
are sufficiently addressed by the court giving requested cautionary or
limiting instructions to the jury.  We are satisfied in the circumstances of
this case that Todd has met his burden of demonstrating that the trial court
abused its discretion.  
	[¶11] Contrary to the arguments of and the cases cited by the
defendants, the excluded evidence in the instant case is not merely
cumulative or duplicative of other evidence already in the record.  The jury
received no evidence concerning Morton's personal and financial
relationship with MMIC.  Accordingly, the exclusion of this evidence, critical
to the jury's determination of the witness's credibility, cannot be said to be
harmless.  
	The entry is:
						Judgment vacated. 
                                                               
Attorney for plaintiff:

William A. Fogel, Esq. (orally)
Daniel G. Lilley. Esq.
Daniel G. Lilley Law Offices, P.A.
P O Box 4803
Portland, ME 04112

Attorneys for defendants:

Paul F. Macri, Esq. (orally)
Steven D. Silin, Esq.
Berman & Simmons. P.A.
P O box 961
Lewiston, ME 04243-0961
(for Ratnakar Andalkar)

Russsell B. Pierce, Jr., Esq. (orally)
David C. Norman, Esq.
Norman, Hanson & DeTroy
P O Box 4600
Portland, ME 04112-4600
(for Hugh P. Robinson)

FOOTNOTES******************************** {1} Todd stipulated to the dismissal of his appeal from the judgment entered in favor of Stephens Memorial Hospital on October 25, 1996. {2} M.R. Evid. 411 provides: Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully. {3} M.R. Evid. 403 provides: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. {4} It is an established principle that "when the negligence and harmful results are not sufficiently obvious to be within common knowledge, expert evidence is essential to sustain an action for negligence against a physician or surgeon." Seven Tree Manor v. Kallberg, 1997 ME 10, ¶ 6, A.2d (Me. 1997) (citation omitted). Expert evidence generally also is presented by the defendant as to the appropriate standards of medical care and the defendant's compliance with those standards in treating the plaintiff.