Gross v. Stuart (ORDER)

VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court Building in the
City of Richmond on Thursday the 29th day of August, 2019.
Present: All the Justices
Michael Phillip Gross, et al., Appellants,
against Record No. 180758
Circuit Court No. 2016-16283
Supen Peze Stuart, Appellee.
Upon an appeal from a judgment
rendered by the Circuit Court of Fairfax
County.
Michael Phillip Gross and William Plastic Surgery and Spa Services Company,
LLC (hereinafter referred to collectively as “Dr. Gross”) appeal from the judgment entered by
the circuit court on a jury verdict returned in favor of Supen Peze Stuart. Upon consideration of
the record, briefs, and argument of counsel, the Court is of the opinion that there is no reversible
error in the judgment of the circuit court.
I.
Stuart brought a medical malpractice action against Dr. Gross alleging that he
negligently performed a blepharoplasty procedure, 1 resulting in permanent injury to the right
levator muscle and leaving Stuart functionally blind in her right eye. The jury returned a verdict
in favor of Stuart and awarded $800,000 in compensatory damages. The circuit court entered a
judgment order, which was suspended by subsequent order to allow the filing of post-trial
motions. After briefing and argument on post-trial motions, the circuit court entered a final order
denying the motions, and the previously suspended judgment order went into effect. This appeal
followed.
1
Blepharoplasty is a cosmetic procedure performed to remove puffiness, or excess skin
and fat, from the upper eyelids.
II.
In his first assignment of error, Dr. Gross asserts that the circuit court erred in
denying his motion in limine and in permitting Stuart to cross-examine the defense medical
expert, Dr. John Pitman, regarding matters that were the subject of a disciplinary proceeding
against Dr. Pitman.
A.
Prior to trial, Dr. Gross moved to exclude matters referenced in a consent order
entered into by Dr. Pitman with the Virginia Board of Medicine (the “Consent Order”).
Specifically, the Consent Order outlined the Board’s findings of fact and conclusions of law with
regard to certain instances in which Dr. Pitman violated the Virginia laws and regulations
concerning his medical practice in Virginia that occurred in connection with his deployment to
Afghanistan. 2 Dr. Gross argued that the evidence should be excluded on the grounds that it was
not relevant, collateral to the relevant issues, and unduly prejudicial. The circuit court denied Dr.
Gross’s motion, finding the evidence relevant, and observing that Dr. Gross “can rehabilitate
[Dr. Pitman] with whatever you need to on redirect” and instructed Stuart that “it shouldn’t be
mentioned in the voir dire or opening.” The circuit court further instructed Stuart that she should
advise the court before “going down that path.”
At trial, Dr. Gross called Dr. Pitman as an expert and directed him to review with
the jury his education, training, licensing, board certification, honors, awards, and teaching and
practice experience. Dr. Pitman described his practice during military deployment, the number
of his deployments, his treatment of combat injuries, and major reconstructions following
combat type injuries. 3 In reliance on his background, knowledge, and experience, Dr. Pitman
rendered several opinions, including that Dr. Gross complied with the standard of care.
2
By signing the Consent Order, Dr. Pitman neither admitted nor denied the Board’s
findings of fact and conclusions of law.
3
Additionally, Dr. Pitman’s 11-page curriculum vitae was admitted, which contained
extensive information regarding his professional background and experience, including his
postgraduate training, military service, certifications, regional and national committee
assignments, hospital affiliations, professional affiliations, honors and awards, academic
appointments, national presentations, national courses, published abstracts, and published journal
2
During Stuart’s cross-examination, she advised the circuit court of her intention to
ask Dr. Pitman “about a series of actions where he was cited by the board of medicine for
violation of law and health regulations with regard to his practice” without asking Dr. Pitman
about any sanctions. Over Dr. Gross’s objection, the circuit court permitted Stuart to question
Dr. Pitman about certain findings set forth in the Consent Order.
Stuart prefaced her inquiry by asking Dr. Pitman to agree that he had given
certain opinions regarding “how you would expect a reasonably prudent surgeon to practice in
Virginia,” “that all doctors practicing in Virginia should practice within that standard,” and “that
practicing within the standard of care would include complying with state laws concerning the
practice of medicine and regulations of the board of medicine.” Without expressly referring to
the Consent Order, Stuart then proceeded to ask Dr. Pitman whether during his deployment to
Afghanistan, certain facts regarding his medical practice in Virginia were true. Stuart also asked
Dr. Pitman to agree that he “had an opportunity to either admit or deny these allegations in an
administrative hearing and [he] chose to not deny these allegations.” 4 On redirect, Dr. Pitman
addressed the matters raised by Stuart and explained the circumstances surrounding his
deployment, the placement of his patients, and the status of his Virginia medical practice during
his deployment.
B.
We conclude the circuit court did not abuse its discretion in determining that this
evidence was relevant to the jury in determining the weight accorded to Dr. Pitman’s opinions
and in permitting the cross-examination of Dr. Pitman on these matters. 5
“With regard to the admission of evidence, the responsibility for balancing the
competing considerations of probative value and prejudice rests in the sound discretion of the
articles.
4
During Stuart’s cross-examination, the circuit court sustained Dr. Gross’s objection to
Stuart’s question whether a “senior investigator for the Department of Health Professions
obtained a copy of [Dr. Pitman’s] treatment record for a patient” and confirmed with Stuart that
she would not, in further questioning, refer to the Department of Health Professions.
5
Contrary to Dr. Gross’s assertion otherwise, Rule 2:608 is not implicated because
Stuart’s inquiry into the findings contained within the Consent Order was not for the purpose of
attacking Dr. Pitman’s character for truthfulness.
3
trial court. The exercise of that discretion will not be disturbed on appeal in the absence of a
clear abuse.” Lombard v. Rohrbaugh, 262 Va. 484, 492 (2001) (citation omitted). “[W]hen a
decision is discretionary . . . the court has a range of choice, and . . . its decision will not be
disturbed as long as it stays within that range and is not influenced by any mistake of law.”
Martin v. Lahti, 295 Va. 77, 88 (2018) (quoting Landrum v. Chippenham & Johnston-Willis
Hosps., Inc., 282 Va. 346, 352 (2011) (citations and internal quotation marks omitted) (alteration
in original). “A great deal must necessarily be left to the discretion of the [trial court], in
determining whether evidence is relevant to the issue or not. Evidence is relevant if it has any
logical tendency to prove an issue in a case.” John Crane, Inc. v. Hardick, 283 Va. 358, 367
(2012) (quoting Avent v. Commonwealth, 279 Va. 175, 197-98 (2010) (citation and internal
quotation marks omitted) (alteration in original)).
Applying these principles, the circuit court acted within its discretion. Dr. Pitman
rendered expert opinions regarding the standard of care in Virginia based on his background,
knowledge and experience and provided the jury with a detailed account of his medical practice
history including his military experience and numerous deployments. Dr. Pitman agreed that his
opinions were based on how he would expect a reasonably prudent surgeon to practice in
Virginia, that all doctors practicing in Virginia should practice within that standard, and that
practicing within the standard of care would include complying with state laws concerning the
practice of medicine and regulations of the board of medicine. Therefore, evidence of Dr.
Pitman’s adherence to the standard of care in Virginia and the laws governing his practice was
relevant to the basis of his opinions and the weight to be accorded to his opinions by the jury. 6
III.
In his second assignment of error, Dr. Gross asserts that the circuit court erred in
allowing Stuart to inject consent into the case by denying Dr. Gross’s motions for mistrial and
6
We reject Dr. Gross’s argument that the evidence was inadmissible under Stottlemyer v.
Ghramm, 268 Va. 7 (2004), where we held that “specific acts of bad conduct or prior acts of
negligence are not relevant or admissible to show that a defendant was negligent and that such
negligence was a proximate case of a plaintiff’s injuries.” Id. at 13. The evidence elicited during
Stuart’s cross-examination of Dr. Pitman did not involve acts of bad conduct or negligence on
the part of a defendant to show that a defendant was negligent.
4
post-trial motions addressing its rulings on this matter and in refusing to provide instructions to
the jury that consent was not at issue.
A.
Prior to any witnesses being called at trial, Dr. Gross addressed the circuit court
and Stuart with the concern that Stuart would attempt to elicit testimony from Dr. Malone that
implied Dr. Gross exceeded the scope of consent. Stuart agreed that no issue of informed
consent would be raised. Stuart called Dr. Malone to testify as a fact witness regarding his
treatment of Stuart following the blepharoplasty, and as an expert witness on the issues of
standard of care and causation. Dr. Malone testified that, in his opinion, the muscle in Stuart’s
right eye and tendon in her left eye were cut as the result of the failure of Dr. Gross to comply
with the standard of care in Virginia. Stuart asked Dr. Malone: “Was there anything in Dr.
Gross’s office notes to indicate that he thought he was treating ptosis?” Dr. Malone replied: “He
– he planned and got consent for a blepharoplasty.”
Dr. Gross moved for a mistrial, arguing that Dr. Malone’s response raised an issue
of informed consent by implying that Dr. Gross exceeded the scope of the procedure to which
Stuart consented. The circuit court denied the motion for a mistrial, but expressed concern that
while Stuart did not make informed consent an issue, Dr. Malone’s response implied “that
somehow this defendant exceeded the scope of what was consented to.” In light of this concern,
the circuit court gave the following instruction to the jury: “I sustained an objection to the last
question put to Dr. Malone. And the Court is instructing you that you should not consider any
answer that Dr. Malone may have made to that last question.” 7
During closing argument, counsel for Stuart stated:
[W]hen Ms. Stuart went to see Dr. Gross, she went for one reason. She
went to have the puffiness removed from her eyes. That’s the only reason
she went there. We’re here today because Dr. Gross performed the
blepharoplasty . . . and then after he completed the blepharoplasty, he
damaged the levator muscle in the right eye and the levator tendon in the
left eye after he completed the blepharoplasty.
7
In addition to this language, Dr. Gross requested that the circuit court instruct the jury
that “there is no issue in this case as to informed consent or that there is no issue that Stuart did
not consent to the procedure performed.” The circuit court declined to include that language in
its instruction after expressing concern about bringing more attention to the issue of consent.
5
Dr. Gross objected on the grounds that the argument goes to exceeding the scope of consent.
The circuit court agreed, stating, “The clear implication was that [Stuart] went [to Dr. Gross] for
one procedure and got two, and it’s the second one that causes us to be here.” Dr. Gross renewed
the motion for mistrial, which the circuit court denied. The circuit court gave the following
instruction to the jury: “Ladies and gentlemen, the objection that was just made by the defendant
is sustained. You are to disregard the last statement, and I’ll ask [counsel] to please rephrase at
this time.” 8 The circuit court also directed counsel “not to argue anything that will imply that
[Stuart] came in for one thing allowing the jury to infer that somehow against her will or without
cause or anything else had that second exploration.” 9
B.
We conclude that the circuit court did not abuse its discretion in denying the
motions for a mistrial and post-trial motions addressing these rulings, or in failing to instruct the
jury that consent was not an issue in the case.
“A trial court’s ruling denying a motion for mistrial will be set aside on appellate
review only if the ruling constituted an abuse of discretion.” Allied Concrete Co. v. Lester, 285
Va. 295, 308 (2013) (citation and internal quotation marks omitted). “This broad discretionary
power reflects in part the principle that a jury is presumed to have followed a timely and explicit
cautionary instruction directing it to disregard an improper remark or question by counsel.”
Lowe v. Cunningham, 268 Va. 268, 272 (2004). “[A]bsent a manifest probability of prejudice to
an adverse party, a new trial is not required when a court sustains an objection to an improper
remark or question by counsel and thereafter instructs the jury to disregard the remark or
question.” Id. (citations omitted). However, where the prejudicial effect of an improper remark
or question is overwhelming and cannot be cured by a cautionary instruction, the court is
required to grant a new trial. Id.
The trial court’s determination whether a statement or question of counsel is
so inherently prejudicial that the prejudice cannot be cured by a cautionary
8
The circuit court declined Dr. Gross’s request to inform the jury that Stuart “is not
claiming in this lawsuit that Dr. Gross performed any procedure on her without her consent.”
9
Dr. Gross also made post-trial motions to set aside the verdict and for a new trial.
6
instruction must be guided by a consideration of several factors. These
factors include the relevance and content of the improper reference, and
whether the reference was deliberate or inadvertent in nature. The court also
must consider the probable effect of the improper reference by counsel. All
these factors must be considered because not every irrelevant statement or
question will result in prejudice to an opposing party. To justify a new trial,
the nature of counsel’s improper reference must be “likely to inflame the
passion or instill a prejudice in the minds of the jury.” Virginia-Lincoln
Furniture Corp. v. Southern Factories & Stores Corp., 162 Va. 767, 781
(1934).
Id. at 273 (citations and internal quotation marks omitted).
Applying these principles, the circuit court acted within its discretion. The first
motion for mistrial was made in response to Dr. Malone’s statement that Dr. Gross “planned and
got consent for a blepharoplasty.” Dr. Malone did not testify that Dr. Gross failed to obtain
informed consent and the circuit court found that Stuart did not make informed consent an issue.
In determining how to address Dr. Malone’s response, the circuit court considered the effect of
the statement as well as the possibility of bringing more attention to the issue of consent and
instructed the jury to disregard Dr. Malone’s response. The second motion for mistrial was
based on Stuart’s argument that she went to Dr. Gross “for one reason.” The circuit court
instructed the jury to disregard the remarks and directed counsel for Stuart “not to argue anything
that will imply that [Stuart] came in for one thing allowing the jury to infer that somehow against
her will or without cause or anything else had that second exploration.” The record demonstrates
that in both instances, the circuit court considered the probable effect of the statements,
concluded that the statements were not overwhelmingly prejudicial, and that any prejudicial
effect could be cured by the instructions given to disregard the statements. 10 No abuse of the
circuit court’s discretion in dealing with these matters has been shown.
IV.
For the foregoing reasons, we affirm the judgment of the circuit court.
10
Our resolution of Dr. Gross’s first two assignments of error renders it unnecessary to
address his third assignment of error that the circuit court erred in ruling it lacked authority to
address his post-trial motions.
7
This order shall be published in the Virginia Reports and certified to the said
circuit court.
JUSTICE McCULLOUGH, with whom JUSTICE POWELL joins, concurring.
I join the majority opinion. I write separately to emphasize a point concerning the
first assignment of error. Relying on the abuse of discretion standard, the Court affirms the trial
court’s decision to permit cross-examination of an expert based on adverse findings made in a
professional disciplinary proceeding. The credibility of an expert is often of paramount
significance. The fact that an expert has been subjected to professional discipline can be more or
less relevant to the expert’s credibility. An unbounded approach to impeachment in such
matters, however, could unfairly prejudice a party and distract the jury. To guard against these
dangers, trial judges should exercise their broad discretion to restrict, where appropriate, the
scope of this type of impeachment. See Lombard v. Rohrbaugh, 262 Va. 484, 492 (2001)
(“[T]he responsibility for balancing the competing considerations of probative value and
prejudice rests in the sound discretion of the trial court.”).
A Copy,
Teste:
Douglas B. Robelen, Clerk
8