Alban v. Fiels

210 Md.App. 1

61 A.3d 867

John J. ALBAN, Sr., et ux.

v.Michael A. FIELS.

No. 1038, Sept. Term, 2011.

Court of Special Appeals of Maryland.

Feb. 28, 2013.

Gregory J. Eichelman (William J. Blondell, Jr., on the brief) Baltimore, MD, for appellant.

Andrew T. Nichols (Rollins, Smalkin, Richards & Mackie, LLC, on the brief) Baltimore, MD, for appellee.

Panel: WOODWARD, WRIGHT and JAMES R. EYLER (Retired, Specially Assigned), JJ.

JAMES R. EYLER (Retired, Specially Assigned), J.

This case arises out of an automobile accident that occurred on June 11, 2009, in Baltimore County. There was evidence that the at-fault driver left the scene immediately after the accident, returned a few minutes later while the injured driver and passenger were still at the scene, laughing as he drove by, and then left the scene again. The issues are whether, in a personal injury claim based on negligent driving, the Circuit Court for Baltimore County erred in excluding testimony (1) by witnesses to the accident that they told the injured driver, while she was still in her truck, that appellee had fled the scene, returned and drove by the scene, laughing as he did so and (2) by the injured driver's treating psychologist that the injured driver told him about that conduct and that it formed the basis for his opinion as to a portion of the injured driver's emotional injury. We shall affirm and explain.

Factual and Procedural Background

Introduction

Ruth A. Alban and her husband John J. Alban, Sr., a passenger in her vehicle, appellants, were injured after their truck collided with another truck, operated by Michael A. Fiels, appellee. This lawsuit ensued, liability for negligence was uncontested, and the case was tried on the issue of compensatory damages. A jury awarded non-economic damages in the amount of $5,000 to Ms. Alban, “zero” damages to Mr. Alban, and noneconomic damages in the amount of $5,000 to both the Albans for their joint claim for loss of consortium. The trial court entered judgment for $10,000 plus costs.

Unable to convince the trial court to award them a new trial, the Albans brought this appeal. They complain that the trial court erred in precluding evidence of Mr. Fiels's conduct after the accident, arguing it was relevant to at least a portion of Ms. Alban's “psychic and emotional injuries”.

The traffic accident happened when Mr. Fiels failed to stay in his lane on Hyde Park Road and collided with a pickup truck driven by Ms. Alban. Police reported that the “Front left of [Mr. Fiels's truck] struck the front left of [the Alban's truck].” According to Ms. Alban, she was unable to get out of the truck after the collision and remained there until firemen arrived, who assisted her. Mr. Alban exited the pickup truck through the right passenger door.

Mr. Fiels left the scene of the accident immediately after the collision. He drove into an area without an outlet, however. He turned around, drove by the accident scene without stopping, and continued on his way. A witness followed him, and Mr. Fiels was soon arrested at a nearby shopping mall. Witnesses at the scene would have testified, if permitted, that Mr. Fiels was laughing when he drove by the accident scene while Ms. Alban was still in her truck.

The Albans, who were in their 70s, were taken to the University of Maryland shock trauma center where they were evaluated and released. They complained of neck, back, and shoulder pain, and Ms. Alban complained of an injury to her knees. The Albans consulted an internist, Dr. Mark Abraham (“Marcelle”) Reischer. They received physical therapy and pain medication. The primary claim for damages, however, made clear at the time of trial, was Ms. Alban's claim for emotional distress, manifested primarily by crying, anxiety, and sleeplessness.

Preliminary Rulings

On October 30, 2009, the Albans filed suit in circuit court seeking compensatory damages for injuries due to Mr. Fiels's negligence and “intentional acts of outrage.” The complaint contained four counts. Count one asserted a claim for damages for physical and emotional injuries to Mr. Alban, and count two asserted a claim for damages for physical and emotional injuries to Ms. Alban, both based on negligent driving. Count three asserted a claim for “Intentional Acts of Outrage.” In that count, the Albans alleged that Mr. Fiels intentionally left the scene and, after reaching a dead end, reversed direction, drove past the scene of the accident, and fled. Count four asserted a joint claim for loss of consortium. In each of counts one, two, and four, the Albans sought $500,000 in damages. In count three, they sought $1,000,000.00 in damages for “intentional misconduct.”

On March 16, 2011, Mr. Fiels filed a motion to dismiss or for partial summary judgment, asserting that “Count III of Plaintiffs' Complaint fails to state a recognized cause of action for Intentional Acts of Outrage against [him].”

At the beginning of trial, on May 2, 2011, the court addressed Mr. Fiels's motion. Counsel for the Albans argued that count three was intended to assert the tort of intentional infliction of emotional distress, as it is known in Maryland law. This cause of action, he asserted, was based on Mr. Fiels's outrageous conduct. The trial court ruled that the count did not allege all of the elements of that cause of action and granted the motion. The Albans do not challenge that ruling on appeal.

After that ruling, Mr. Fiels's counsel moved to “exclude any testimony regarding [his] failure or alleged failure to immediately stop at the accident scene.” Mr. Fiels admitted liability as to negligence and argued that such testimony was no longer relevant because of his admission of liability and dismissal of count three. His counsel argued in the alternative that, assuming such evidence were relevant, its probative value would be outweighed by its prejudicial impact.

Following extensive argument, the trial court excluded evidence relating to Mr. Fiels's post-accident actions, explaining her decision, in pertinent part, as follows:

THE COURT: All right. I mean the difficulty though is under the case law, a lot of what you're talking about are simply not appropriate elements of damage or relevant for consideration by the jury. The damage,—

* * *

I've heard the argument and, with all due respect, at some point I rule on it and you and I are going to disagree on it. I understand from a human standpoint what you're talking about and, you know, I'm certain if I thought somebody caused me injury, smirked, drove off or could have cared less, I'd be outraged. But the question isn't outrage, it's a question of what were the physical injuries that were caused, the extent and duration, the psychological injury that she sustained and to that extent, you've got to let me finish.

* * *

THE COURT: To the extent that your doctor got in testimony¹ that part of her PTSD is going to be related to being trapped in the car and worrying whether she would live or die, that's clearly relevant and clearly admissible. To the extent she also stated that part of the thing that contributed to that was that he didn't even bother to see if she was okay, that's coming in and I think that that's marginally admissible but it's in the middle of an answer and counsel's not jumping up and down and screaming I should try and parse that out somehow. But his behavior afterwards, the fact that he's at a Food Lion shopping and the fact that other people will say he smirked in some way, those things don't relate to her damages and her injury. All they do is invite outrage and, you know, punitive response from a jury as opposed to an appropriate dispassionate consideration of what's the nature and extent of her injury. So for those reasons, I, I am granting the Motion in Limine as to the after behavior of the defendant. I don't think it's relevant or admissible.

The Albans' Proffer

Following the trial court's ruling, the Albans' counsel proffered the testimony that his clients would elicit if permitted to do so. Because it is the exclusion of this evidence that forms the basis of the Albans' arguments on appeal, we set forth their proffer in its entirety:

[THE ALBANS' COUNSEL]: If Your Honor please, I'd like to proffer evidence that has been excluded and we'd start back actually with the deposition of [Mr. Fiels] who stated, the question was asked of him, and I would have called him, we're, we're now back in June 11th of '09, “When you struck the vehicle occupied by the Albans, did it occur to you that someone might be injured in that vehicle?

“Answer: No.

“Did you have any concerns over whether anyone was injured in that vehicle?

“Answer: At the time, I was worried about myself.”

Again on his deposition, I had asked him,

“So I understand that you were having a panic attack because you hit somebody, but you weren't concerned over whether anyone was injured?

“Answer: I can't tell you what my thoughts were at the time but I was concerned about myself, yes.

“Question: But nobody else. Is that correct?

“No, not at that time.”

The witnesses, if they had been allowed to testify, Mrs. Stella Cox would testify that she heard the collision, she didn't see the collision, she heard the horn, she heard the collision, she immediately ran out and she saw the truck, a large white unmarked truck driving southbound on Hyde Park Road. Knowing that there was no way out in that direction, she called to her nephew, who was working in the yard, to follow that truck. The nephew, Antoine Stamper, who would testify, had, had he, that he followed the truck and then followed the truck back past the scene again, the truck slowed and then sped up to go and drove approximately a mile away into a Food Lion shopping center, parking his vehicle and then getting out to go. Ms. Cox back [sic] would continue with her testimony that while she was standing behind the pickup truck, she observed the defendant's truck proceeding towards her, slowing down, he looked...