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MORRIS v. SLOAN8/6/1997
[ 1] The Superior Court (Knox County, Marsano, J.) granted a motion filed by the to report this case for our determination of questions of law involved in the court's denial of their motion in limine filed in a medical malpractice action. In that motion the plaintiffs sought to exclude from evidence at the trial the unanimous findings of a prelitigation screening panel due to the alleged bias of the attorney panel member. The defendants assert that the report was improvidently granted. We agree and discharge the report.
I.
[ 2] The facts have been submitted by stipulation. The medical malpractice action, filed in 1993, addresses the plaintiffs' claim that Dale Morris suffered severe brain damage as a result of the defendants' negligence in 1986. That action has been consolidated with another lawsuit in which the plaintiffs allege legal malpractice on the ground that their original attorneys failed to commence the medical malpractice action within the applicable statute of limitations. In June 1995 the court (Marden, J.) determined that pursuant to the Maine Health Security Act, 24 M.R.S.A. § 2851-2859 (1990 & Supp. 1996), the medical negligence issues had to be submitted to a prelitigation screening panel before any other issues, including the applicability of the statute of limitations, could be determined.
[ 3] The Act requires that each prelitigation screening panel include an attorney. In
[ 4] In January the chair scheduled the panel hearing for April 5. On or about April 1 she notified the parties that the attorney she had selected would not be able to serve and gave them the name of a second attorney who was willing to serve. When that day or the next the plaintiffs pointed out that the second attorney's law firm had previously represented them in a
[ 5] Within several days the plaintiffs learned that the attorney panel member recently had solicited legal business from the defendants' insurers. The plaintiffs asked the panel chair to set aside the panel findings given this information, and proposed that the parties waive a second panel hearing and proceed to trial. The chair responded that she did not have authority to vacate panel findings based on an alleged appearance of conflict by a panel member, and reiterated that she screened panelists only "for actual conflicts." The plaintiffs subsequently filed in the Superior Court both a complaint alleging medical negligence and a motion in limine to exclude the panel findings from evidence on grounds that the constitution of the panel was in violation of 24 M.R.S.A. § 2852 and Superior Court Rule 10(d)(iii). After a hearing, the court denied the motion, concluding that the panel was constituted appropriately pursuant to the statutory requirements, and that the plaintiffs had waived their opportunity to challenge the attorney panel member by participating in the hearing without raising any objection prior to its commencement.
[ 6] The plaintiffs filed a motion pursuant to M.R.Civ.P. 72(c) requesting that the court report to this Court the "question of law whether the appearance of bias of a anel ember and the fact that [they] did not know nor had any reason to know of the circumstances giving rise to said appearance of bias of said anel ember renders inadmissible the anel findings." After a hearing the court granted the report and invited us to clarify the meaning of the statutory provision that directs panel chairs to "inquire as to any bias on the part of a panel member or as requested by any party," thereby raising issues that necessarily would involve analysis of the waiver claim.
II.
[ 7] "A report pursuant to Rule 72(c) is an exception to the fin
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