Tyler v. Judd, 2016 WL 3570467 (Md. Ct. Spec. App. June 30, 2016) (unreported):

*1 This case arises out of a failed sterilization procedure performed on Amanda Tyler, appellant. Despite having a sterilization procedure performed in October 2009, appellant subsequently became pregnant and gave birth to a healthy baby boy. As a result, appellant filed suit against her OB/GYN, Dr. Michael Judd, and his practice, Chesapeake Women’s Health, LLC (“Chesapeake”), appellees, in the Circuit Court for Talbot County. Among other things, appellant alleged that Dr. Judd failed to obtain her informed consent before performing the procedure, because he erroneously told her that it was “a non reversible one hundred percent sterilization” and “pain free.” Before the case could proceed to trial, however, Dr. Judd committed suicide.¹ Appellant asked the court to impose sanctions against appellees for destruction of evidence, with the evidence being Dr. Judd himself. The court denied the motion. The case proceeded to trial and appellant presented her case-in-chief, after which the court granted judgment in favor of appellees.

 

1	After Dr. Judd’s death, Jill W. Judd, Personal Representative of the Estate of Michael Gordon Judd, was substituted for Dr. Judd as a defendant in the instant case. Our use of the term “appellees” shall hereafter refer to the personal representative of Dr. Judd’s estate and to Chesapeake.

On appeal, appellant presents two questions for our review, which we have rephrased:²

2	Appellant’s questions, as presented in her brief, are as follows: 1. Did the trial court err by granting a directed verdict in favor of Appellees? 2. Did the trial court err by denying Appellant relief following the Self–Inflicted Death of her Treating Physician?

1. Did the trial court err by entering judgment in favor of appellees at the conclusion of appellant’s case-in-chief?

2. Did the trial court abuse its discretion by denying appellant relief for destruction of evidence?

We answer both questions in the negative and, accordingly, affirm the judgment of the circuit court.

BACKGROUND

Appellant first came into contact with Dr. Judd on September 6, 2004. She was pregnant at the time and met with Dr. Judd regarding a possible miscarriage. Appellant did miscarry, but became pregnant again quickly afterwards with her second child. Thereafter, appellant continued her OB/GYN care with Dr. Judd at Chesapeake. As early as August 2007, appellant discussed the possibility of a tubal ligation and other forms of birth control with a midwife at Chesapeake. At the time, appellant and her husband had two children. By 2009, they decided that they did not want to have any additional children. Appellant told her husband that she wanted a tubal ligation, because both her mother and sister had the procedure done without any complications.

On September 16, 2009, appellant met with Dr. Judd for her annual appointment. She informed Dr. Judd that she wanted to schedule a tubal ligation. Appellant testified that Dr. Judd responded to this request by talking to her about a different kind of sterilization procedure called Essure. Essure is a sterilization procedure whereby coil devices are placed in the fallopian tubes, causing scar tissue to form over the coils. The scar tissue prevents sperm from passing through the tubes to the egg, thus preventing pregnancy. Appellant stated that Dr. Judd told her that the Essure procedure was “a non reversible one hundred percent sterilization. Pain free in the same day procedure in office.” She stated that she was not provided with any pamphlets concerning the procedure, and that they did not discuss potential side effects. Dr. Judd’s note from the visit stated:

*2 We discussed all contraceptive options including hormonal contraception, barrier methods, and both male and female sterilization. We also discussed natural family planning, abstinence, and the IUD. Pt interested in in [sic] office [E]ssure.

Based on her conversation with Dr. Judd, appellant decided to undergo the Essure procedure.

On October 29, 2009, Dr. Judd performed the Essure procedure on appellant. Four months later, in February 2010, Dr. Judd took an X-ray to confirm that the Essure coils were properly placed and appellant’s tubes were blocked. Despite such confirmation, appellant claims that she suffered from constant, stabbing abdominal pain in the months following the procedure. Furthermore, in November 2010, appellant discovered that she was pregnant with a third child. On July 5, 2011, appellant gave birth to a healthy baby boy. Subsequent to such birth, appellant had another doctor remove the coils, after which she was pain free.

On July 22, 2013, appellant filed suit in the Circuit Court for Talbot County against Dr. Judd and Chesapeake for lack of informed consent, breach of express warranty, and loss of consortium.³ With regard to the informed consent count, appellant alleged that

3	Appellant never alleged that the sterilization procedure itself was incorrectly performed. Appellant’s husband joined her as a plaintiff on the lack of consortium count.

[b]y failing to accurately and fully inform [ ] [appellant] of the risks associated with the Essure Procedure, including that of an unwanted pregnancy and years of moderate to severe abdominal pain, [Dr.] Judd breached his duty to secure the fully informed consent of [appellant] prior to commencing the Procedure ... Had [appellant] been aware that such a result would have ensued, she would have either remained on oral contraceptive birth control, which had been previously successful for many years, or undergone a tubal ligation.

On July 30, 2014, in the middle of the discovery phase of the litigation, Dr. Judd committed suicide. Dr. Judd’s wife, Jill Judd, became the personal representative of his estate, and was substituted for him as a defendant in this action.

On August 29, 2014, appellant filed a motion for sanctions pursuant to Maryland Rule 2–433. In her motion, appellant asserted that, by taking his own life, Dr. Judd had intentionally destroyed evidence that would have been obtained through his testimony. Appellant asked the court for relief in the form of “[a]ny and all remedies set forth in Maryland Rule 2–433 up to and including an[ ] Order of Default.” A hearing was held on the motion on November 3, 2014. The trial court denied the motion for sanctions, stating:

This is a terrible situation. And mental illness is a fatal disease or can be a fatal disease. Like cancer. And apparently Dr. Judd had a fatal disease and he died of the disease. I don’t think that his purpose was to frustrate this litigation. His purpose was to end his life for whatever reasons and we don’t know. I’d look at this as different from somebody taking a shredder and shredding documents or taking a hard drive and burning it. It is a sad end to his life and I’m going to deny your motion.

*3 (Emphasis added).

Prior to trial, appellant did not identify any medical experts that she planned to call as witnesses. Appellees identified several medical experts, including Dr. Samuel Akman. Dr. Akman’s deposition was taken on October 13, 2014. In his deposition, Dr. Akman testified about the Essure procedure and its risks and effectiveness, as well as the alternatives to Essure, and their risks and effectiveness. He identified tubal ligation and vasectomy as the main alternatives. Dr. Akman stated that the success rate for the Essure procedure is approximately 99.8 percent and that the success rate for tubal ligation is somewhere between 99–99.5 percent. He also testified that the failure rate for birth control pills is around eight to ten percent per year. Dr. Akman testified that no sterilization procedure is 100 percent effective in preventing pregnancy.⁴ Although appellant initially subpoenaed Dr. Akman to testify at trial, she later released him from his subpoena and instead decided to read selected portions of his deposition into evidence.

4	Dr. Akman did state that, although some doctors are of the opinion that a hysterectomy is 100 percent effective, he knew of one case where a patient had an ectopic pregnancy after a hysterectomy.

On November 5, 2014, prior to trial, the trial court granted a Motion for Partial Summary Judgment in favor of appellees on the loss of consortium claim. Appellant does not challenge that ruling on appeal.⁵ 

5	Accordingly, appellant’s husband is not a party to the instant appeal.

The trial on the remaining two claims commenced on May 26, 2015. After opening statements, appellant read designated portions of Dr. Akman’s deposition into evidence. The portion of the deposition read to the jury covered the Essure procedure and its risks, sterilization and its risks, and what informed consent means. Appellant did not read any aspects of the deposition that related to the success rate of Essure, the alternatives to Essure, or the risks and success rates of alternatives.

After Dr. Akman’s deposition was read, appellant took the stand and testified. She reiterated her claim that she was interested in a tubal ligation, but was convinced by Dr. Judd that an Essure procedure was preferable because it was “one hundred percent, non reversible” and “pain free.” Appellant conceded that she signed a Documentation of Informed Consent on the day of her procedure. The form contained the following language, along with the signature of Dr. Judd:

I have informed the patient of the above diagnosis [V25.2 sterilization] and provided sufficient information about the above procedure [Essure tubal] for the patient to give informed consent. The patient has been made aware of treatment options as well as the potential risks and benefits, side effects, likelihood of success and potential problems with recuperation of the planned treatment and other options.

The form then contained a statement, with appellant’s signature, that appellant had discussed the above information with Dr. Judd. The form contained no specifics regarding the “sufficient information” given by Dr. Judd to appellant.

After testifying, appellant presented several more fact witnesses, but did not call any medical experts to testify. At the close of appellant’s case, appellees made a motion for judgment, arguing that appellant failed to present expert medical testimony that was required for a prima facie case of a lack of informed consent. In reference to Dr. Akman’s testimony and the requirement of expert testimony, appellees argued:

*4 This is the only testimony before this jury and this Court with regard to the issues, elements and requirements of informed consent. In Sard v. Hardy, [281 Md. 432 (1977) ], [McQuitty v. Spangler, 410 Md. 1 (2009) ], Shannon [v. Fusco, 438 Md. 24 (2014) ], all of those cases have very specific requirements. It needs to start out with the concept that the Plaintiff did not identify any expert with regard to the standard of informed consent as a primary case in chief expert.... The requirement under the three cases that I’ve referenced requires that the Plaintiff establish that there is a duty to provide options or alternatives. Those alternatives and options must be discussed and explained so that a person knows what they are as opposed to just saying them. Number two, there must be testimony with regard to the probability of success of any proposed options or treatments. There must be expert testimony to testify about the risks of any options and the potential of those risks. The risks that are required under the law are not all of the risks but rather material risks. “Material risks are those risks that a doctor should understand that a reasonable person would need to know in reaching an informed decision.” Expert [testimony] in summary is required, experts are required for options and alternatives, to explain the nature of the options, the alternatives, to identify and explain material risks, the frequency of the risks and the probability of success.

(Emphasis added).

The trial court granted the motion for judgment in favor of appellees on both claims.⁶ In granting judgment on the lack of informed consent claim, the court stated:

6	Appellant does not challenge the judgment in favor of appellees on her breach of express warranty claim.

The primary count in this matter required very little evidence which was readily available and not produced. Sard v. Hardy as [appellees’] counsel notes, requires that expert testimony is needed to establish the nature of the risks inherent in a particular treatment. The probabilities of therapeutic success, the frequency, the occurrence of a particular risk, the nature of available alternatives to treatment and whether or not disclosure would be detrimental to the patient. In this case expert testimony is necessary to support Count 1 to assert what the risks were, what the alternative treatments were and would [be] reasonable, such that a jury could conclude that a reasonable person in [appellant’s] position would have opted for a different procedure or some different alternatives. I have read Dr. Akman’s deposition three times. My law clerk has read the deposition. There is more than adequate evidence in the deposition to show there are risks with respect to the Essure procedure. There is not one wit of testimony with respect to alternatives, with respect to the percentages of their failure, IE, even the percentage of the Essure failure. For the reasons set forth by [appellees’] counsel and the Motion for Judgment I regret that I must grant the Motion for Judgment with respect to Count 1 also.

*5 (Emphasis added).

On June 1, 2015, appellant filed her notice of appeal.

DISCUSSION

***

II. Sanctions for Destruction of Evidence

“Our review of the trial court’s resolution of a discovery dispute is quite narrow; appellate courts are reluctant to second-guess the decision of a trial judge to impose sanctions for a failure of discovery. Accordingly, we may not reverse unless we find an abuse of discretion.” Sindler v. Litman, 166 Md.App. 90, 123 (2005) (citations omitted).

*12 Rule 2–433 allows the trial court to award sanctions for discovery violations. In the instant case, appellant filed a motion for sanctions, asserting that Dr. Judd intentionally destroyed evidence. The alleged evidence at issue was Dr. Judd himself, with appellant arguing that Dr. Judd “intended to destroy and succeeded in destroying himself” by committing suicide, thus depriving appellant of Dr. Judd’s deposition and trial testimony. The trial court denied the motion, stating that Dr. Judd’s suicide was caused by mental illness, not this pending litigation, and that his purpose was not to frustrate this litigation.

Appellant concedes that there are no cases supporting the concept of suicide as a means of destroying evidence, namely the potential testimony of the person committing suicide. Nevertheless, appellant argues that, by applying the general rules on destruction of evidence and spoliation, Dr. Judd’s potential testimony qualifies as “evidence” that was purposefully destroyed to frustrate this case. We disagree.

Appellant has the burden of proving the

four elements generally regarded as being prerequisite to a court’s imposition of spoliation sanctions:

(1) An act of destruction;

(2) Discoverability of the evidence;

(3) An intent to destroy the evidence; and

(4) Occurrence of the act at a time after suit has been filed, or, if before, at a time when the filing is fairly perceived as imminent.”

Klupt v. Krongard, 126 Md.App. 179, 199 (emphasis added), cert. denied, 355 Md. 612 (1999).

In our view, appellant failed to prove that she is entitled to spoliation sanctions, much less that the trial court abused its discretion. First, appellant presented no evidence of an intent on the part of Dr. Judd to intentionally destroy evidence, the third required factor under Klupt. Second, there can be no rational inference of an intent to destroy evidence from the evidence in the record of this case.

Appellant submitted no evidence that Dr. Judd killed himself with the intent of destroying the evidence that was in his mind. The only evidence on this issue is the existence of the instant lawsuit and Dr. Judd’s suicide during the pendency of that suit. There was no evidence adduced regarding Dr. Judd’s reaction to the lawsuit. Dr. Judd’s partner, Dr. Patrick O’Brien, was deposed in the instant case before Dr. Judd’s suicide. Dr. O’Brien testified that he never spoke to Dr. Judd about his deposition. Appellees also point out that appellant was previously the subject of a completely separate medical malpractice lawsuit, and that “he did not commit suicide before his deposition or during the pendency of that case.”

In addition, no rational juror could infer from the facts of the case sub judice that destroying evidence was Dr. Judd’s intention in committing suicide. Appellant provides no link between the act of suicide and an intent to destroy evidence. Appellant’s argument that Dr. Judd’s suicide could be viewed as an attempt to avoid the shame and embarrassment of an adverse malpractice verdict is wholly speculative. Furthermore, although the procedure in this case was unsuccessful, the ultimate outcome was that appellant gave birth to a healthy baby. Given such outcome, an inference that this case was the reason for Dr. Judd’s suicide is even more speculative.

*13 Finally, it is unlikely that appellant suffered any actual prejudice as a result of Dr. Judd not being available to testify. First, there is no way to know what the allegedly destroyed evidence was, because Dr. Judd had not yet testified by way of a deposition. Second, with Dr. Judd no longer available, the only evidence in this case was appellant’s testimony and Dr. Judd’s notes. Dr. Judd’s notes were very general, simply mentioning that he had discussed the various birth control options and alternatives with appellant. Thus appellant was probably better off without Dr. Judd’s testimony, because he most likely would have contradicted appellant’s claims regarding whether he accurately discussed the risks and success rate of Essure, as well as the nature of the available alternatives. Without Dr. Judd’s testimony, appellant’s version of events remained unchallenged. Therefore, there was no showing of actual prejudice to appellant as a result of Dr. Judd’s suicide.

For the foregoing reasons, we hold that the trial court did not abuse its discretion when it denied appellant’s motion for sanctions.

JUDGMENT OF THE CIRCUIT COURT FOR TALBOT COUNTY AFFIRMED; APPELLANT TO PAY COSTS.