Appeals from the Superior Court of the District of Columbia (C-8459-03) (Hon. Natalia Combs Greene, Trial Judge).
The opinion of the court was delivered by: Thompson, Associate Judge
Before WASHINGTON, Chief Judge, THOMPSON, Associate Judge, and FERREN, Senior Judge.
Through an amended complaint filed on February 5, 2004, plaintiff/appellant Sanya Coulter brought suit in the Superior Court against defendants/appellees -- three physicians and a physician's group -- alleging that they were negligent in diagnosing and treating her breast cancer. The matter progressed to trial, and after Coulter had put on four of her witnesses but before she had concluded the presentation of her case, the trial judge, the Honorable Natalia Combs Greene, directed verdicts in favor of each of the defendants/appellees, reasoning that Coulter could not, even with the additional witnesses that she planned to call, establish that (any of the) defendants were liable for medical malpractice. Coulter appeals from that final judgment and from the court's order awarding costs and attorneys' fees. She also challenges several of the court's pre-trial rulings, including the court's denial of her motion to amend her complaint to add allegations of intentional misconduct by defendant/appellee Terrence Fullum, the court's orders granting defendants' motions in limine to exclude certain evidence, and the court's order requiring the parties not to disclose information contained in the record. In addition, Coulter contends that Judge Combs Greene was biased in favor of defendants/appellees, erred in denying Coulter's pre-trial Motion for Judicial Disqualification, and abused her discretion by declining to recuse herself and to disclose any relationships she might have with the defendants/appellees or their malpractice insurer.
We share appellees' perception that Coulter purports to "find error in nearly every ruling made by the Trial Judge since the inception" of this litigation. We admonish her counsel that such a scattershot approach to briefing casts doubt on every claim and creates a substantial risk that truly meritorious claims inadvertently will be overlooked.
Notwithstanding, we discern merit in a few of the points that Coulter raises. We are persuaded by her argument that the trial court's dismissal of her claim against appellee Fullum was premature and that Coulter and breast surgeon Marie Pennanen, one of Coulter's designated experts, should have been permitted to testify. In addition, we agree with Coulter that the court entered an overbroad confidentiality order and erred in granting the request by appellees Eugene Taylor and Gerald Family Care, P.C., for attorneys' fees. In all other respects, we affirm the trial court's rulings. We also reject Coulter's claims of "partisan misconduct" by the trial judge.
I. Factual Background and Coulter's Theories of Liability
We begin with a brief overview of the factual background as alleged by Coulter, supplying additional detail infra, as we analyze Coulter's claims. On August 28, 2001, Coulter was seen by Dr. Eugene Taylor, a family practitioner associated with Gerald Family Care, P.C., and reported to him her concern about a "lump" she had noticed in her left breast. Dr. Taylor -- who, Coulter alleges, performed an inadequate one-finger examination of her breast -- told her that the lump was a harmless cyst. On November 13, 2002, Coulter reported the lump to Dr. Nixon Asomani, a gynecologist. Dr. Asomani, who identified a cyst or mass in Coulter's left breast, ordered a sonogram, which was performed on December 7, 2002. Seeing the result of the sonogram, Dr. Asomani referred Coulter on December 26, 2002 to Dr. Terrence Fullum, a surgeon, for follow-up. Coulter contends that Dr. Asomani "failed to properly advise [her] concerning the urgency for identification of the lump and the available options." She also alleges that Dr. Fullum "negligently delayed" Coulter's initial consultation until January 30, 2003, and that, even though he saw her sonogram that showed an irregular breast mass, he scheduled her for a non-urgent "general screening mammogram."
The mammogram was performed on March 21, 2003. After Dr. Fullum received the 4 mammogram results, he met with Coulter on March 25, 2003 and told her that she would need a biopsy. Dr. Fullum performed the biopsy on April 1, 2003. On April 17, 2003, Dr. Fullum informed Coulter that she had cancer and recommended a mastectomy. He performed the mastectomy on June 11, 2003. Coulter alleges that Dr. Fullum negligently delayed scheduling the diagnostic procedures that would have detected her cancer, and negligently delayed performance of the mastectomy.
Overall, Coulter asserts that because of appellees' negligence, her breast cancer "grew from a small cancer with a favorable prognosis in August 2001 to a massive cancer with lymph node involvement and a very unfavorable prognosis in June 2003."
At trial, Coulter called defendants Taylor and Fullum and also called two of her designated experts, Dr. John Woodyear and Dr. Howard Abel. Dr. Fullum called one witness, Dr. Rebecca Zuurbier, out of turn. Coulter then sought to read into the record the deposition testimony of her expert Dr. Joe Haines, and to call her expert Dr. Marie Pennanen. The court would not allow the testimony of either witness, concluding, on the basis of excerpts from their deposition testimony, that neither would testify that any defendant breached the standard of care. Since no expert had testified that any of the defendants breached the standard of care, and since the only remaining witnesses that Coulter planned to call (Coulter herself and possibly another lay witness, Quawanna Thomas) were not qualified to testify that any of the defendants breached the standard of care, the court entered directed verdicts in favor of each defendant. Thereafter, the court granted the motions by defendants Fullum, Taylor and Gerald Family Care for costs and also granted the motion by defendants Taylor and Gerald Family Care for attorneys' fees. This appeal followed.
II. The Appearance of Bias and Alleged "Partisan Misconduct"
We begin by considering Coulter's claim that Judge Combs Greene had an appearance of partiality or an actual bias in favor of defendants/appellees that tainted both the pre-trial and trial proceedings and "deprived [Coulter] of her right to an impartial adjudicator."
As the basis for her claim about the appearance of partiality, Coulter asserts that Judge Combs Greene is the spouse of a physician who is "of the same ilk as the appellee physicians" and who "was insured under the same Malpractice pool as the appellees." She argues that this (purported) circumstance was sufficient to "lead an objective observer . . . reasonably to question the judge's impartiality," Mejia v. United States, 916 A.2d 900, 903 (D.C. 2007), and that this purported appearance of bias made it inappropriate for Judge Combs Greene to dispose of Coulter's pre-trial Motion for Disqualification simply by describing a reasonable basis for each of the pre-trial rulings in appellees' favor. Coulter further contends that Judge Combs Greene was required to articulate her reasons for denying Coulter's motion requesting that the judge "disclose information relative to her status as a medical spouse and medical liability coverage."*fn1
We see no need to discuss in detail the examples of purported bias that Coulter raised in her pre-trial Motion for Disqualification, which focused primarily on Judge Combs Greene's decisions to re-set deadlines for discovery and dispositive motions. We are satisfied from our review of the record that, substantially for the reasons Judge Combs Greene described in her order denying the motion, Coulter's claims of demonstrated bias do not withstand scrutiny. We do agree with Coulter that in her order, Judge Combs Greene should have responded not only to Coulter's claims of demonstrated bias, but also to Coulter's claim alleging an appearance of partiality. That is because "a judge must recuse from any case in which there is an appearance of bias or prejudice sufficient to permit the average citizen reasonably to question the judge's impartiality." Garrett v. United States, 642 A.2d 1312, 1315 (D.C. 1994) (internal punctuation omitted).*fn2 But we also conclude that the omission was harmless, because the putative circumstances that Coulter describes are not ones as to which "an objective person, informed of the trial proceedings, could reasonably conclude an appearance of bias existed." Mejia, supra, 916 A.2d at 903.
Canon 3 (E)(c) of the District of Columbia Courts Code of Judicial Conduct states that:
A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including . . . where . . . the judge's spouse . . . has an economic interest in the subject matter in controversy . . . or has any more than de minimis interest that could be substantially affected by the proceeding.
CODE OF JUDICIAL CONDUCT OF THE DISTRICT OF COLUMBIA COURTS, Canon 3 (E)(c) (1995).*fn3 The Code nowhere suggests that the mere fact that a judge's spouse belongs to the same profession as a party is enough to create an appearance of partiality. Cf. Klein v. Dietz, No. 95-CA-47, 1998 Ohio App. LEXIS 6196, at *35 (Ohio Ct. App., Dec. 16, 1998) ("To disqualify every judge from a medical malpractice suit merely because they are a member of some hospital board or have a family member in the practice of medicine would be extremely impractical").
Moreover, the Code states that an "economic interest" denotes "ownership of a more than de minimis legal or equitable interest, or a relationship as officer, director, advisor or other active participant, in the affairs of a party." CODE OF JUDICIAL CONDUCT, supra, Terminology (emphasis added). Nothing in the Code suggests that the mere (purported) fact that a judge's spouse belongs to the same malpractice insurance pool as a defendant physician is enough to raise an appearance of bias.*fn4
To discern the appearance of partiality that Coulter posits, we would have to make a number of assumptions for which there is no support in the record: that Judge Combs Greene's spouse was insured by the same malpractice insurance company and in the same malpractice pool as one or more of the defendants, and that a judgment against one or more of those defendants in this case would have a significant adverse impact on the malpractice insurance premiums paid by the judge's spouse.
In other words, we would have to "layer several speculative premises on top of one another to reach [the] speculative conclusion" that Coulter would have us reach. Scott v. Metropolitan Health Corp., 234 Fed. Appx. 341, 356 (6th Cir. 2007) (quoting Sensley v. Albritton, 385 F.3d 591, 600 (5th Cir. 2004)). Such an "edifice of conjecture will not support an objective conclusion that [the trial judge] has a financial interest in the outcome of this case." Scott, 234 Fed. Appx. at 357 (quoting Sensley, 385 F.3d at 600); see also York v. United States, 785 A.2d 651, 656 (D.C. 2001) (citing authority that "speculation will not satisfy the requirements for disqualification of a judge") (citations omitted); Hoatson v. New York Archdiocese, 280 Fed. Appx. 88, 90 (2d Cir. 2008) ("Any pecuniary interest that Judge Crotty's brother may have in the instant litigation by virtue of his status as a partner in a law firm that represents the [defendant] Archdiocese in other litigation is too 'remote, contingent, indirect or speculative' to lead a reasonable person to question Judge Crotty's impartiality"). We agree with an observation by the Supreme Court of Alabama in a case in which that court considered whether an appearance of bias arose from the fact that defense expert witnesses were members of the same mutual liability insurance company as the defendant: the "potential for bias . . . due to . . . coverage under a professional liability policy is so remote as to be virtually non-existent." Otwell v. Bryant, 497 So.2d 111, 115 (Ala. 1986).
In light of the remoteness of any potential for bias, we also cannot agree that Judge Combs Greene abused her discretion in denying Coulter's request for disclosure. Coulter is correct that under the Code -- specifically, the Commentary to Canon 3 (E) -- a judge should disclose on the record of her own accord "information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification." CODE OF JUDICIAL CONDUCT, supra, Canon 3 (E) cmt. However, "the law affirmatively shields judges from . . . questioning" such as Coulter tendered to Judge Combs Greene. Porter v. Singletary, 49 F.3d 1483, 1489 n.10 (11th Cir. 1995) (citing United States v. Morgan, 313 U.S. 409, 422, 61 S.Ct. 999, 85 L.Ed. 1429 (1941)).
Once trial commenced, Coulter did not renew her request that the trial judge recuse herself for bias, and appellees argue that we may review only for plain error Coulter's claims about the trial judge's "partisan misconduct" during voir dire and trial. Assuming, however, that the recusal motion remained alive, and with due regard for any "risk of undermining the public's confidence in the judicial process," (Thaddeus) Foster v. United States, 615 A.2d 213, 222 (D.C. 1992), we have painstakingly reviewed each of Coulter's many examples of claimed "partisan misconduct" by the trial judge. We see no evidence of partisan misconduct that could warrant relief under any standard of review.
This already-quite-lengthy opinion would require many more pages were we to address here each of Coulter's allegations of partisan misconduct. We discuss only a sampling (which, we think, will suffice to convey the tenor of the remaining examples).*fn5
Several of Coulter's allegations of "partisan misconduct" focus on jury selection. One is that Judge Combs Greene refused to strike for cause a prospective juror, the daughter of a cardiologist, who said that she "maybe [had] a little bit of question about the validity of some" large medical malpractice settlements, and who expressed some concern about "whether there should be any cap on medical malpractice things" and about "high [malpractice] insurance premiums charged to OBGYNs." But the juror also had a history of thyroid cancer, a breast biopsy and a lung mass -- a history that one might expect would make her sympathetic to Coulter, counterbalancing her concern about large malpractice awards. Moreover, the juror said repeatedly that she thought she could be fair, saying at one point that she "could be fair unless I felt that the amount being requested was in my mind totally out of line with what the situation was but that would depend on what I heard." The juror made these statements in response to the court's extensive inquiries about whether she could be "fair in this case to everyone" and "fair in terms of the evidence." We see no basis for concluding that the court's action with respect to this juror evidenced bias in favor of appellees.*fn6
Several of Coulter's claims of partisan misconduct reflect an erroneous understanding of the law. For example, Coulter complains of Judge Combs Greene's having threatened to hold Coulter's counsel in contempt for having directly contacted defendants' experts to arrange deposition dates. Coulter's argument as to why this was improper is a citation to our case law recognizing that an adverse party may call another party's experts as witnesses. See Abbey v. Jackson, 483 A.2d 330, 333 (D.C. 1984). However, nothing in Abbey required the trial judge to condone the contact by Coulter's counsel with defendants' experts. And, contrary to Coulter's argument, this court's opinion in Nelson v. McCreary, 694 A.2d 897, 903-04 (D.C. 1997), in no way suggests that counsel's contact with the adverse party's testifying experts is permissible so long as no confidential or privileged information is disclosed. Judge Combs Greene's reaction was consistent with case law recognizing "the ethical issues raised by direct ex parte contact with an expert witness who will testify . . . for the opposing party on the central issue in the case." Chemical Bank v. Executive Mgmt. Co., 1995 Conn. Super. LEXIS 3429 (Conn. Super. Ct. Oct. 23, 1995); see also Campbell Indus. v. M/V Gemini, 619 F.2d 24, 27 (9th Cir. 1980) (holding that district court did not abuse its discretion in imposing sanctions following one party's contact with the other party's designated expert).*fn7
In another example of purported "partisan misconduct," Coulter asserts that Judge Combs Greene untruthfully told the jury that Coulter "consented to the presentation of Dr. Zuurbier's testimony out of turn." In fact, the judge told the jury that Coulter had "graciously allowed the Defendant to call this witness out of order" which was true in that -- although he initially objected -- Coulter's counsel made no further protest or response once the court described this accommodation as a matter of civility and asked counsel to explain why an accommodation was not appropriate. As to Coulter's suggestion that the judge's statement should be regarded as a partisan attempt "to avoid a ruling that Dr. Taylor waived the right to move for a directed verdict" by putting on a witness during plaintiff's case, the short answer is that a defendant does not "waive the right to move for a directed verdict at the close of the plaintiff's case merely by putting on evidence out of turn." O'Neil v. Bergan, 452 A.2d 337, 343 n.7 (D.C. 1982).*fn8
An error of law also underlies Coulter's assertion that Judge Combs Greene "erroneously ruled that Dr. Fullum was Ms. Coulter's witness and could, therefore, be lead [sic] by Fullum's own counsel." The court's ruling was correct. Under Super. Ct. Civ. R. 43 (b), when a party (here, Coulter) calls an adverse party as a witness, that witness (here, Dr. Fullum) "may be cross-examined by the adverse party"; and, as our case law recognizes, leading questions are "the principal tool and hallmark of cross-examination." United States v. Hsu, 439 A.2d 469, 472 (D.C. 1981) (citation and internal quotation marks omitted).
In summary, we reject Coulter's claims of "partisan misconduct," because we can say with assurance that, on the record before us, an objective observer would have no "difficulty understanding" that Judge Combs Greene's conduct of the trial "was not influenced" by bias. Gibson v. United States, 792 A.2d 1059, 1069 (D.C. 2002).
We turn next to a consideration of Coulter's challenges to a number of the court's pre-trial rulings.
A. Rulings Relating to Coulter's Allegations of Sexual Misconduct
After the filing of her initial complaint on January 23, 2004, Coulter filed her first amended complaint on February 5, 2004. The first amended complaint contains no allegations of sexual misconduct. During June 2004, defendants took Coulter's deposition, in which she testified that, during the course of her visits to Dr. Fullum, Dr. Fullum committed various acts of sexual misconduct against her. A flurry of motions followed. Dr. Fullum moved for a protective order that would preclude Coulter from publicizing her allegations of sexual misconduct. In October 2004, Coulter moved to amend her complaint to add allegations of sexual misconduct as a form of medical malpractice. Defendants filed motions in limine to preclude Coulter from presenting evidence of sexual misconduct during the trial. The trial court denied Coulter's motion to amend but granted defendants' motions. Coulter challenges these rulings.
This court reviews a trial court's decision to permit or deny an amendment of pleadings for abuse of discretion. Taylor v. District of Columbia Water & Sewer Auth., 957 A.2d 45, 51 n. 15 (D.C. 2008). We will uphold a refusal to allow an amendment if predicated on "valid grounds." Id. at 53 n.20 (citation and internal quotation marks omitted). Stated differently, absent an abuse of discretion, we will not disturb a trial court's grant or denial of leave to amend a complaint. See Eagle Wine & Liquor Co. v. Silverberg Elec. Co., 402 A.2d 31, 34 (D.C. 1979).
Judge Combs Greene denied Coulter's motion to amend in an order dated December 7, 2004, explaining that she was "persuaded by defendants' arguments" that to allow the "eleventh hour filing would result in great prejudice to [the] defendants." Coulter argues that this ruling amounted to an abuse of discretion since the court thereafter extended the discovery deadline (to afford the parties time to complete depositions of experts) and since, as events unfolded, trial did not begin until more than sixteen months later.
We have recognized that "[t]he lateness of a motion for leave to amend . . . may justify its denial if the moving party fails to state satisfactory reasons for the tardy filing and if the granting of the motion would require new or additional discovery." Pannell v. District of Columbia, 829 A.2d 474, 477 (D.C. 2003) (citation omitted); see also Eagle Wine, supra, 402 A.2d at 35 (noting that the "determination may rest on findings that the moving party has not put forth any satisfactory reason for the delay (e.g., new information which could not have been uncovered earlier) and that an 'unduly delayed' amendment would mean a large additional expenditure of effort and money by the opposing party in discovery on a new aspect of the case after substantial discovery already has taken place"). Here, the record shows that Coulter could have set forth her claim of sexual misconduct -- which allegedly occurred during the January to June 2003 period -- in either her initial or first amended complaint. Moreover, by the time Coulter sought to amend her complaint in October 2004, defendants had already deposed all but one of Coulter's witnesses. Although defendants learned of Coulter's sexual misconduct allegations during her June 2004 deposition, they argued that they would have prepared for and conducted her deposition and the expert depositions differently had they been apprised that Coulter intended to pursue these claims as a basis for a medical malpractice recovery.*fn9 As defendants explained to the trial court, to establish that Dr. Fullum committed medical malpractice by the alleged sexual misconduct, Coulter would have had to prove "that in the course of Dr. [Fullum's] . . . treatment of [her], a relationship similar to a psychologist-patient relationship developed between the two; that it was a breach of the applicable standard of care for Dr. [Fullum] to engage in sexual acts with [her] during the course of or attendant to that relationship; and that the breach of the standard of care by Dr. [Fullum] proximately caused [her] claimed injuries." McCracken v. Walls-Kaufman, 717 A.2d 346, 353 (D.C. 1998). These are matters that must be established through expert testimony, id., and that therefore, presumably, would have necessitated additional questioning of Coulter, the designation of additional defense experts (or an expansion of the scope of testimony by the experts that defendants had already designated), and a new round of depositions of those experts.*fn10 In addition, as Dr. Fullum argued to the trial court, trying Coulter's claims of sexual misconduct along with her claims of negligent diagnosis and treatment of her breast cancer may have impeded Dr. Fullum's ability to receive a fair trial on the latter claims. Taken together, these factors provided an ample reasonable basis for the court's denial of the motion to amend. While Judge Combs Greene did not explicitly refer to each of these factors, she stated, in denying the motion "[a]fter a review of the record and on consideration of the pleadings," that she had "considered the relevant factors," including the absence of any "reason why [Coulter] could not have included the amendment . . . in the original Complaint or in the First Amended Complaint" and the "element of prejudice."
Similar considerations of prejudice justify the court's granting of defendants' motion in limine to preclude evidence and argument regarding Coulter's allegations of sexual misconduct*fn11 -- evidence that was rendered irrelevant in light of the order denying the motion to amend. Coulter is correct that the court's ruling on the motion in limine did not "articulate the grounds and rationale upon which the ruling was based." But that was not required. See Ibn-Tamas v. United States, 407 A.2d 626, 636 n.17 (D.C. 1979) ("This is not to suggest that a trial court must articulate reasons, let alone correct reasons, for every evidentiary ruling. In most ...