Jacob v. Kippax
10 A.3d 1159
| Me. | 2011Background
- Nancy Jacob underwent tooth extraction and sought a partial denture; referral to Kippax followed with evaluation.
- Kippax examined Jacob, suspected infection, prescribed antibiotics, and later recommended a biopsy due to new symptoms and ‘pebbly’ gum texture.
- Jacob signed a consent form for the biopsy, but testified the risks listed did not apply to her procedure.
- Post-biopsy, Jacob experienced swelling, pain, numbness, and bruising; multiple doctors treated her; a neurologist suggested infraorbital nerve injury.
- A prelitigation screening panel found no deviation from standard of care or proximate causation; Jacob sued in Superior Court after panel result.
- A court excluded the Board of Dental Examiners disciplinary action and consent decree from Jacob’s case-in-chief, but allowed potential impeachment use should trial evidence warrant it.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of disciplinary action and consent decree | Disciplinary action impeaches credibility and shows habit or motive. | Excludable under Rule 403 for prejudice; not probative of this case's conduct. | No abuse of discretion; exclusion upheld. |
| Admission of habit evidence | Disciplinary history could show habit or routine practice affecting credibility. | Evidence supports routine practice under Rule 406; relevant to conduct. | Habit evidence properly admitted. |
| Mistrial motion based on panel references | Panel references and enlargement biased the jury against Jacob. | Arguments and enlargement limited and within permissible scope; not prejudicial. | No abuse of discretion; mistrial denied. |
| Jury instructions on screening panel and informed consent interpretation | Informed consent instruction misinterprets statute; panel instruction deviates from Irish I. | Instructions were proper and accurate; statute interpreted reasonably. | Instructions upheld; no reversible error. |
| denial of new trial | Errors warrant new trial given evidentiary and instructional issues. | No merit to asserted errors; trial conducted properly. | New trial motion denied; judgment affirmed. |
Key Cases Cited
- Reardon v. Larkin, 2010 ME 86 (Me. 2010) (standard of review for evidence viewed in jury verdicts)
- State v. Allen, 2006 ME 20 (Me. 2006) (abuse of discretion for evidentiary rulings; Rule 403)
- Todd v. Andalkar, 1997 ME 59 (Me. 1997) (burden of proof in evidentiary challenges)
- Irish I, 1997 ME 50 (Me. 1997) (panel decree admissibility and scope of instructions)
- Irish II, 2000 ME 2 (Me. 2000) (enlargement of panel findings permissible under certain conditions)
- Poblete, 2010 ME 37 (Me. 2010) (standard for reviewing denial of mistrial motions)
- Gierie v. Mercy Hosp., 2009 ME 45 (Me. 2009) (closing argument referencing panel findings within scope)
- Van Sickle, 434 A.2d 31 (Me. 1981) (admission of routine procedure testimony by officer)
- Uffelman, State v. Uffelman (Me. 1993) (informed consent interpretation considerations)