Green v. North Arundel Hospital Association, Inc.

I Finally, although am not able “to examine virtually the Kosmas, transcript entire of the trial” in as the author of the (316 opinion Court’s Kosmas did Md. at A.2d 1143) in concluding prejudice to Kosmas’s credibility occasioned a witness’s assertion that he overheard Kosmas refuse a police request to take a lie detector test was such that (See id.), no instruction I persuaded, could cure am beyond doubt, reasonable that the outcome of Carter’s trial was not evidence, dependent pertinent on the given inadmissible curative instructions.

Judges Wilner and Battaglia they authorize me to state that join with this Dissent. A.2d GREEN, Minor, al., A

Darwin et ASSOCIATION, INC., NORTH ARUNDEL HOSPITAL et al. 88, Sept. Term, No. 1999. Appeals Maryland.

Court

Nov. 2001. (Saul Associates, P.A., Suzanne Shapiro Kerpelman C. E. & brief), Baltimore, on petitioners. (Sharon

Larry Ceppos A. A. Marcial of Armstrong, Dono- hue, Chartered, Rockford), Ceppos Vaughan, & L. Gregory (E. Adkins, III, VanGeison Dale Lynne B. Malone of Anderson, LLP, Baltimore), King, Coe & Zeigler Luther (Richard McMillan, Jr., Cheryl A. Solomon of Crowell & LLP, DC, Moring, Washington, Karsten, Kurt D. Curtis H. Karsten, Booth of Cowdrey, Thompson & P.A. of Annapolis), brief, on for respondents. Sachs,

Stephen Fein, E. Delery, F. Laura Stuart R. Kevin Wilmer, Bailey, DC, Cutler Pickering, Washington, & brief of Center, Public Justice Maryland Adapt, Maryland Disability Center, Law MCIL Resources for Independent Living behalf of petitioners, amicus curiae. III,

George Tolley, Timonium, S. brief of Maryland Trial Lawyers Ass’n on petitioners, behalf of amicus curiae.

Argued BELL, C.J., ELDRIDGE, before RODOWSKY,* RAKER, WILNER, CATHELL and HARRELL, JJ.

WILNER, Judge.

Before us is a medical malpractice action that commenced in the Circuit Court for City Baltimore but was eventually tried in the Circuit Court for Anne Arundel County. Through his parents, the severely injured plaintiff, Green, Darwin sued respondents, North (NAHA) Arundel Hospital Association Fields, Drs. Richard T. Axelbaum, Stewart P. R. Hashad Mody. Because liability was in significant dispute and the injury allegedly resulting from the defendants’ conduct was severe, the court bifurcated the undoubtedly to avoid J., retired,

*Rodowsky, participated now hearing in the and conference of Court; this case while an active being member of this after recalled Constitution, pursuant IV, 3A, Article Section participated he also adoption the decision and opinion. of this defendants, on proceeded to and first potential prejudice liability. plaintiffs At conclusion of the case the issues of against the action NAHA liability, as to the court dismissed ground legally that there was insufficient Mody and on the Dar- part their that contributed to negligence evidence of on on liability, and at the end of entire injury, win’s case defendants, two a verdict favor the other jury returned damages thus Drs. Axelbaum. The issue of was Fields and to the jury. never submitted Appeals,

Plaintiff to which appealed Special the Court Arun- Court v. North judgments. affirmed the Circuit Green (1999). 730 A.2d We Hospital, Md.App. del (1) two issues: whether granted certiorari consider basic City Anne Coun- the Circuit Courts Baltimore and Arundel lay County, in Anne ty properly concluded that venue Arundel (2) Darwin, in precluding and whether trial erred who, in a injury, essentially as' of his was motionless a result state, either to communicate or to under- vegetative unable being from into courtroom proceeding, brought stand the than trial as period during of less an hour the two-week “to liability, jury to be exhibited demonstrate was current condition.” Convinced that there no error judgment Special either we affirm the of the Court of regard, Appeals.

BACKGROUND 12,1977 February Darwin on 20 at Green born and was time He medical hydrocephalus of trial. was born —a accumulation of in the condition which abnormal fluid pressure. Nine cerebral ventricles causes increased brain birth, placed a shunt was in the cerebral days after into parts ventricles of his brain to drain extra fluid other body thereby pressure. of his relieve the cranial old, year shunt was revised once Darwin was one when placed age second shunt was in his brain at four. Darwin had school, limited but capability intellectual was able attend classes, family special go take education vacations. 17, 1988, On morning August began Darwin headache, experience despite which his taking continued Tylenol. day, began Later that he to vomit and feel nauseous. symptoms day, His continued the following he seemed Concerned, drowsy. his took father Darwin the NAHA a.m., Fields, emergency room around 11:00 Dr. where him at Because physician duty, p.m. examined 1:00 Darwin headache, complaining was of a severe Dr. Fields ordered tests, emergency several an laboratory including CT scan. Axelbaum, NAHA, radiologist Dr. a at interpret- reviewed and Darwin’s CT scan. He presence ed noted the shunts in Darwin’s brain and a number of other abnormalities —a sub- hygroma cyst causing dural with a calcified some mass effect in the left hemisphere, large parietal porece- cerebral a phalic cyst, aqueductal Nevertheless, and stanosis. possible concluded, Fields, he and informed Dr. those conditions reflected “old” Dr. changes. Fields then consulted with Dr. Hashad Mody, neurologist, R. who advised that Darwin could be discharged once the headache was relieved. Around p.m., given 1:30 Darwin was a prescription painkiller, Vicodin. 2:45, By gone, 3:00, the pain just was after he was discharged. Darwin, releasing Prior to Fields spoke Dr. twice primary Lee, with the child’s care pediatrician, Dr. who indi- cated that he would see Darwin either that day later or the day for a follow-up. next The clinical impression noted on the hospital headache,” record was “vascular with an instruction for Darwin to see his care primary pediatrician.

Darwin but returned home complain continued head- aches. His him gave father another Vicodin tablet that eve- ning. morning, The next August per- Darwin’s headache sisted, and his took him to father Dr. Lee’s office in Anne Arundel County. that, Dr. Lee noted in addition to the headache, Darwin appeared drowsy staggering. and was Af- consulting ter with Darwin’s neurosurgeon, Dr. Lee arranged Darwin to visit immediately University of Maryland (UMH) Hospital City. located Baltimore Darwin and his father arrival, arrived at UMH late Upon afternoon. tapped Darwin’s shunt was CT scan per- another in- that Darwin had Doctors at concluded UMH formed. therefore, and, had probably pressure intracranial creased At surgical correction. malfunction, required which shunt neurosurgery service admitted to 11:00 Darwin was p.m., Progress The UMH overnight. remained of UMH where he next Darwin’s status that, p.m. day, at 12:30 Note revealed deteriorated,” to the intensive he was moved “acutely had arrest, him There, which left he suffered a cardiac care unit. remains, was, in an essen- He brain-damaged. severely state, anyone, with to communicate tially vegetative unable infant. level of one-month old and functions

DISCUSSION Venue 13, 1989, filed claim on October litigation began This Office Darwin the Health Claims Arbitration on behalf of NAHA, (HCAO).1 in claim were respondents Named as UMH, at Of Fields, providers 11 health care UMH. Dr. and did Fields resided and business NAHA and respondents, those County. respondents appar- The UMH in Anne only Arundel in The City. Baltimore or did business ently either resided care by medical injured negligent that he was plaintiff averred 19, room and on emergency in the NAHA on August the case patient UMH. While August 19-20 while HCAO, respon- the UMH settled with plaintiff before pending and, $1,489,000, joint tortfea- in for executed exchange dents arbitration, remaining then waived parties sor release. before HCAO. proceeding which terminated petitioner this in 1. HCAO and the The claimant before however, condition, he unfortunate action is Darwin. Because his any directly to claims or assertions. All of has unable make been physical at the regarding and medical status claims and assertions his litigation were all of actions taken in this times and various relevant attorneys. parents his We on behalf either his made or done his referring specifically to him other- when but shall use Darwin’s name acting "plaintiff” to to Darwin or those wise the term refer use behalf. Plaintiff commenced the action now before us filing suit in the Circuit City against Court Baltimore NAHA and Dr. Anne Fields—the two County Arundel defendants. Those defendants dismiss the for want of moved to action proper Code, 6-201(a) § Maryland venue. the Courts Judicial Article, that, §§ Proceedings provides subject to 6-202 6- 203, “a civil brought county action shall be in a where the resides, business, defendant on a regular employed, carries 6-201(b) habitually engages vocation.” Section adds that, “if there is more than one defendant there is no single defendants, venue to all applicable (a), under subsection all may county sued which one of them could be sued, or in county where the of action cause arose.” 6-202(8) Section that a provides tort action based on negli- gence may be brought where the cause of action arose. It was not disputed single that there was a applicable venue to both defendants, in Arundel County, Anne and that the alternatives 6-201(b) § stated in were therefore inapplicable. Plaintiff asserted, however, 6-202(8) § venue under could lie where the that, cause of action arose and contended under applicable law, case the cause of action arose in Baltimore City. 6-202(8) §

The court concluded that was inapplicable and that, 6-201(b), under § the clear mandate of venue lay only in Anne Therefore, March, 1992, Arundel County. it trans- ferred the case to the Circuit Court for Anne Arundel County, which, in July, a firm set trial date of June 1994. On May 1994—two weeks the scheduled trial date and before 26 months the case was plaintiff moved after transferred —the to stay trial ground on the that he wanted add two additional Mody defendants —Drs. and Axelbaum. The trial date was postponed plaintiff and filed a claim new with HCAO against doctors, the two who had in rendered service connec- tion plaintiffs with initial visit to NAHA. After arbitration was waived, HCAO transferred the case to Circuit the Court for Anne Arundel County. court,

Rather than proceeding in apace that where the scheduled trial had postponed been to allow the addition of the all four doctors, against a new action the filed plaintiff

two Mody ground that Dr. City, in on Baltimore defendants NAHA and against The claims asserted city. in the practiced in Anne Arundel pending to those Dr. were Fields identical in a motion plaintiff filed County. Contemporaneously, against the case County court to transfer Arundel Anne Dr. City. to NAHA and Dr. Baltimore NAHA and Fields action and also City the Baltimore moved to dismiss Fields City Baltimore fees. The attorneys’ and sought sanctions The Anne imposed sanctions. court the motion granted to transfer. motion County plaintiffs court denied Arundel case two after the years than August, in 1996—more Finally, formally Drs. added plaintiff be tried —the was scheduled The County case. the Anne Arundel Mody Axelbaum to ended all four defendants and against trial case proceeded favor. in their judgments ap venue on improper his claim pursued Plaintiff that Circuit Special Appeals held peal. The Court proceeding, first erred City, in the for Baltimore Court 6-202(8) The intermedi inapplicable.2 § was concluding hold, however, error went on ate appellate harmless, essentially because was that determination and, for that City arise in Baltimore action not cause of did that an The court reason, lay venue there. determined no oc injury arises where the negligence action based first plaintiff, presented the evidence examining curs. Upon in Anne to Darwin first occurred injury that the concluded County. Arundel Special Appeals’ deter- the Court applauds plaintiff

The 6-202(8) Circuit Court applies § mination that county authority plaintiff where the cause allowing to sue in 2. noted, 6-202(8). 6-201(b) provided §§ As arose is in both of action 6-201(b) § to the situation authority is limited contained defendants, single applicable all which no venue which there is other 6-202(8) § authority provided by is limited the case here. The venue to negligence. provides It an additional based on to tort actions 6-201(b) § is avail- irrespective of venue under whether Swanson, (1988). 548 A.2d 837 314 Md. able. See Wilde

607 City otherwise, in concluding argues Baltimore erred but he appellate that was wrong intermediate in then in finding that the action arose Arundel He County. Anne that, complains finding first as the Circuit made no on Court (which, that of course was in unnecessary issue for it to do 6-202(8) light ruling inapplicable), § of its that the deter- mination Special imper- Court of constitutes Appeals appellate missible fact-finding. disagrees He also with that finding Although on the merits. acknowledging that a cause of action for medical malpractice arises when the first plaintiff experiences any from the injury allegedly negligent acts of a defendant, he no injury maintains that such occurred until he suffered cardiac in City-that arrest Baltimore the defen- dants were never accused causing the headaches or drowsi- ness Special that Court of regarded as Appeals requisite injury.

In 107, 121, v. Armstrong, Owens-Illinois 326 Md. 47, (1992), 604 54 A.2d we with the holding concurred Special Court of in Appeals that a case cause of action negligence arises when facts exist support each element the action. The of a elements cause of action for negligence (1) are a legally cognizable duty on part of the defendant (2) owing plaintiff, a breach of that duty by the (3) defendant, injury actual loss suffered the plaintiff, (4) such or loss from injury resulted the defendant’s breach duty. Dermer, 344, v. Brown 357 Md. 744 A.2d (2000); Inc., Valentine Target, v. On 353 Md. 727 A.2d (1999). Owens-Illinois, As we noted in a negligence action, the duty, breach, elements of and causation tend naturally precede injury, the element of which “would seemingly be the last element to into come existence.” Ow ens-Illinois, supra, atMd. 604 A.2d at 54. Accord when, ingly, sense, in determining in a time a cause of action arises, negligence the focus is often when last That, turn, element injury depends occurs. of how we “injury.” define subject on a number of occasions have on that opined

We McGowan, 294 Md. Oxtoby variety contexts. (1982), issue was whether where the A.2d 860 action for had a cause of injury,” thus suffered “medical of the Health to the effective date prior malpractice, medical Act, the view of the Wisconsin adopted we Arbitration Claims of at in terms “the to be looked “injury” needed and thus way damage” of hurt or in the recipient effect on included, effect to, “any damaging hurtful extended 94, at 447 A.2d 866 one.” Id. at any may be suffered which Trustees Policemen’s v. Board from McManus (quoting of of (1909)).3 806, 133, We Fund, 119 807 138 Wis. N.W. Pension Special of Court two decisions approval also cited 325, Md.App. 48 428 A.2d 80 Blanchfield, v. Dennis Appeals, 292 grounds, Md. (1981), on other part in and modified aff'd (1982), Hopkins Hospital v. 319, and Johns 438 1330 A.2d denied, (1981), 549, 429 cert. Md.App. A.2d 538 Lehninger, 48 (1981), injury that a proposition for the medical Md. 717 290 Act, Arbitration occurs, of the Health Claims for purposes has not to the resulting damage patient all of the though “even 294 Oxtoby, Act’s date.” to the effective prior suffered been v. 97, Fitzgerald, at Hill 304 447 A.2d 868. See also Md. at (1985) in 689, 696, 27, (confirming that view 501 A.2d 30 Md. surgery complete Oxtoby, plaintiff in 1974 for underwent 3. In prospect ovarian cancer. to a over the hysterectomy, due concern ovary and surgeon allegedly did remove all of an The defendant 1977, and, tube, diagnosed with April, in fallopian 1980, cancer, which, surgeon proved against to be Suit fatal. in Act, required Malpractice which The Health Claims was filed 1980. non-binding prior to arbitration malpractice all claims be submitted to 1976, court, 1, applied July to all any took effect to action occurring question presented to us injuries that date. The after medical 1, July Oxtoby injury prior a medical was whether Ms. suffered subject procedural requirements was not and therefore ovary alleged established to remove the entire failure Act—whether surgery complete injury the time or not until she medical unnecessary actually We that was the cancer. concluded contracted issue, as was evidence in the record that to resolve that there 1977, was, fact, cancer, prior diagnosed contracted though not until 1, July 1976. response questions from the certified United States District Court).

Most instructive with respect particular issue before (1990). us Speed, is Jones Md. 577 A.2d The Jones, doctor, plaintiff, Speed, consulted the defendant for the in July, complaining first time of severe headaches and expressing a concern over possible abnormality. intracranial doctor dismissed concern and omitted a CT ordering diagnostic scan other the brain. The test headaches continued. Ms. Jones under re- Speed’s remained care and turned further visits on semi-annual basis until September, 1985. Although through- the headaches persisted time, out that Speed diagnostic never ordered test plaintiff’s brain. In February, following a nocturnal seizure, tumor, a CT scan revealed a brain which was success- claim, fully removed. continuing Jones filed a based on the 1986. negligence, July, response, Speed asserted Code, § of in repose Maryland statute codified 5-109 of the Article, Courts Judicial Proceedings requires which a malpractice medical action to filed within five years be after the time “the injury committed.” complaint contained 17 counts. The first count assert- negligence respect ed with first July, the visit in 1978. The remaining 16 incorporated allegations counts the of first the separate count but asserted negligence respect with of each ensuing visits, through the 1985. We agreed Speed that all claims based on his order appropriate failure to diagnostic on tests and failure detect the tumor more five than years prior filing complaint of the were That barred. necessarily conclusion premise rested on the pain the disability that Ms. Jones continued to from suffer Speed’s to correctly diagnose failure problem the constituted an injury which, when joined with his negligence, gave the a further, of however, cause action. We concluded claims based on Speed’s negligence at the later visits occur- ring within of of years filing complaint five were not barred and could proceed, although suggested we be they judicata res count, single in order to avoid

joined in a problems. claim-splitting injury in question of recently

We most considered Edmonds, (1997), which, 208, Rivera v. A.2d 1194 347 Md. Jones, repose of the statute of application like involved failure-to-diagnose Biopsy situation. § 5-109 to provision of July, in were plaintiffs physician taken specimens failed who pathologists, the defendant allegedly misread in microscopic evident slides. invasive carcinoma diagnose Au- until complaints Ms. Edmonds remained free medical In May, gallbladder when her was removed. gust, buttock, in which the of severe her complained pain she root irrita- witness was due to nerve plaintiffs expert opined tumor. In spread malignant from the cervical arising tion area, October, 1989, right pelvic a mass was discovered her November, fully diagnosed having as differenti- she was filed cancer. died 1990. Suit was squamous ated She 5-109, § 1993, and was met with the defense under April, which, the trial court held was bar to summary judgment, on occurred from hinged injury The issue when the action. misdiagnosis. Court of issue, quoted we view the examining that Appeals that Special as a result of a ‘injury’ negli-

“The could suffer an patient (1) pain he or she gent misdiagnosis, experiences when (2) the disease advances injury; other manifestation an misdiagno- point where it was at the time beyond (a) effectively it no point longer can sis and to where (b) treated, completely it treated as well or as cannot be (c) misdiagnosis, have time could been detrimental effects expense would entail or side treatment treatment com- likely have occurred had would (3) time; the patient at the earlier dies.” menced Id. 215, at 699 A.2d 1198. a Stage had at least

The record indicated that Ms. Edmonds cervix—when the I cancer—a tumor confined cervical in there was a misdiagnosis July, Although occurred 1983.

(JH 10-15% of lymph cancer, chance in I Stage node involvement any the extent of invasion not be could measured. The five- year July, cure in cancer, rate 1983 for an invasive with proper treatment, was 75-85%. By the time the was actually cancer diagnosed however, in had progressed IV, to a Stage for which the cure rate O. Although defendants, seeking to establish that the plaintiff had cause action immediately, in any delay asserted that diagnose failure (and certainly cancer a protracted delay) injury, constitutes view with which we said that “[ojrdinarily we would have no disagreement,” we noted that there was evidence that particular cancer that should have been in July, detected could remain for long dormant as five years. Because the case was on judgment, resolved summary we concluded that the plaintiff inference, and, was entitled to that favorable absence of evidence of pain other manifestation of injury, that there was the prospect injury reasonable did not occur July, until 1988. We thus affirmed the determina- tion of Special the Court of Appeals summary judgment was inappropriate. background,

With this may we quickly dispose plain (1) tiffs complaints that the Special Court of Appeals engaged in impermissible (2) appellate fact-finding, and erred substan tively determining that Darwin injury suffered Anne Arundel County. The two really coalesce, issues and we need go no farther than the plaintiffs own admissions. He states his brief:

“After being released from at 3:05 p.m. August [NAHA] 18, 1988 Darwin complain continued to of headache and that evening gave his father him another prescribed Viacodin as by Dr. Fields---- The morning, next August Darwin still complained of a headache and his took parents him to his pediatrician, Dr. Lee.... Dr. Lee noted that headache, Darwin had a drowsiness now stagger- and was ing, and he immediately arranged parents Darwin’s take him University of Maryland Hospital.” by the evidence. fully supported

That admission that, after averred interrogatories, to answers after- to UMH next reporting before leaving NAHA and noon, “neurological deterioration” suffered continued Darwin Athough the ever-increasing pressure. intracranial from the aside, that, as it the fact is to brush now plaintiff seeks County Anne Arundel of the alleged negligence result malfunction shunt and diagnose in to failing defendants facility capable dealing to a immediately sent have Darwin to from head- continued suffer Darwin problem, with That con- aches, drowsiness, neurological deterioration. and it is the kind (Oxtoby); effect” damaging a “hurtful or stitutes constituting injury; in an Jones recognized of harm we manifestation or other scope “pain falls within clearly Darwin, his Clearly, through Rivera. injury” of an under August NAHA defendants could have sued the parents, 1988. reached the Appeals Court of Special

It is that the evident own evi- appellant’s “because conclusion only possible—that form injury in the experienced Darwin showed that dence first in suffering Anne pain and ‘neurological deterioration’ county.” in arose County, the cause action Arundel at Hospital, supra, Md.App. v. North Arundel Green County, in Anne Arundel lay 232. thus Venue A.2d Court Baltimore error committed Circuit no was transferring the case. City

Appearance at Trial limine. NAHA trial, filed motions in Just before both sides trial. Plaintiff from the presence moved Darwin’s to exclude (1) con- any argument to exclude evidence filed motion (2) UMH, any with cerning plaintiffs settlement any provider care argument that UMH or health evidence or in the care rendered negligent was other than defendants exclude, supported to which was Darwin. NAHA’s motion defendants, on the assertion that was based other communicate, state, vegetative Darwin unable way presenta- any unable assist participate tion of his unable even would understand what court, that, transpiring being in the absence of able to perform function, presence such be overwhelm- would ingly prejudicial, that he required continuing nursing care and extensive equipment, medical and that the equipment would generate noise and distract jury. Although the acknowledging presence that Darwin’s be relevant the might to issue of damages, presence NAHA asserted that his was irrelevant to the liability. issue of plaintiff opposed The the motion and denied in allegations the the motion. motion

Although response the and the to seemed assume plaintiff the presence throughout desired Darwin’s the trial, motion, hearing the on the plaintiff the indicated that “he is not to going be for sitting here entire time trial.” It is not clear from the transcript how hearing long the plaintiff to in wished have Darwin court. Counsel noted that Darwin required his airway hours, to be every suctioned two but that it was not a noisy process and that Darwin would have a professional health care with him in the courtroom. Although brief, appellate his the plaintiff now asserts that counsel “only sought his presence the courtroom for a period hour, of time less than an on trial,” and, one day of the for purposes of this appeal, we shall assume that was the such a limitation is not at all clear from the record.4 assertion, making 4. In plaintiff pp. cites to 105-06 the record extract, part transcript which is hearing motion in Although limine. counsel did state to the court that Darwin "is not going sitting trial,” to be here the time entire for nowhere did he presence indicate that Darwin’s to be limited to than less an hour made, day. tell, on one The assertion now so far as we can finds no support Although disparity the record. signifi- this has no ultimate cance, presents it posture a somewhat different of the case to us than may If, presented have been colloquy court. suggests, trial as the the intent have longer was to Darwin in the courtroom than two hours, may the court well disruptive have been concerned about suctioning effect of his air jerking tube —the noise and the movement If, told, that the court observed on the video. as we are now the intent hour, was to brought day have him in on one for less an than implication stronger presence is even simply that his would be as an exhibit, Constitutional, implement not to statutory, his or common law present. to be now, below, that its motion was maintains urged NAHA might appearance fact that Darwin’s not on the simply based that, his rather but because upsetting jury, communicate, participate, condition, unable to Darwin was counsel, transpiring, what would be comprehend or even assist have result, could that, the courtroom presence his against prejudice jury meaning no other than the court response, asked defendants. Darwin, his observe “day-in-the-life” video watch to do. proceeded the court capabilities, and his which condition motionless, said, video, virtually shows Darwin the court during and some movement eye blinking except for some point, feeding At tube. suctioning changing noted, legs lifts Darwin’s movement that jerking there watching After and about the bed. his arms above extends transcripts and deposition reviewing relevant video records, as a fact that Darwin did the court found medical any counsel or to communicate in fashion with ability have the his nurses, would not be able aid parents or that he his “any input.” or of in the case offer sort attorneys prosecuting Darwin would not understand further that court found It that Darwin of the trial. concluded comprehend any part no that “there can be the state” and vegetable was “reduced to the of Defen- prejudice short purpose presenting [him] dants’ case.” arbitrarily that it could not recognized court

Although the of during trial because the to be deny party present the had the bur- and that defendants party’s appearance Darwin, it concluded establishing excluding of basis den that, liability phase in the had met and that the burden been trial, presence would from Darwin’s prejudice of For that could be offered.” “any instructions beyond extend reasons, acquiescence the motion. With the granted those motion to defendants, granted plaintiffs with UMH but regarding the settlement exclude evidence argument evidence and preclude the motion to denied providers. other health care of UMH or negligence part appeal, plaintiff complains this that the exclusion (1) from the trial violated rights Darwin under the Ameri- (42 (1994 Act §§ cans With Disabilities U.S.C. 12101-12213 & (2) Supp.1999)), process to due of law under Federal and State Constitutions. He avers a trial court “does have unbridled discretion exclude a from the court- and, room, therefore, the trial its court abused discretion under the circumstances this case.” Americans With Act Disabilities (ADA) The Americans With Disabilities broadly prohib- Act its discrimination against disabled persons employment, public entities, programs by services and public offered public by accommodations services enti- operated private ties. are ADA, We concerned here with II of Title dealing public with services offered public entities. 42 U.S.C. (1994 §§ 12131-12165 Supp.1999). & Section 12132 states that, subject to the provisions of subchapter, no qualified with disability individual may, by disability, reason be from excluded in or participation denied benefits of the services, programs, or public activities of entity, or be subjected to discrimination such entity. 12131(1)(B)

Section “public defines entity” including agency or other instrumentality of a State local govern- ment, clearly which would date, include a State court. To ADA compliance issues with respect courts have been principally context requiring that courts make rea- sonable accommodations physical their facilities or services to assure that those facilities are to persons accessible Elder, disabilities. Layton (8th See 143 F.3d 472-73 Cir.1998); Jefferson, 525, Matthews v. 29 F.Supp.2d 534 (W.D.Ark.1998); Galloway v. Superior Court the District of of Columbia, 816 F.Supp. (D.D.C.1993); 18-19 People Caldwell, (Crim.Ct. 159 Misc.2d 603 N.Y.S.2d 715-16 1993) Whether the exclusion of a person disabled from a civil trial, by not of reason physical some barrier but in order to disruption avoid or prejudice, would constitute violation of the ADA is yet unclear. No deciding case that issue has

616 amici, and, like the of or by any parties cited to us been we unable to find one. have been Special Appeals, Court of issue, in case to resolve that necessary It this is not the ADA however, for, if we to conclude that even were broader, than presence of does more absolute provides Constitutions, rever or or Federal common law the State remedy not be a a new trial would judgment sal of the reme rights, 12133 limits violation. Section statutory dies, person alleging discrimina procedures available to in 29 §of those set forth U.S.C. tion in violation to 794a, § Rehabilitation and part which is of Vocational (1994 Act, §§ 701-796Z U.S.C. Other Rehabilitation Services 794a, turn, with two different Section deals Supp.1999). & complaints filed un disability kinds of discrimination —those employment, and respect § to Federal der 29 U.S.C. 791with § discrimination regarding those filed under U.S.C. receiving financial assistance. Section 794a programs Federal State complaints not to cover discrimination appear does or services that do receive government programs or local financial assistance. Federal this or has, course, no even showing

There been § § 794 applicable that either 791 or attempted showing, an may conceivably applicable § 794 be To extent that here. State courts receive some Federal on the basis our remedies, assistance, that the provides financial that section Rights in title of the Civil procedures, rights set forth VI (42 any seq.) § 2000d et are available Act of U.S.C. by recipient act or failure to act person aggrieved any authorizes each Federal assistance. 2000d-l Federal Section adopt financial assistance agency empowered extend 2000d, § provisions speci- to effectuate regulations may agency requirement compliance fies that assistance, or by termination refusal continue effected no authorized law. There is by any other means law, to the best our provision in either Federal State authorizing the has been cited to knowledge none us— —and judgment reversal of a in a civil or the of a new awarding case remedy. trial as a noted,

As ADA public subject entities are under § if they 12132 even do receive Federal financial assis- violations, tance. The remedies for by not otherwise covered 794a, § regulations adopted are set forth in U.S. (2001). of Department §§ Justice. C.F.R. 35.101-35.190 responsible That is department receiving complaints arising discrimination from programs dealing with the admin- justice, istration of including § the courts. Id. A 35.190. person who believes that he or she has been subjected to discrimination the basis of a disability may file a Justice, with complaint Department investigates which the complaint attempts informally. resolve Id. §§ resolution, 35.170-35.172. If unable effect a Depart- fact, ment issues findings of which following complainant may private a file lawsuit or Department may seek §§ voluntary compliance. Id. occurs, 35.172-35.173. If neither matter sent Attorney U.S. General “with a recommendation for appropriate § action.” Id. 35.174. regulations stated,

Nowhere these is there or even that, suggested, complaint where the concerns the exclusion of a person disabled by judicial from the ruling, courtroom judgment reversal of the entered in the case is permissible remedy. The thrust of entire the administrative remedial sections is forcing public entities to make reasonable accom modations their facilities or in programs their preclude wrongful of persons exclusion disability with and are injunctive or forward-looking in nature. The remedies avail lawsuit, able in private subject to Eleventh Amendment considerations,5 may be broader and include compensatory 5. Since Supreme the decision of the Court in Board Trustees v. Garrett, 356, 370-72, 955, 966-68, 531 U.S. 121 S.Ct. 148 L.Ed.2d (2001) 882-84 (holding attempted abrogation by Congress invalid the respect States’ Eleventh Amendment to actions for ADA), damages question under Title I of the a serious has been raised of damages may against whether an action for lie a State under Title II of Colorado, Thompson the ADA. See F.3d against public attorney’s fees and an award of

damages they include no would but there is indication entity, because private in favor judgment aside a setting from the courtroom. excluded person wrongfully was disabled remedy of a becomes Indeed, the such inappropriateness of that a violation the when one considers unmistakably clear does not from a courtroom wrongful on exclusion ADA based in as a the party status person’s on excluded depend from case; is excluded a public who a member of pending disability has the same of courtroom because public his/her by reason of party ADA as a excluded complaint under not within inappropriate, it would be disability. Surely, in judgments entered to vacate contemplation Congress, of a mem- disabled in the courthouse because proceeding cases entering from or excluded public wrongfully was ber of in particular in or courtrooms. courthouse remaining reasons, of Darwin or not the exclusion these whether For ADA, judgments of the of the reversal constituted violation remedy. or available acceptable is not an Law Right and Common Constitutional we have throughout country, In concert with courts right has a litigation to civil party clear that made the trial case. participate present his/her cases, not, previous specifically in our Although we have right clear that the right, of that it is the source identified emanates, least, Maryland, law of from at from the common of the Fourteenth Amendment process clause the due of that Constitution, Maryland equivalent from the U.S. Rights, and from clause, 24 of Declaration Article also Rights. We have made 19 of the Declaration Article nation, right clear, other as have most courts which civil are circumstances not absolute —that there (10th Cir.2001) Depart U.S.App. and Jones LEXIS 21625 *36-37 Servs., F.Supp.2d Welfare, Bureau Blindness and Visual ment (E.D.Pa.2001) 490, 494, (holding 14549 at *10 2001 U.S. Dist. LEXIS Amendment attempted abrogation of Eleventh invalid ADA). respect to actions under Title II may and, case proceed without the attendance of a party indeed, with the excluded. We have had the occa- sion, however, to consider whether permissible exclusion is under the circumstances now before us. Sabo, (1956), Gorman v. Md. A.2d 475 against Gorman,

nuisance action filed Mr. and Mrs. Mrs. Gorman attended the trial on morning of the first day but not thereafter. She asked that the case be continued because illness, of her alleged a matter that dispute. some continuance, denied the and that was one of the issues presented appeal. error, no Finding we said:

“It brief, is not claimed in the nor was it at the argument, that the appellants were hurt in fact by the failure of the court to allow a continuance of the case. It is not even claimed that Mrs. Gorman had planned take the stand that she would have been a helpful persuasive witness. It is not said that she would testify any as to fact that was out brought either on or direct cross examination of witness. claimed, No actual prejudice was much less shown. The right party a to a cause present to be throughout the of trial is not an absolute right in a civil case and in the court, discretion with regard due to the circum- of stances prejudice, as to may case be tried or finished when a party, including a defendant, is absent.” 167, 122 added). Id. at A.2d at 481 (emphasis See also Casson Horton, (1961). 226 Md. A.2d made, The point same was although context, in a different in Stores, Watson, Safeway Inc. v. 317 Md. 562 A.2d 1242 (1989), an injured action an employee judicial for review of an ruling unfavorable by the Worker’s Compensation Commis- sion. corporate The employer, Safeway, was entitled Ma- 2-513(a) ryland Rule to designate a representative to remain in the courtroom and be sequestration, free from though even that representative may be a witness. The rule was intended put to a corporate party in essentially position same as a natural person in regard. that Safeway, a self-insurer for worker’s compensation purposes, designated representa- as its adjust to company by Safeway a retained employee

tive an claims, actually on the who had worked worker’s compensation a The trial who would be witness. question likely claim a designated proper was not person court declared that prior him from the courtroom and excluded representative the trial testifying. appeal The issue whether that ruling. in so held prejudicial error We committed corporate the rule broad gave party there was error —that representative its and that its determi- designating latitude judicial subject prejudice, nation was not discretion. As repre- of the effectively designated the exclusion equated we said, in party, exclusion of a we sentative regard: to presume prejudice it is appropriate

‘We conclude that or its party, representative, from the exclusion of a wrongful attorneys judges under- Experienced from trial. trial corporate ‘humanizing’ defendant importance stand Moreover, entitled jury present in a trial. is to be purposes have a view of for proceedings firsthand evaluating constantly prospects exigencies or changing settlement, in tactical for and to decisions participate trial. made, in the of a quickly, must be sometimes course of the Finally, attorney Safeway was deprived case. principal investigator presence at his side mounting up consider these facts Whether we necessary proof Safeway, simply consider prejudice by is determining presumption prejudice them in this the result the same. appropriate proof presumption, overcome the claimant has not the result must be a new trial.” 184, 562 1245. Id. ah A.2d at from cases is there is

What emanates these absolute, that the is not and that right presence, right of a constitutes determination of whether exclusion actual, prejudice, presumed either to warrant sufficient extent, It is depends, trial to some on the circumstances. new Stores, sum that, Safeway in we did not reverse significant instead, examined, but marily simply because exclusion why the exclusion was prejudicial. designated represen- tative was to comprehend proceedings only able and not assist help strategic counsel but make or tactical decisions regarding the case. This of analysis, kind which also was Gorman, evident in is consistent with the majority view country, including around the decisions on to directly point matter now before us. Bober, (1964)

Dickson v. 269 Minn. 130 N.W.2d 526 arose from a collision motorcycle, by between a driven plaintiff, and an young plaintiff severely automobile. The injured and was by characterized the court as “one unable to himself, express or sustain helpless entirely dependent on others, wholly to comprehend unable trial proceedings.” here, Id. at 529. As is the case the action was on brought his behalf his by parents, counsel, he was represented by he was trial, excluded from the jury returned a defendant’s ver- dict, and he complained appeal on that he was denied his Constitutional right present. to be Responding to the plain- tiffs citation of purporting cases person hold has an trial, absolute Constitutional right during be his Supreme Minnesota Court declared: “None is authority for the proposition that the in a plaintiff personal injury action who can neither contribute evidence question of fault nor comprehend proceedings entitled as a matter of constitutional present court when the liability litigated issue is though fully even adequately represented by counsel.” Id. at 530.

The court went on to note that plaintiffs rights were protected by general guardian, his brought who the action for him, It attorney. concluded that “the determina- tion of whether a unable reason of injuries contribute to or understand the trial proceedings should be nevertheless, permitted, to attend the trial must rest sound discretion of the trial court.” Id.

Similar conclusions Arizona, have been reached Califor- nia, Connecticut, Indiana, York, Dakota, New North Oregon,

Tennessee, of the First and Appeals and the Courts U.S. Arizona, Etc., v. Court Morley Superior Circuits. Sixth of (1981), the the court sustained 131 Ariz. P.2d who, of the a as a result severely injured plaintiff, of exclusion a for him accident, required tracheostomy in a was coma Fol- tube inserted in his stomach. feeding to breathe and Dickson, plaintiff the court concluded that lowing supra, “[a] right have no to at least with counsel will unable communicate liability during from the courtroom the by denied exclusion trial.” 1334. It noted further: Id. at phase condition, “If, allegedly plaintiffs physical addition the defendant, is so that the trial pitiable caused the mere plaintiffs presence prejudice would determines liability plaintiff during then failure to exclude the jury, right jury an unbiased deny would the defendant’s phase bias is totally when the source of the irrelevant liability issue.”

Id. Labs., A Div. 766 F.2d of A.H.P.C.,

In Helminski Ayerst (6th Cir.1985), was a nurse who was surgical substance, exposed to a manufactured the defen routinely dant, surgical was and that was used anesthetics preg during early stage harmful to fetuses potentially while nancy. exposed product Ms. Helminski was result, and, autistic as a her child was born pregnant allegedly trained. speak He not and was not toilet and retarded. could here, and, on the child’s behalf The Helminskis sued the child was excluded from trial was bifurcated and liability portion.

Analyzing party’s presence process under the due right (this case), Fifth being clause of the Amendment a Federal litigant’s right court held that a civil presence involving It types absolute. considered three cases—those healthy person, involving those the exclusion presumably injuries, in which the party physical due those or aid comprehend proceedings excluded unable to usually although As to rule is group, counsel. the first present person through articulated as a to be either counsel, representation by the court made clear that counsel justify arbitrary litigant does not exclusion of a “who personally wishes to be the courtroom.” Id. at 214. present Essentially the same Anewwas taken Avith respect group Relying County second of cases. Carlisle Nassau, (1978), 114 64 A.D.2d 408 N.Y.S.2d Purvis v. Co., (Fla. Inter-County Telephone Telegraph & 203 So.2d 508 denied, (Fla.1968), cert. App.1967), So.2d and Florida Lines, Jones, (Fla.1952), Greyhound Inc. v. So.2d Helminski court that “a plaintiffs physical held condition alone does not warrant his exclusion from the courtroom during any Id. at portion proceedings.” 215. group, exemplified by

The third Dickson and Morley, the court persuasive, found Avithinsome limits. The court first set that, general rule consistent Avith process, plaintiff due “a comprehend who can the proceedings may and aid counsel be excluded from any portion proceedings absent dis- waiver,” ruptive knoAving behavior or a voluntary and that includes plaintiff “solely Avith a ... physical abnormality abnormality even when the is allegedly due to the defendant’s Avrongfulconduct.” Turning Id. 217. then to the issue of prejudice, the court observed that benchmark “[t]he of our judiciary rests on the ability provide the courts to all parties trial,” Avitha fair and that the court safeguard must jury’s ability to decide the case based on presented the evidence rather than on emotional factors.” Id. In that regard, that, court noted although sight the mere of a severely injured plaintiff may jury evoke sympathy, “juror sympathy alone is for, insufficient to juror establish prejudice” generally, jury Avillfollow the court’s instructions and decide the solely case added, on the facts. It however: hand, “On the other may there be occasions when the mere presence of a party jury would render the unable to arrive at an judgment concerning liability. unbiased Should such a presence case arise and the would not aid the fair justice, administration of the trial court can exclude the plaintiff or limit A presence. party’s his involuntary exclu- a denial not constitute would these circumstances sion under process.” of due

Id. case, excluded judge the trial particular condition, without ever of his described on the basis

solely would presence whether the child to determine observing that acknowledged defense counsel Even prejudice. result Exclusion under was normal. appearance the child’s It held, was circumstance, wrong. court was appellate however, explained: not, reversible error. could plaintiffs presence that the indication “If there we believe of his presentation in the have assisted the facts reversal. Under require would his exclusion Hugh’s acted as case, however, the Helminskis where this all parties where' representatives, legal friends and next comprehend unable to completely Hugh agree low extremely of his Hugh because and where proceedings, we meaningful way, in attorney not aid his IQ could revers- does not constitute Hugh’s exclusion conclude error.” ible . Richardson-Merrell, Inc., 624 Re See also In

Id. at 218 1985) (S.D.Ohio explained, the court which 1212 F.Supp. from injured plaintiff-children excluding severely for the basis case, children that the liability a product liability phase consult with counsel meaningfully nor testify could neither that: In accor- to both sides. fairness contemplates

“A fair trial judge a trial 403 Evidence] Rule of with [Federal dance against prejudicial value probative balance always must misleading jury. effect, of the issue or confusion or children child value of deformed probative nonexistent. The liability alone is on an issue of courtroom of that child is of the presence effect prejudicial unfair calculation.” beyond

Id. at 1224. from quotations with like opinion this prolong need not

We Bozarth, (Ind.App. 64 v. 505 N.E.2d Gage cases. See other

625 (1991); Charles, 274, 1987); 312 Or. 821 P.2d 1080 Bremner v. Harris, 322375, Tenn.App. 1992 1992 LEXIS 913 Burks v. WL Province v. Center Women’s Health (Tenn.Ct.App.1992); Birth, Cal.Rptr.2d 20 25 667 Family Cal.App.4th & Co., (1993); Trucking v. Sarcona 204 A.D.2d Caputo Joseph J. (1994); Joseph’s Hosp., 611 N.Y.S.2d 655 Reems v. St. (N.D.1995); New Britain v. General N.W.2d Wozniak LEXIS 1547 Hospital, Conn.Super. WL (2001); v. Assur. Equitable Gonzalez-Marin cf. Life (1st Cir.1988). Soc., 845 F.2d are, indeed, of a holding There decisions the exclusion error, from a civil trial was but none of them involved (1) of a party wholly the situation who was unable to communi- (2) cate or assist in the presentation incapable (3) from comprehending proceeding, only excluded trial, of a liability phase presence bifurcated where his/her likely prejudicial would be both to the defendant irrele- vant, sense, evidentiary an to any issue then before the jury. typical cited, Oneok,

A in this regard, Cary case often Inc., (Okla.1997), 940 P.2d 201 young where the was a child who was severely burned when a water heater parents’ garage exploded. defendant, On motion of the child, trial, who was six-and-a-half at the time of was excluded from the courtroom during liability phase of the trial solely ground of his physical appearance it would —that prejudice jury. Supreme reversed, The Oklahoma Court holding Party’s physical appearance “[a] cannot be the courtroom, sole basis for exclusion from the and does not amount an ‘extreme permitting circumstance’ exclusion.” 940 Cary, P.2d at 204. Although the court noted that jury sympathy could not always jury prejudice be translated into that and the Americans With Disabilities Act added a new issue, dimension to the it also concluded that the record was not clear that the meaningfully child “could not comprehend what was on” going and that the defendant failed to show that the child “would have of no been assistance to his attorney.” 205, Id. at 206. Despite age, his tender the child had a distinguished 206. The court Id. at of the event. recollection that, ground on the of Helrninski holding harmless error the from retarded developmentally child was in the constant required autistic, speak, not birth, could was old six-year a normal Cary in care, plaintiff whereas the Greyhound, Id. also Florida and scars. See for his burns but (no injured 396, allowing plaintiff in error 60 So.2d supra, trial, it was not clear where non-bifurcated to attend or some proceeding the assist not understand could plaintiff Holl, (Fla.App.1969) 421-22 So.2d and Talcott way) Purvis, testified), supra, (same; compare but actually plaintiff “in present to be right has (plaintiff 203 So.2d incapaci- or so incompetent he was showing of a absence trial proceedings”) comprehend could not tated that he Rubin, (Fla.App.1975) 318 So.2d Freeman v. (same). in a case analysis appropriate that the

We believe There the Helrninski court. employed as this is that such denied, in the not even may right presence, is a trial, party’s because the solely of a bifurcated liability phase right jury sympathy. may engender appearance physical absolute, against It must be balanced however. not is holding is a to a fair trial. Our right equivalent defendant’s trial, the of a bifurcated liability phase In the one. narrow where, after a plaintiff to exclude has discretion court either plaintiff, to observe the hearing opportunity and an determines, means, other reliable person (2) (1) injured; severely is record, plaintiff that: conduct of the defen injuries to the attributes those plaintiff (3) plaintiffs that the dant(s); prospect there is substantial to side with jury cause the may courtroom presence than on the evi rather sympathy of emotional out plaintiff participate (4) unable to communicate dence; is plaintiff (5) would plaintiff meaningful way; in any in the trial all of proceeding. When comprehend be unable even here, exist, they plaintiffs did circumstances those presence, an exercise of truly presence is his/her decision making a conscious incapable for the as an regard. presence piece His is rather exhibit—a prejudicial, evidence—that is both irrelevant and and thus in balancing process Maryland invokes the enunciated Rule 5- 408. There was no abuse of discretion here. THE COURT OF SPECIAL

JUDGMENT OF APPEALS AFFIRMED, WITH COSTS.

RODOWSKY, J., dissents, BELL, C.J., concurs and dissents.

RODOWSKY, J., concurring in in part dissenting part. join issue, I opinion of the Court on the I join venue in III dissenting Part opinion by Judge Chief Bell on plaintiffs issue of the exclusion from the courtroom. BELL, C.J.,

Dissenting Opinion by III part of which is joined RODOWSKY, by J.

Today, majority holds that a plaintiff, who is disabled and has not court, waived the to be present may be excluded from liability phase of his civil action even though presence his would not disruptive.1 addition, it con- that, cludes in this venue lay Anne Arundel County, plaintiff having experienced first injury the form of “neurological deterioration” and pain suffering in that County. majority reasons this conclusion is inescap- admission, able because of the plaintiffs own answering an interrogatory:

“After being released from at 3:05 p.m. August [NAHA] 18, 1988 Darwin to complain continued of headache and that him evening gave his father prescribed another Viacodin as 1. The Petition for filed parents, Certiorari and his petitioners, framed the issue in terms of a violation of the Americans Act, (1994 §§ With Disabilities Supp.1999), U.S.C. 12101-213 & plaintiffs liability phase whether the exclusion from the of his trial Maryland violated the United States and Constitutions. The Court sua sponte requested parties that the address whether the trial court has and, so, discretion to exclude a if whether that discretion was abused in this case. 19, 1988 August morning, The next Dr. Fields.... took parents of a headache and complained

Darwin still Dr. Lee noted Dr. Lee.... pediatrician, him to his stagger- now headache, and was drowsiness Darwin had parents for Darwin’s immediately arranged he ing, and Maryland Hospital.” University him to take of the Court judgment majority affirms ruling, In so turn, which, judgment affirmed the Appeals, Special v. North County.2 Green for Anne Arundel Circuit Court Ass’n, Inc., 221 730 A.2d 126 Md.App. Hospital Arundel ac- wrong on both (1999). majority In my opinion, counts.

I. called condition born with medical Darwin Green was causes accumulation fluid in which excessive hydrocephalus, born, a Shortly after he was on the brain. pressure increased to release ventricle of his brain in the placed shunt3 was fluid up build of intracranial caused pressure body. Darwin part to another of his the extra fluid draining and, although he of the shunt placement well to the responded with the shunt and problem experienced previously had Appeals,' challenged Special the Court of petitioners have never 2. The (1973, Court’s, Maryland interpretation Code 1998 and now this Article, 6-202(8) Proceedings as § and Judicial Repl.VoL), of the Courts arises” brought “where the cause of action to be permitting tort actions place where action arises is the holding "where the cause of or its breach, causation, (duty, negligence claim all the elements of cases, injury is the last negligence because injury) satisfied. In are existence, negligence arises a cause of action to come into element Ass’n, Hosp. v. North Arundel injury occurs.” Green where the first Indeed, 394, 408, (1999). Inc., they Md.App. 730 A.2d holding absolutely as correct. interpretation and the embrace both the experi- that "Darwin first disagreement is with conclusion Their pain 'neurological injury deterioration’ in the form of enced thus,] [and, County, of action arose the cause suffering in Anne Arundel county.” A.2d at 232. Id. at in that excreting bypass or divert device used to 3. A is a mechanical shunt (24th Dictionary Medical fluid. See Stedman’s accumulations of ed.1982). limited, capability intellectual was somewhat he was able to special reasonably attend education classes and function well. The events giving rise this action occurred when Darwin years was eleven old. He of a complained headache and Concerned, began vomiting and feeling nauseous. his father him took room emergency Hospital of North Arundel Association, (“NAHA”), Inc. where Dr. Richard T. Fields room emergency physician duty. Dr. Fields ordered scan, an emergency CT which was Dr. interpreted by Stewart Axelbaum, P. observed, a radiologist. Although Dr. Axelbaum of, and noted the presence shunts Darwin’s brain as as well abnormalities, a number of including other an old hygroma and a porencephalic cyst, he those interpreted abnormalities changes, old consistent pathology congenital related to consulted, malfunctions. Dr. Fields also by telephone, Dr. Mody, Harshad R. the neurologist hospital. on call for the Dr. Mody opined that Darwin discharged could be when his headache subsided. Darwin was discharged without a shunt having when, malfunction diagnosed been after taking pain prescribed Fields, medicine Dr. by he reported that his head- gone. ache was NAHA,

After his release from again complained Darwin of a headache Therefore, and he continued to do so. at direction of pediatrician, his whom he consulted day the next Fields, at suggestion of Dr. he was taken to the University of Maryland (“UMA”), Hospital where his condition was cor- rectly diagnosed. Before the operated doctors UMA condition, however, correct Darwin went into cardiac arrest, which left him in a chronic vegetative state.

Darwin, parents, and his in parents filed the Circuit Court for City Baltimore a medical malpractice action naming NAHA, Dr. Fields and respondents, two as defendants. suit, In they alleged that the respondents’ negligence caused Darwin’s injuries, respondents breached the applicable standard of care by failing diagnose the alleged brain, malfunction of the shunt in Darwin’s proper and that a diagnosis would have prevented his subsequent cardiac arrest. court determined City Baltimore hearing,

After a City, proper was the not Baltimore County, Arundel Anne arose, NAHA and both venue, cause of action noting that the Arundel solely, in Anne business Dr. Fields conducted The case was there.4 Dr. Fields resided and also that County County. Arundel to Anne transferred subsequently Arundel Coun- for Anne in the Circuit Court pending While defendants, Mody, the Drs. Axelbaum and two additional ty, maintained business and conducted regularly of whom latter in Baltimore, joined proceed- were City in the an office second petitioners’ until after This not occur ings. did Balti- for in the Circuit Court action filed malpractice medical Axelbaum, Mody and Drs. naming this one City, more Appeals commented: ruling, Special the Court 4. As to this that, finding time the Judge at the agree Rombro's parties "All City, and Dr. Fields NAH[A] both complaint was filed in Baltimore offices County who maintained their residents were Anne Arundel such, County. neither solely As conducted their business only proper County venue was the party disputes that Anne Arundel 6-201, single applicable to provided "a venue § CJ because under 6-202(8) Nevertheless, §§CJ appellants note that all defendants." actions, allowing plain- negligence provides alternative venue an arose.” county where the cause of action bring tiffs to suit in Inc., 406, Ass’n, Md.App. at 730 A.2d Hosp. Arundel Green v. North Swanson, A.2d Wilde v. 314 Md. court cited at 228. The (1988), multiple venues are proposition that when VoL), (1973, §§ 6- Repl. 6-201 and Maryland Code proper under Article, Proceedings can and Judicial 202 of the Courts proceed under either section. choose to provides: 6-201 Section §§ "(a) 6-202 and 6-203 Subject provisions Civil Actions.— law, brought a civil action shall be provided and unless otherwise resides, regular busi- county carries on where the defendant in ness, habitually engages a vocation---- employed, defendant, (b) there is more than one Multiple Defendants. —If defendants, single applicable to all under subsection venue there is no (a), county one of them could be may in which all be sued in sued, county of action arose." where cause or in relevant, § As 6-202 instructs: 6-203, § § provided in 6-201 or to the venue “In addition county: may brought indicated following in the actions (8) action negligence the cause of based on Tort action —Where arose....” NAHA, addition to Dr. defendants, Fields and and also setting forth the against same claims NAHA and Dr. Fields as already pending were in the Circuit Court for Anne Arundel County, had been dismissed5 and their motion to transfer the case back to Baltimore City had been heard and denied.6 Thereafter, the trial court bifurcated the liability damages issues and set a trial date as to the former. respondents

The moved in limine to exclude the plaintiff from the during courtroom liability phase of the trial. The respondents plaintiffs relied on the physical disability and the medical evidence concerning the nature and extent of his physical condition. respondents described Darwin as be, being, likely bound, wheelchair with a tracheotomy that allowed him neck, to breathe through a hole in his tube, feeding and an ambubag provide supplemental oxy- gen, requiring by periodic assistance suctioning. They argued, they reiterated on appeal, that because Darwin’s appearance mere before the jury at trial prejudice would them, his exclusion permissible was within the trial court’s discretion and did not ADA contravene the or the federal and state constitutions. In further support of their argument, the respondents emphasize that Darwin is a chronic vegetative and, therefore, state “will not be able to understand the case, 5. dismissing addition to the Circuit Court for Baltimore City imposed petitioners' sanctions on the counsel. Neither of the rulings appealed. made, was No issue has presented, been in this appeal as to the effect of the Circuit Court City’s for Baltimore dismissal City of the second Baltimore Mody in which Dr. was named as a defendant. 6. Special To the Court Appeals, important it was to the correctness of the Circuit Court for County’s Anne Arundel ruling venue that Dr. Mody, everyone whom provided conceded being basis for venue set in City, Baltimore was not added as a ruling defendant until after the the motion to City transfer to Baltimore and that the motion to transfer was not Mody renewed after Dr. Mody certainly added. Dr. view; fact, subscribes to that essentially that is argument his support of affirmance of the venue petition- decision as to him. To the ers, Mody’sjoinder Dr. and their failure to renew the motion to transfer irrelevant, joinder after simply are being the critical issue determination of injury where Darwin's occurred. his will not be able to communicate with

proceedings. He in that any meaningful participation not have counsel. He will form.” After motion. granted respondents’

The Circuit Court day in viewing videotape of a considering arguments Darwin, virtually Darwin was motion- the life of it found that tube and suctioned from feeding fed less had be Moreover, the two hours. court determined every the neck his ability Darwin have the to communicate with that did not nurses, or that he would be unable attorneys, parents; case; in to his his attorneys preparing assistance provide any comprehend any portion not and that he would understand pleadings.7 or the It therefore proceedings of either the trial no presence in court would serve concluded that Darwin’s to be purpose highly prejudicial, prejudice other than jurors against respondents. ultimately on the presented

The case-was tried merits liability. having The court to the for a decision on jury Dr. motions for made Mody’s judgment, NAHA’s and granted plaintiffs returned jury at the conclusion of Axelbaum, in Drs. Fields respondents, verdict favor of the “departed accepted from standards concluding that neither Darwin care the treatment of Green.” It Appeals affirmed. Special applied The Court of Court of analysis Appeals United States employed Labs., Ayerst Helminski v. 766 F.2d the Sixth Circuit (6th Cir.1985), of the exclusion of resolving propriety addition, appel- trial. the intermediate civil from that, to have that court if we were decided “[e]ven late noted not excluded from the court- petitioner] should have been [the room, have failed to show the error was appellants present during every minute of the prejudicial,” “[i]f because argument rejected not specifically petitioners' 7. The that it is any process, noting could known whether Darwin understand conveyed ability "is to his such to understand not fashion attorneys representing parents or him.” will trial, presence could have affected the answer to [the] standard of question.” care Id. at 730 A.2d at 237. The majority agrees that the appropriate analysis is that of Op. Helminsld court. at 655. Characterizing it’s holding one,” as “a narrow the majority announces: “In liability phase trial, the of a bifurcated the court has where, discretion to exclude a plaintiff after a hearing and an opportunity plaintiff, observe the in person either or means, determines, other reliable the on the rec- (1) ord, (2) plaintiff that: the is severely injured; the plaintiff injuries attributes those to the conduct of the defendant(s); (3) there is a substantial prospect that the plaintiff’s in presence may courtroom cause jury side with plaintiff out of emotional sympathy rather than (4) evidence; on the the plaintiff is unable to communicate participate (5) the trial in any meaningful way; and would be unable even to comprehend pro- ceeding. exist, When all of those circumstances they as did here, plaintiffs presence is not truly an exercise of right of presence, for the plaintiff is incapable his/her making a conscious decision in that regard. presence His is rather as an exhibit —a piece of evidence—that is both irrelevant prejudicial, and thus invokes the balancing process enunciated in Maryland Rule 5-403.” Id. at 626-27.

II. Venue describes the proper court in which to bring an (1973, action. Under Maryland §§ Code 1998 RepLVol.), 6- 201 and 6-202 of the Courts and Article, Judicial Proceedings venue is proper the county where resides, the defendant regular business, carries on a is employed, habitually engages vocation, or where the cause of Thus, action arose. plaintiff may bring his or her action in any county where one of the prerequisites apply. petitioners The initiated their action in the Circuit Court for Baltimore City. That court not Baltimore County, and that Anne Arundel

determined venue, ruling: City, proper was in Anne me the cause of action arose clear to that “[I]t Anne are all residents of County. The defendants Arundel County. Arundel apparent their became negligence that the result of fact jurisdiction to transfer the jurisdiction other doesn’t some be.” may case county

that subdivision could was that Darwin ruling as to whether the pressed When that such damages, noting have determina- sued NAHA on the court allegations,” issue of fact based tion “an in Anne occurred negligence clarified it “found that that Arundel It the case Anne County.” Arundel transferred challenged ruling appeal County petitioners and the in Balti- of action arose arguing, in cause particular, more City. issue, Special Appeals addressing Court meaning phrase, to be of the the critical issue the

perceived arose,” (b) §§ 6-201 of action as used “where the cause 6-202(8). point, respondents successfully argued that the On action City Court that venue a tort to the Baltimore Circuit occurs. alleged action arises where the breach or contract rejected argument, after appellate court that The intermediate of where analysis the same determination applying of when it arose applies cause action the determination Balti- judgment of the arose. The court thus reversed Nevertheless, it proceeded City point. more court argument respect petitioners’ address the merits cause of arose. to where the action meaning “injury” determination was the Critical to that definition, the In of a viable as used in the statutes. search the definition enunciated Special Appeals adopted Court of Sendees, 233, 546 Cytology Edmonds v. 681 A.2d Md.App. nom., Edmonds, (1996) sub Rivera 347 Md. aff'd (1997): A.2d 1194 “ when, ... as a ‘injury’ ‘A sustains an result patient can tort, compensable damages or she first sustains he Therefore, be proven certainty. with reasonable patient ‘injury’ could suffer an as a of a negligent misdiagno- result (1) sis, when he or experiences pain she or other manifesta- (2) tion of an injury; the disease beyond point advances it where was at the time of the misdiagnosis point and to a (a) (b) treated, where it can no longer effectively cannot be treated as well or as completely as it could have (c) been at the misdiagnosis, time the treatment entail expense would or detrimental side effects that would not likely have occurred had treatment commenced at the (3) time; not, earlier patient course, dies. This is checklist; an exhaustive the overriding inquiry in all cases must be when patient first legally compensa- sustained event, ble damages. occurs, the injury as we have observed, when legally compensable tort damages oc- first cur, regardless of damages whether those are discoverable ” or undiscoverable.’ Green, (citations omitted). 126 Md.App. at A.2d Based on this contention, definition and the petitioners’ made in response to an interrogatory, “[a]t time [Darwin] inwas the care of the Defendants at North Arundel Hospital, the child’s intracranial pressure was constantly increasing causing neurological deterioration him moving to- inevitably ward and ultimately causing massive brain injuries,” the inter- mediate appellate rejected petitioners’ argument and agreed with respondents,’ holding “that Darwin first suf- injury fered Anne Arundel County.” Id. at 730 A.2d at 231.

The Circuit Court for City Baltimore had determined that Darwin’s cause of action arose in Anne Arundel County, not there, because his injury manifested but because alleged negligence occurred there. The Court of Special Appeals rejected determination, that holding instead, as the petitioners argued, that it is the occurrence of injury that is disposi- tive. Rather than remanding the case for a new trial on that however, point, the intermediate appellate court determined the issue itself. In doing, so it erred. And the majority compounds the error by affirming.

636 in the of context meaning “injury” of the word is, indeed, involving case at the crux of misdiagnosis In the issue to of action arose. such where a cause occurred, to injury for the answer exactly decided is where where predicate determining necessary that question this This has action Court considered the cause of arose. of the determining applicability context of issue (HCMCA), Maryland Malpractice Claims Act Health Care 3-2A-09 of (1976, RepLVol.) through §§ 3-2A-01 1998 Code Article, v. Proceedings Oxtoby see and Judicial the Courts (1982); see McGowan, 83, 447 A.2d 860 also Johns 294 Md. 549, 429 538 48 A.2d Hosp. Lehninger, Md.App. v. Hopkins 325, 428 80 (1981); 48 A.2d Blanchfield, Md.App. Dennis (1987, § (1981), Repl.VoL), 1998 5-109 Maryland Code for Article, of limitations Maryland’s statute Courts Edmonds, supra, See Rivera v. malpractice medical claims.8 (1990); 249, 577 Hill v. 320 A.2d 64 Jones v. Md. Speed, (1985). 689, A.2d We have con Md. 501 27 Fitzgerald, 304 “ or wrongs ‘injury’ legally cognizable refers cluded that rendering from or failure arising resulting damage the invasion of care” is “concerned with render health 294 Oxtoby, with harm.” coupled interests legally protected 695-96, Hill, also Md. at 94, 447 A.2d at 866. See Md. at indicated, this Oxtoby 30-31.9 As the Court 501 A.2d at (1974, Repl.VoL), § Article Maryland 5-109 of Courts 8. Code provides: injury rendering damages arising an out of action for for "An professional by physician be filed to render services shall failure (2) (1) injury years time the was committed or five within discovered, injury years when of the date within three is the shorter.” whichever 235, 1976, Oxtoby 5 of Acts of which At was section Ch. 9. issue adopted by Malpractice Act Ch. provided Claims that the Health Care 1, 1976, only July apply to medical take effect shall "shall Hill, Court injuries occurring on that date.” construed or after provided Maryland § which Code Chapter Acts of (1974, Proceedings § Judicial Repl.VoL), 5-109 of Courts and Article, only injuries occurring Chapter, apply "shall enacted July held there is "no substantive after 1975.” We have "injuries occurring” legal purposes application” distinction in

637 definition is consistent with the discussion of the word Wisconsin Supreme Court State ex rel. McManus v. Board Fund, Trustees Policemen’s 133, Pension 138 Wis. of of 806, (1909): NW.

“ ‘The word ‘injury,’ ordinary usage, modern is one of very designation. broad In law, the strict sense law, especially the common its meaning corresponded with its etymology. It wrongful meant a invasion legal rights and was not concerned with the hurt or damage resulting from such invasion. It is thus used in the familiar law phrase damnum In absque injuria. common parlance, however, it is broadly enough used to cover both the dam- num and the injuria law, of the common and indeed is more commonly used to express the idea belonging to the former word, namely, the effect recipient way hurt or damage, and we cannot doubt that at this day its common and approved usage extends to and includes any hurtful or ” damaging effect which may be by any suffered one.’ 94, 294 Md. at 447 A.2d at 866.

Generally, the determination of when an “injury” occurs ais question fact, Rivera, 220-25, 347 Md. at 699 A.2d at 1201- 02; Hill, 697, 304 Md. at 31, 501 A.2d at guide for which is the date on which the alleged negligent act was first coupled Hill, with harm. 697, 304 Md. at 501 A.2d at 31. Conse- quently, an injury may occur even though patient has not then suffered all of damage may result from the negligent act. 97, Oxtoby, Md. at 447 A.2d interpret- ing Lehninger, supra., Md.App. 429 A.2d 538. The test that the Court of Special Appeals enunciated in Edmonds Services, v. Cytology supra, has been acknowledged by this Rivera, Court. See 215-23, 347 Md. at 699 A.2d at 1198-1202 (affirming application court’s of the rule of Hill v. Fitz- ). gerald injuries the Act and occurring” "medical purposes of the Health Hill, Malpractice Care Claims Act. 304 Md. at 501 A.2d at 30-31. Services, appel- the intermediate Cytology Edmonds of summary judg- court’s grant court vacated trial

late ment, reasoning: opinion Ms. proffer expert did

“[Plaintiffs] to any April spread prior had not at time Edmonds’s cancer (i.e., filing to the 9, years prior the date five 1988 claim) (i.e., to years prior the date five Ms. April death). any did not advance But [Defendants] Edmonds’s assertions, that evidence, conclusory Ms. show beyond during periods. time cancer had advanced those Edmonds’s any suffered contend that Edmonds [Defendants] Nor do prior August 1988. There- from cancer symptoms ” fore, that the circuit court erred.... we conclude Significantly, agreeing at 681 A.2d 565. Md.App. at out: pointed this Court Special Appeals, the Court of sum- party opposing most favorable to the evidence “[T]he should have allegedly is the cancer that mary judgment that remain July 1983 could detected Mrs. Edmonds been years. The most long as five inference dormant for there are no additional is favorable to microscopic if tumor remains consequences adverse to demon- attempted have not unchanged. The Defendants junk statement is sci- plaintiffs expert’s] strate that [the proba- from him the develop Nor the Defendants ence. did for remaining condition’s dormant bility undiagnosed years.” five

Rivera, A.2d at 1202. at Md. no

Here, City findings Baltimore made Court for Circuit by Darwin occurred. injury of fact as when the suffered Indeed, that it did not have make the court was adamant And, course, injury where findings such fact.10 following colloquy: in the This is reflected 10. Honor, just may question, I ask "MR. KERPLEMAN: Your left finding that the child Is Court that instant record? fact, he, hospital a— did have Kerpleman, Mr. I— THE COURT: could have sued'— MR. KERPLEMAN: —that he occurred for purposes venue was not the issue at trial. Nor ground was the upon relied Special the Court of Appeals argued by respondents either the trial court or in the appellate Thus, intermediate court. petitioners as the main- tain, Specials the Court of Appeals made a finding of fact as to when the injury occurred. majority has now done the same. That is not part of the appellate function. event,

In any that finding of fact is error under the test of Edmonds Cytology Services. That test provides alternative methods, depending upon circumstances, the existing of deter- mining when an “injury” sure, has occurred. To be one applies alternative when the plaintiff experiences pain or other manifestation of an injury. But that alternative must be juxtaposed against the alternative that applies when injury has progressed beyond point at which it was at diagnosis, such that it cannot then be treated or treatment would be more difficult or expensive. The latter alternative apply must to the situation in which the misdiagnosis of an asyptomatic Logically, test, injury. different at least as difficult prove, must apply when the condition that is misdiagnosed is sympto- test, matic. That I submit, must require proof the pain being experienced indicates a deterioration of the condition beyond where it was when diagnosis the was made.

If all that is required to satisfy the definition of “injury” is the continuation of pain already being experienced before THE COURT: I’ve said— MR. KERPLEMAN: Hospital? North Arundel that, THE COURT: I don't have to Kerpleman. decide Mr. I’ve said what I— Well, do, MR. you KERPLEMAN: I think predi- Your Honor. As a your cate to you decision must have decided that at the instant he left Hospital, Anne Arundel he could have Hospital, sued North Arundel just and I your want clear on the finding. record if that is THE COURT: I don't have to— KERPLEMAN; MR. Because it’s an issue of fact based on the allegations. THE Kerpleman, COURT: Mr. I don’t have finding. to make such a I found negligence that he occurred County. in Anne Arundel That’s happened,

where it proper nd that’s the venue for the suit. MR. Irrespective KERPLEMAN: injury of where the occurred? THE COURT: I argue point don't want to you____” made, is or where or deteriora- misdiagnosis aggravation is the contin- misdiagnosed required condition

tion of the aggravated sufficient evidence of deterio- pain ued is 6-202(8) condition, § mere Such an surplusage. rated nullity an the venue statute a because interpretation renders of a condition would neces- misdiagnosis syptomatic action for brought misdiagnosis to be sarily, always, have where occurred. already he was presented at the hospital,

When Darwin alleged that of the condition it is symptoms exhibiting experiencing pain he was misdiagnosed: respondents was, thus when he question of a complaining headache. beyond the discharged, progressed had the condition was words, he In other had presented? at was when point which so prescribed extent progressed the condition pain, injury? Certainly, presence an constitute being cannot already experienced, of what be continuation and, indeed, not given, has been enough; where treatment been, of the condition was could not have because nature experiencing diagnosed, the mere continuation of may may injury purposes not suffice to establish pain the venue statute. best, Court of interrogatory

At answer which the placed, majority places, dispositive and the Special Appeals was, best, conclusory; it was not suffi- simply significance in Darwin’s the extent of the deterioration cient establish and, particular, when his condition reached the condition It injury. at which such became an must point deterioration part was not kept interrogatory in mind that nor, given, at the time it was summary judgment record on Certainly, the answer accepted as true or uncontradicted. entry summary judgment as to require was not such the Indeed, did so petitioners’ respondents favor. fact, so, more was rightly satisfactory proof contend. In and supra. v. required. Compare Speed, Jones physi- the defendant Speed, Jones visited times, complaining on each occasion severe cian sixteen headaches, the cause of which was discovered some five plaintiffs months after the last visit the plaintiff when suffered The seizure. defendant failed to discover on any of the visits the plaintiffs headaches by were caused a brain tumor, a brain which scan would have revealed. This Court that although negligence concluded producing ‘injury’ an oc- on the curred first visit well as each the fifteen subse- “ visits, quent the defendant’s failure to ‘a progressively detect ” worsening and changing medical proximately condition’ “ ‘[ejach headache, caused severe and prolonged final and the ” seizure----’ atMd. 577 A.2d at Discussing 67. Jones, pointed we out Rivera that the uncontradicted evidence on summary judgment11 in Jones was that an “un- diagnosed cancer was progressing worsening during period following misdiagnosis, if even cancer asymptomatic.” See 347 Md. at 699 A.2d at 1202. case, In this rather than decide merits of whether and, therefore, where injury Darwin suffered the proper venue action, for his of Special Appeals Court have should only determined whether the Circuit City Court Baltimore applied proper test reaching its venue Ac- decision. I cordingly, required believe that a new trial is to be conduct- venue, ed in proper for the determination of which this case should be remanded.12 plaintiffs

11. expert’s affidavit stated: my opinion performed "It is that if a CT by Scan had been Mrs. doctor, Speed, during Jones’ Dr. at eight year time profes- their relationship, sional that the brain certainly tumor would have been detected. Each occurred, Speed, separate time Mrs. saw injury Jones Dr. medical visits, because Speed, of the failure of Dr. each of these progressively to detect a worsening changing medical condition. headache, seizure, prolonged Each severe and grew and the final out injuries directly a series of medical caused carelessness Speed.” the treatment administered Dr. Speed, 320 Md. at 577 A.2d at 67. Jones v. Mody granted Doctor judgment NAHAwere at the conclusion of 12. petitioners’ concluding the court there was insufficient that, culpability go evidence of jury. their It is well settled 642

III. by jury right, of the trial whether Although importance the Maryland in both Consti court, well is established or 24, Rights;13 see also tution, Declaration of Maryland see art. (“That man, 19, every Rights of Maryland art. Declaration ought to property, to him his or injury person done any Land, ought of Law the and remedy by have course sale, fully any without without justice right, freely have to to Law of denial, according delay, without speedily Const, Constitution, amend. Land.”), see U.S. the Federal a litigant, is due this XIV,14 process an element to issue upon precise has called address not been Court however, have, wheth We considered in this case. presented trial his or her is litigant a civil attend er Horton, v. 226 is not. concluded Casson absolute and Sabo, 581, (1961); v. 210 575, 576, 582 Gorman 174 A.2d Md. (1956). 475, 155, 167, 122 481 A.2d Md. decisions rendered conclusion consistent

Our the issue. See of courts have considered majority Pablo, Inc., 472, 205 478 San F.3d Hospital v. Rubert-Torres Columbia, 1201, (1st 697 A.2d Cir.2000); v. District Levi Laboratories, 766 Ayerst Helminski v. 1205 (D.C.App.1997); Richardson-Merrell, (6th 208, Cir.1985); Inc. In re F.2d 217 (S.D.Ohio 1212, 1985); Products, 1224 F.Supp. 624 Bendectin (Alaska 1982); 369, Florida v. P.2d 374 Ryfeul, 650 Ryfeul (Fla.1952); Lines, Jones, v. 60 396 Inc. So.2d Greyhound error, be ordered. As Dr. prejudicial no new trial will unless there is NAHA, Mody prejudice. no there was provides: That 13. section imprisoned or ought or disseized of "That man to be taken no or, outlawed, exiled,

freehold, any or privileges, or liberties or life, manner, liberty deprived property, or but destroyed, of his peers, byor the Law of the land.” judgment of his Constitution, XIV, de- 1 the United States Section 14. Amendment clares, part, in relevant life, liberty, property, deprive any person State shall "[N]or law; deny any person its process within without due nor equal protection jurisdiction of the laws.”

643 Court, 85, 1331, 1334 n. Morley v. 131 Ariz. 638 P.2d Superior (1981); Roth, Cal.Rptr. 10 Cal.3d Whitfield (1974); Telephone P.2d 588 Purvis v. & Inter-County Co., (Fla.Dist.Ct.App.1967); Telegraph So.2d Bozarth, v. Dickson v. Gage (Ind.App.1987); 505 N.E.2d 64 Bober, 526, (1964) (“determina- 334, 269 Minn. 130 530 N.W.2d plaintiff by injuries tion of a reason of to whether unable trial should proceedings contribute to understand the be permitted ... to attend trial must rest in the sound the ”); Moore, discretion of the trial court ... Mason v. 226 993, (1996); 641 Caputo Joseph A.D.2d N.Y.S.2d 195 v. J. Co., 507, Trucking Sarcona 204 A.D.2d 611 655 N.Y.S.2d (1994); Patton, 494, Radjpaul Matter v. 145 A.D.2d 535 (1988); Joseph’s Hospital N.Y.S.2d 743 Reems v. St. Center, (N.D.1995); 536 Cary Cary Health N.W.2d 666 ex rel Oneok, Inc., (Okla.1997); v. By 940 P.2d 201 Bremner Charles, Through Bremner v. 312 Or. 821 P.2d 1080 (1991).

Some these cases do not exclusion permit requested and, so, not spell do out the circumstances under which Thus, define, exclusion be upheld. they would do not but, rather, limits of specificity, the the trial court’s discretion they simply recognize right to present be absolute, stating general specific and non that “[a]b- rule sent a voluntary only waiver . .. in the case of extreme may a party circumstances be excluded from the proceedings.” Cary Cary, ex rel P.2d at supra, Ryfeul, 940 204. See also supra, at 650 P.2d 372 of the (stressing circumstances case holding as basis for that proceeding modify with a a hearing error); divorce one of was parties decree absence of Lines, Inc., Florida 60 Greyhound supra, So.2d at 397 (noting power appearance of the a “regulate party] [of prevent opposite from party being victimized and the ”); jury being Purvis, from subterfuge.... deceived ... supra, (noting 203 So.2d at 510-11 the distinction between Bober, Florida Greyhound supra, Lines Dickson v. latter); purporting to understand the result reached Mason, supra, (stating N.Y.S.2d at 197 an express “absent circumstances, civil action is a a or unusual

waiver trial”); Matter all during stages to be present entitled (same). at 745 535 N.Y.S.2d of Radjpaul, supra, Roth, hand, supra, Cal.Rptr. On the other Whitfield malpractice n. held P.2d a medical legs in both paralyzed who limiting a minor was 10-minute the courtroom appearance arm to a right and his illustrative also is Cary, supra, not an of discretion. abuse There, boy year burned six old badly of this of cases. group court, the trial “because the courtroom was excluded from thfought] trial would judge] he so badly [the scarred [wa]s question whether unfairly prejudicial.” Answering be disfigurement, solely upon based party could excluded Supreme opined: Oklahoma Court here, held, nor we so hold has never do “Oklahoma is absolute. present to be the courtroom party’s disruptive in which the be- contemplate can situations We exclusion party’s a necessitate the havior of would party courtroom, after a may proceed party a trial from the However, right present. the to be voluntarily has waived party may that a be authority proposition find no for we a disfigurement. reason his Absent solely excluded that in the of extreme voluntary only we hold case waiver proceed- a may be excluded from party circumstances .... ings cannot be the sole basis party’s physical appearance

A courtroom, an not amount to exclusion from the and does agree exclusion. We permitting ‘extreme circumstance’ Court stated: Supreme with the Florida which present action is to be who institutes an entitled ‘One That, think, not right we is a that should when is tried. It litigant. condition of the tempered by physical be indeed, rule a be to a that strange, promulgate would depend to at trial appear his own would plaintiffs attractiveness, he could be excluded personal that unsightly room if he to be from happened from injuries prove he was to the defendant trying which ” caused.’ negligently

645 Lines, at 204 Cary, (quoting Greyhound 940 P.2d Florida 896) (internal omitted). 60 at citations supra, So.2d Most of the cases holding party presence is abso- lute limited recognize party’s “under circumstances i.e., involuntary might justified,” exclusion the mere where presence of that party prejudice party would the other regard liability to and that party’s presence, party because the understand, to, is unable participate or contribute proceedings, justice. would not aid fair administration See, Helminski, hold, however, at e.g., 766 217. They F.2d behavior, that “absent disruptive involuntary of a exclusion is party who able comprehend and aid proceedings counsel would constitute a process denial due since exclu- sion of him such would deny right to obtain fair Rubert-Torres, trial.” 478; Id. also supra, See 205 F.3d at Reems, 669; supra, N.W.2d at Caputo, supra, 656; Bremner, 1085; N.Y.S.2d at supra, P.2d at In re Richardson-Merrell, Inc., 1224; supra, F.Supp. at Dick- son, supra, 530; 130 N.W.2d at Gage, supra, 505 N.E.2d 67. representative.

Helminski It injury involved an plaintiff, resulted an who was autistic child with an extremely IQ low and speak, daily, unable to needing twenty- four hour care. The defendants moved to exclude the from liability trial, phase of arguing appear- that his ance jury before the prejudicial would be case. their See 212. F.2d at agreed. district court On appeal, Id. the United Court Appeals States for the Sixth Circuit Although affirmed. the basis of the ruling was “harmless error,” the court addressed merits developing analysis two step determine whether a party’s involuntary exclusion from the liability phase of trial process: violates due

“In short, the defendant who seeks to a exclude handi- capped plaintiff must at establish a hearing plain- that the presence tiffs prevent would or impair substantially the jury’s performance of fact-finding its task. requisite The showing prejudice of cannot be satisfied simply establish- ing that a has a physical injury; mental the party seeking exclusion must establish that the party’s jury from likely prevent to the or conduct is

appearance a to party’s ability that duty. its We reiterate performing counsel is not the proceedings the assist comprehend issue whether the juncture is inquiry relevant this —the the unfairly prejudice proceedings will party’s presence his favor. party’s that the mere

Should the district court determine the court must next consider presence prejudicial, would be proceedings can the and aid the understand party whether can party If trial court concludes that the counsel. assist counsel proceedings comprehend involuntarily excluded meaningful party cannot be way, case, cautionary a impact; such regardless prejudicial in a the interests the defendant protect instructions will comprehend is able to party trial. Exclusion who fair infringe attorney upon and aid his would proceedings every which litigant standards fairness the ‘fundamental expect,’ Drayton v. court has a before federal (6th Cir.1978), F.2d Corp., Chemical Jiffee hence, deprivation process of due which would constitute only a new trial.” by granting could be remedied I’d.at 218. that which court is proceeded “[a]n on premise

The capable is jury willing of a fair trial ‘a component essential ” it,’ solely that the the case on the evidence before decide jury’s ability responsibility “safeguard court has the rather than upon presented the evidence decide case based recognized, The on factors.” Id. at 217. court emotional however, juror sympathy a difference between there juror prejudice juror presents potential juror actually prejudice, “juror sym- sympathy results juror prejudice.” insufficient to establish pathy [being] alone that, will “[generally, jury Id. court noted follow also promise fulfill to decide the the court’s instructions and its Thus, only facts.” Id. when mere solely case to arrive at presence jury would render the unable concerning liability, judgment an made unbiased Further, clear, Id. rule enunciated be invoked. would the

647 the court that persuasion noted the burden of on the issue rests with the defendant who asserts prejudice, stating: “To involuntary allow on exclusion other basis would permit the presumption injured that an person’s presence alone will always deter the from jury fact-finding its mission. Such presumption only would institutionalize reaction based solely upon appearance.” Id.

Although the minority position, there also are cases holding that a plaintiff has an absolute right present at his or her See, civil 386, trial.15 e.g., Huybrechts, Rozbicki v. 218 Conn. (1991)16 363, 589 A.2d 365 that “a (recognizing party’s consti right tutional to a jury civil trial encompasses right to be present trial, the court all during phases of the including proceedings prior to case.”);17 the trial on the merits of the Co., Odum v. Corn 348, Products Refining 173 Ill.App. 352 (1912) (“We know no law that prevents persons interested from being present case, at the hearing their even though their unfortunate condition was such as to enlist the sympathy jury.”);18 Ziegler Funkhouser, v. 428, 42 Ind.App. 85 353, Hoffner, 817, (1964) Gallavan v. 154 Colo. 390 P.2d 818 has 15. however, proposition, been cited for this actually holds that "a litigant right, present has the to be at trial to assist his counsel in the trial, necessary and his good absence is a reason for a continuance.” Although decision, a recent Connecticut trial court v. 16. Wozniak New Hospital, *2, Britain General 2001 WL 717497 at Conn.Super. (June 2001), Lexis 1547 at *6 opines that does not state “Rozbicki party trial,” that a right has an absolute opinion attend cannot Rozbicki, overrule which Supreme is a Connecticut Court case. 17. Addressing the issue in right of a to a civil action present dire, to be during jury voir the Court stated: “We have assumed that a personal injury in a personal right action has a to be dire, present during long voir so orderly he does not ‘disturb the " business of the court.' Rejecting argument the defense presence that the of a widowed 18. plaintiff and her tendency children would have a sympathy to arouse it, jury basis, her, that would induce on that to find for the court stated: may “It be true presence that the of the widow and these children behalf, would tend sympathy to enlist the jury in their but the suit;

widow and parties children are interested in the result of this (1908) (every present has a to be litigant N.E. case);19 the trial counsel on be heard person (1890) 203, McIntosh, 79 Mich. N.W. McIntosh generally of witnesses exclusion (acknowledging court, out that pointing of the but the within discretion to authorized by is ... which the is no rule “[t]here Plain Leonard’s party controversy.”);20 a to the exclude[ ] of (1943) 135, 496, v. 130 31 A.2d 497 Dybas, Inc. N.J.L. field, to be to cause (determining “right parties that the of the the trial, stages at all of the person counsel present is basic to jury, process.”); of the due except deliberations 114, Nassau, 15, A.D.2d 408 N.Y.S.2d County v. 64 Carlisle (“the to (1978) right a person constitutional 116 fundamental cases therein jury a trial in certain civil includes have trial, except stages all of such a ancillary right present to be Berrier, 193, 97 246 N.C. jury”); Raper of the deliberations 782, (1957) to at all present entitled be (parties 784 are S.E.2d trial). aof civil stages cases, are clear. things lines of several foregoing

From involuntary waived. The may to be be right present trial or thereof is part from that party party’s exclusion exclusion, in involuntary that permit Those courts disfavored. absolute, not right party present of a be held which in involun- Those that are most agree point. on this liberal of no judgment belongs to them we know whatever is obtained persons being present prevents at the hear- interested from law though was such as ing their unfortunate condition even their jury, and we have not been referred sympathy to enlist the that, think, princi- as we announces a different counsel case ple.” Bozarth, Although Compare (Ind.App.1987). 64 Gage v. N.E.2d 19. come both sides appellate court seems to have out on the intermediate issue, spoken on this issue. Supreme Court of Indiana has of the Michigan Appeals, v. Wm. recently, Florence 20. More Court of Products, Inc., 613, Mich.App. 193 N.W.2d Moors Concrete (1971), they "an plaintiffs' had agreeing with the contention that stages proceedings regardless of present at all absolute to be nature,” error ruled that it was reversible whether criminal or civil wrongful courtroom require plaintiffs death suit leave the charge jury. judge reread the while tarily excluding party acknowledge may that such exclusion justified only circumstances,” Helminski, “under limited 766 F.2d at while those least liberal phrase the test in “extreme,” terms of Cary ex rel Cary, supra, 940 P.2d at “unusual,” Mason, supra, N.Y.S.2d at circum- stances. event,

In any physical appearance or condition of a party may not alone justify justify exclusion. To the involun- tary exclusion of party, there must be shown prejudice to the opposing party to the extent that the opposing party will not be Further, able to obtain a fair trial. seeking exclusion bears the burden of showing that only through exclusion can a lair Helminski, trial be obtained. 766 F.2d at 217.

This Court has twice question addressed the of proceeding with a trial in the absence of a party. occasion, On each context was the denial of a request for continuance. In both cases, we upheld the trial court’s exercise of In discretion. neither case was there a by motion one party to exclude the Gorman, other. In having observed that the defendants did argue, either in brief or at oral argument, that their case would be harmed continuance, refusal to allow the short, that actual prejudice claimed, “[n]o was much less shown,” 167, 210 Md. at 122 481, at A.2d the Court stated: “The right of a party to a present cause to be throughout the trial is not an absolute right a civil case and in the court, discretion of the regard due to the circumstances as to prejudice, the case may be tried or finished when a party, defendant, including a is absent.” Id. Casson, it was plaintiff who was absent. We de-

scribed the circumstances surrounding the continuance re- quest as follows: trial,

“On the day first 20, 1961, February she testified fully, in both direct and cross examination. That night she attack, had a heart and her sought counsel a continuance. Upon being informed that other witnesses were not avail- able, they because had been told plaintiffs not to that case would carried trial court stated

appear, the 23rd, that further February but no continuance over until 23rd, February counsel a requested granted. would be On Mrs. Casson was ground further on the that continuance witnesses, other that he had summoned appear; unable to disregard had them to that Mrs. Casson told but learned summons; Mr. but declined present that Casson testify present.” unless his wife was 582. relied on Gorman at We Md. at A.2d request, trial court’s denial the continuance affirming the had absolute to be no noting both no error. showing prejudicial that there was present and 576-77, 174 nor at A.2d at 582. Neither Gorman Casson Id. from presents. this case Far directly question apposite cases, fall closer to being involuntary exclusion both equation. “waiver” of the side Stores, Watson, 562 A.2d Inc. v. 317 Md.

Safeway (1989), however, Maryland stands light sheds where some from their involuntary parties oh the exclusion issue dispute, a compensation trials. In that worker’s Safe- representative its way, designate corporation, sought retained adjuster employed by company Safeway claims ad- The claims adjust compensation its worker’s claims. testify Safeway, for also had investi- juster, who was slated to at A.2d 1243. that the gated Ruling claim. Id. same adjuster privileges claims was “not entitled be,” trial of a would court ex- representative defendant dire, voir except cluded him from the courtroom after 179-80, 562 at 1243. when he Id at A.2d testified. interpretation Mary- At was the Safeway issue Stores 2-513, which provided: land Rule testimony begins made party “On motion of before parties than be ex- court shall order that witnesses other may and it do testifying, cluded from the courtroom before any party on motion made after so on its own initiative or may the exclusion begins. The court continue testimony testimony party of that witness if a following witness may give the witness be recalled to further indicates that A not a testimony. person may that is natural courtroom, to in the even designate representative remain An though representative may expert be a witness. opinion testimony witness who is to render an based on given during at the trial shall be to remain that permitted testimony.” 179,

317 Md. at 562 A.2d at 1243. We saw the issue turn what, resolving into two if nexus was questions: any, required representative designated “party between the and the that is further, not a natural trial person,” and whether the court had discretion to disapprove designation party made? Rule, concluded, reviewing history After we “The language history of Rule 2-513 make clear that a party person very that is not a natural has broad latitude in the excluded, selection of a when are representative witnesses subject the exercise of this is not to the discretion judge.” trial Id. at 562 A.2d 1245. Relevant to this latter point, explained judge we further that “the trial has witnesses, inherent authority parties, specta- remove circumstances, tors under certain where that action is neces- sary to preserve orderly proceed- decorum or to continue the court, ings of the and a of a designated representative party exempt from the of that operation authority.” 317 Md. at Thus, 184 n. 562 A.2d at 1245 n. 4. we determined trial court in excluding Safeway’s designated erred represen- tative from the courtroom.

The Court next considered whether the error was revers- ible. argued The claimant that the was on Safeway burden prove both the error and the prejudice emanating from it. hand, Safeway, on the acknowledging accuracy other rule, the claimant’s statement of the general argued that where a party important right is denied an that is very likely prejudicial to it prejudice and actual is difficult to prove, burden “party advantaged by should be the erroneous disqualification prove disqualification did not influ- ence the outcome of the litigation.” 317 Md. at 562 A.2d at 1245. We concluded that it is appropriate presume its party, of a or wrongful exclusion from the prejudice to opine: Id. went on from a trial. We representative, judges understand attorneys trial “Experienced jury in a defendant ‘humanizing’ corporate a importance have a Moreover, to be to present a is entitled party trial. evaluating purposes for proceedings of the firsthand view or for settle- exigencies constantly changing prospects that must be in tactical decisions ment, participate and to Finally, in the course of a trial. made, quickly, sometimes of the at deprived presence Safeway attorney in the case. Whether investigator principal side of the necessary mounting up these facts we consider consider them Safeway, simply by proof prejudice is prejudice appropriate determining presumption that a The claimant has is the same. in this the result must be and the result presumption, proof overcome the a trial.” new at 1246. 562 A.2d

Id. action, no Maryland courts have Therefore, rules by albeit made representatives choice of with the to interfere discretion Indeed, they may persons. non-natural who are by parties only pre- “to representatives designated such party exclude orderly proceedings continue the or to serve decorum trial of such Thus, presence to affect the ability their court.” quite limited. parties the resolution of the analysis informs Safeway Stores this it demonstrates because presents this case

question a courts to interfere with to the trial permit reluctance Court’s Certainly, trial. to whether to attend decision as party’s civil designated representative may if not exclude a trial that will natural even one person, that is a non party sequestration is a order trial when there testify at the must exist a similar restriction effect, reasoning, by parity are parties to exclude who power the court’s respect involuntarily exclude Permitting the court persons. natural that party’s on the basis of person is a natural who the court more give condition is to and mental appearance natural than it authority parties persons to exclude who are respect parties persons. has with that are natural non Indeed, witness, emanating allowing from who prejudice order, ordinarily sequestration would be excluded testimony remain in the courtroom and to hear the of other than that caused testifying may greater witnesses before party’s appearance, proper a disabled at least with instruc- sure, underlying tion of the To be of the rationale jury. part designate a non natural to permitting person the rule someone represent party to it at trial is to allow that to provide and, during logically, assistance to its counsel the trial party makes sense for the to so use the There representative. nothing requires party designate is that on that basis Stores, and, indeed, Safeway under the court cannot as inquire designation, to the basis for the which need not even be employees designating party. confined to the I Applying Safeway analysis, agree Stores with the Oneok, approach adopted by Cary v. In that supra. indicated, rejected proposition party Court that a and, solely appearance could be excluded on the basis of a acknowledging party’s right voluntarily to waive presence, permitted involuntary party “only exclusion of a in the case extreme circumstances.” 940 P.2d at 204. In Safeway Stores, the exception was stated terms of deco- preserving rum continuing orderly of the court. proceedings I Although differently, stated believe the excep- articulated that, tions I comparable. Accordingly, are would hold absent waiver, voluntary party may not be from his or excluded her trial “to except preserve decorum or to continue the Stores, orderly proceedings of the court.” Safeway 317 Md. at 184, 562 A.2d at 1245.

I persuaded by am not permit- Helminski and those cases ting parties the exclusion of who are unable aid counsel or proceedings understand the and whose physical appearance is prejudicial determined to be to the party. other Helminski recognizes category presence cases which the mere of a party prevent would jury reaching from an unbiased case falls into that particular

verdict. The decision whether court. At of the trial of cases is left to the discretion category time, juror acknowledges the Helminski the same juror prejudice to establish alone is insufficient sympathy court’s instructions and abide follow the jurors generally only on the facts. Where oath to decide cases by their mentally handi- is is appearance prejudicial whose him or her unable much as to render or at least not so capped, counsel, involuntary or assist proceedings comprehend jurors will an the instructions option; exclusion is not instructions will party, “cautionary the other protect suffice to in a fair trial.” Id. of the defendant protect the interests hand, if to an party, other addition 218. On the from a mental condition suffers unsightly appearance, understanding proceedings him from or her prevents are counsel, required; jury instructions exclusion assisting the other the one protect party. deemed insufficient oath, in the by its while case, jury is trusted to abide the for the is the other, only the basis distinction it is not. And party. mental condition of the contrary, protestations court’s

Despite the Helminski on the party the exclusion of a Helminski court sanctions the in those cases where appearance party’s physical basis of that and cannot proceedings the does not understand party con- Supreme I the Oklahoma Court’s assist counsel. share drawing of such distinction: cern about cases, a re-examination of those may “There need to be Helminski, that a disfigured which hold including attorney cannot excluded if he or she aid may be decided These cases were comprehend proceedings. Act, of the Americans with Disabilities before the enactment discrimination on the basis specifically prohibits a law that § 42 12132 handicap. or mental Title U.S.C. physical of a (1990). and were reasoning Those cases which followed this after the ADA’s enactment did address decided issue.” omitted)21 (internal (citing n. footnotes 940 P.2d at 205

Cary, (E.D.Mo.1991) County, F.Supp. Kroll v. St. Charles surroundings of a physical ADA (noting applies that the Guice, courthouse)); 68 F.3d 460 Livingston see also federal (4th Cir.1995) from was not immune (holding judge that a accommodating physi- the ADA not liability violating for access to a special who needed cally handicapped person trial). during restroom for lack of a basis principled

I also am concerned case, instructions, in the one trusting jury, proper under If, case of a jury the other. trusting and not or assist proceedings who is able to understand the party counsel, the other prejudices party, but whose appearance it party, is jury protect instructions are sufficient would not suffice why to see those same instructions difficult but who is party appearance, in the case of a with similar proceedings. Un- comprehend unable to assist counsel for a analysis, possible party the Helminski because is der without appreciation proceedings to have a minimal counsel, persons it is conceivable that two being able to assist conditions, but different mental appearances, with identical i.e. one excluded and the other differently, will be treated allowed to remain in the courtroom. this under Helminski, if ability it were shown that Darwin had some him, he would not have going understand what was around disruptive. been excludable unless he was Further, that a stereotypical assumption party’s “a disabili- Mason, ty prejudice jury,” will see N.Y.S.2d at an from the trial. ground excluding insufficient recognition its of the distinction to be made between Despite juror sympathy juror prejudice, approach the Helminski assumption grounds elevation of a to permits stereotypical excluding party providing any for without involuntarily sufficient, instructed, It doing rational basis for so. is we are Continuing, opined were to the court that even if it conclude that 21. preferable approach, Helminski standard survived the ADAand was the it still would not have been satisfied in the context of the case. 656 viewing the that the party

that the trial court decides after juror prejudice. party’s appearance will result jurors which process by prospective voir dire is the Finally, for whether cause exists their are examined determine State, 435, 431, v. 341 Md. 671 A.2d Boyd See disqualification. (1996). is, moreover, 33, whereby It the mechanism 35 v. jury given Dingle fair is substance. impartial to a (2000). 10, 819, State, 1, juror 823 A who 361 Md. A.2d 759 party for a unduly by sympathy would be influenced promise able to abide his or her to decide point being in accordance with the court’s solely the case on the facts and and, thus, juror is impartial instructions is hot a fair and judge the trial subject being Although stricken for cause. process, jury focal of the voir dire whether the is point is the case on the facts is not a decision to be able to decide the Consequently, court in a vacuum. neither the made remedy, nor the nature of the was timing inquiry, Thus, in Helminski. rather than the appropriately addressed to be fair and making inquiry jury’s ability court’s into the time jury impaneled, proper after the has been impartial remedy inquire jury impaneled was before the jury, was exclusion from the not exclusion of the partiality party from the trial. sure, correctly recognizes

To Helminski that there quite juror juror prejudice. sympathy difference between jury sympathy the likelihood of is not the differently, Stated juror’s sympathetic feeling “A toward equivalent prejudice. conclusion that necessarily does not lead to the the law to reach verdict based on jury disregard will Cary, alone.” 940 P.2d at 205. This view is consis sympathy touching Special Appeals’ tent with the Court decisions Wood, 1, 17, Md.App. Ford Motor subject. See Co. denied, 1315, 1322, cert. 349 Md. 709 A.2d 139 703 A.2d State, 573, 584, (1998); Md.App. Fowlkes v. 701 A.2d (1998). denied, (1997), cert. 348 Md. A.2d cases, appellate jury both the intermediate court noted that “a Wood, 119 expected judge sympathy.” is not a case without 1322; Fowlkes, Md.App. at 17, 703 A.2d at Md.App. at 584, 701 A.2d at 868. Wood, juror lung a with cancer was whether question

In Fowlkes, In the contro- for cause. should have been stricken court abused its discretion over whether the versy was In question sympathy. a voir dire refusing propound to relied, Fowlkes, on which observed: regard, Wood prejudice to ferret out bias or of voir dire is purpose “The into the courtroom that would entry conceived to prior deciding the case juror fairly impartially a from prevent in the courtroom. The presented based on the evidence rightfully presumed have appellate courts of this State racial, ethnic, gender bias cannot render person a with but, view, sympathy verdict our impartial such a fair and respect to category. question, falls into a different bias, exists. If determined to specific a is whether bias if exist, juror even judge may prospective a trial excuse In to be able to render a fair verdict. person purports contrast, people experience sympathy, we normal to expect person in that instance is whether the will question and the words, In jury other is unduly swayed sympathy. be it expected prejudice; to decide case without bias to expected sympathy expected to do so without but is swayed follow the court’s instruction that it not be unduly cases, it. In difficult for a prospective most would be juror degree feelings sympathy to know the which In presented. every would be aroused until the evidence is may feelings there are factors that evoke of sympa- thy.” 584-85, 701 A.2d at 868. Md.App.

Here, voluntarily Darwin Green did not waive the present preserve at trial. Nor was he excluded “to deco- orderly rum or to of the court” or proceedings continue the in, in, because or was engaged likely engage disruptive he Rather, appear- conduct. Darwin was excluded because of his inability proceed- ance and because of his to understand the Darwin, trial court excluding counsel. ings or to assist stated: moving party, they is to the persuasion

“The burden in this instance. The Defendant have carried that burden must handicapped plaintiff establish who seeks exclude prevent of the would and substan- presence that the jury’s performance. impairment the tially impair jury that the instructions great must be so prejudice that likely prejudice. not correct would any the Court is convinced that having tape, And viewed the Plaintiff in a video would leave viewing person of the other- emotionally in a to be struck and any party position for the Plaintiff.”22 feeling sympathy wise jury would be overly The court was sensitive and, point, to the more to the without sympathetic petitioner video, concluding viewing of the any except basis for so unduly swayed by would be jury concluded that The record prejudice respondents. sympathy it any Certainly, basis for that conclusion. does reflect jurors voir on the effect appear does not that the were dire courtroom would have or wheth- presence that Darwin’s could, any sympathetic feelings, decide the they despite er short, law, In on the facts and the as instructed. solely case court to absolutely there is no basis this record solely not “decide the case on the jury conclude that the could Helminski, it.” 766 F.2d at 217. evidence before court, Special Appeals, Neither the trial nor the Court of majority analyses nor has articulated reasons or even of how the would evoke more than the plaintiffs presence feelings of And we have not been told expected sympathy. how his in the courtroom for the limited time the presence jury incapable wished would render of re- petitioners turning solely a verdict decided the facts. jury phrased, appears only determined that the

22. As that the court likely emotionally sympathetic, preju- be struck and rather than would petitioners. diced in favor of the conclusion, is, point amicus petitioners there as the out, namely, to this significance another dimension and to the dis- message majority adopts the rule the sends to a argue “any party and amicus petitioners abled. The constitutional civil action has both a federal and state serves the “litigant’s presence at trial” and that a present counsel, fact-finding, pre- truthful functions assistance evidence, proceed- assurance of fairness of sentation direct ings public’s perception and to assure the fairness Exclusion, hand, on the other causes harm to proceedings. Fur- system and our court as a whole.” party, society thermore, continue, disabled, they the case of the “[i]n message litigants exclusion broadcasts the that disabled do rights [by implying] not have the same as the rest of us disabled, legal lower status for the which alive unnec- keeps essary stereotypes prejudices against and unwarranted Noting promise the disabled.” of the enactment of the (the ADA), Americans Act With Disabilities U.S.C. (1994), §§ guarantee 12101-12213 to the disabled of equal and, thus, opportunity, full access participation equal recognition “disability is a natural of the human ex- part 6000(a)(2) perience,” (1994), § petitioners U.S.C. amicus lament that “exclusion of a from trial based disability and, equivalent consequently, discrimination” submit that “a trial court does not have discretion to remove a litigant’s rights, irrespective basic litigant’s physical limitations, and mental an overriding objective, unless neces- sary compelling, narrowly tailored meet believe, objective court’s exists.” I do not Ias have dis- cussed, that this Court’s holding responds overriding, an necessary, objective and compelling consistent with the Court’s purpose. mandate and

I would hold that the trial court in excluding erred Darwin liability Green from the trial. phase Judge Rodowsky has authorized me to state that he concurs with the III expressed dissenting opinion. views Part of this

Case Details

Case Name: Green v. North Arundel Hospital Association, Inc.

Court Name: Court of Appeals of Maryland

Date Published: Nov 27, 2001

Citation: 785 A.2d 361

Docket Number: 88, Sept. Term, 1999

Court Abbreviation: Md.