MAINE SUPREME JUDICIAL COURT                                       Reporter of Decisions
Decision: 2014 ME 77
Docket:   And-13-320
Argued:   April 7, 2014
Decided:  June 10, 2014

Panel:       SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, and JABAR, JJ.


                              WENDELL STROUT JR.

                                          v.

                      CENTRAL MAINE MEDICAL CENTER

SILVER, J.

         [¶1] Central Maine Medical Center (CMMC) appeals from a judgment on a

jury verdict entered in the Superior Court (Androscoggin County, Clifford, J.) in

favor of Wendell Strout Jr., in his medical malpractice action against CMMC.

CMMC argues that the court erred by admitting in evidence one sentence of a

letter from CMMC’s president to Strout because (1) the entire letter was

inadmissible pursuant to 24 M.R.S. § 2907(2) (2013), (2) the statement was part of

an offer to compromise, and (3) the statement’s probative value was substantially

outweighed by the danger of unfair prejudice. We affirm the judgment.
2

                                       I. BACKGROUND

        [¶2] The following facts are taken from witness depositions included in the

record, 1 and we view them in the light most favorable to the jury’s verdict.

See Hickson v. Vescom Corp., 2014 ME 27, ¶ 2, 87 A.3d 704. In April 2009,

Strout sought treatment for abdominal pain at the CMMC emergency room.

A CAT scan revealed a large lesion on Strout’s liver. Dr. Ian Reight, a surgeon at

CMMC, evaluated the CAT scan and determined that Strout was most likely

suffering from a cancer of hepatic, biliary, or pancreatic origin.

        [¶3]     Several days later, Strout, accompanied by his wife, went to

Dr. Reight’s office for a follow-up visit. Dr. Reight telephoned the pathologist

who was in charge of testing a tissue sample taken from the lesion.                                 The

pathologist informed Dr. Reight that he believed the lesion to be of hepatic or

pancreatic origin and that he was sending it for additional testing; however, he also

informed Dr. Reight that he needed more tissue to complete the assessment.

        [¶4] Dr. Reight then told Strout that, although he was still waiting for the

final pathology results, he believed that Strout may be suffering from either hepatic

or pancreatic cancer. Dr. Reight informed Strout that, if this were the case, the

cancer would be inoperable due to the size and location of the lesion. Dr. Reight
    1
      Because this appeal concerns only the narrow issue of the admissibility of a portion of the letter,
CMMC did not provide a trial transcript as part of the record on appeal. But see Greaton v. Greaton,
2012 ME 17, ¶ 6, 36 A.3d 913 (“Merely providing documents that were admitted at trial will rarely
suffice to establish an adequate record for our review.”).
                                                                                    3

further informed Strout that even with chemotherapy, the average life expectancy

of patients with each of these cancers was less than one year, and that Strout’s life

may be measured in months.

        [¶5] Several weeks later, the test of Strout’s tissue samples revealed that he

did not suffer from hepatic or pancreatic cancer, but that he had B-cell

non-Hodgkins lymphoma, which has a five-year survival rate of eighty-five to

ninety percent. Strout sent a complaint about Dr. Reight to Laird Covey, CMMC’s

president, in October 2009.

        [¶6]     Covey had overall responsibility for all aspects of operations at

CMMC, including handling patient complaints, during this time. Covey and his

staff followed CMMC’s procedure for investigating complaints, and once that

review was completed Covey signed a letter to Strout2 addressing the complaint

about Dr. Reight. The letter, dated December 28, 2009, stated, in relevant part:

        The President of the Central Maine Medical Group, Dr. Focht, was
        involved in this review as he bears responsibility for the care provided
        by all the doctors who are a part of the Central Maine Medical Family.
        This has been addressed directly with Dr. Reight by Dr. Focht and has
        also been brought to the attention of the Medical Director for our
        surgical practice, Dr. Gammaitoni. Dr. [Reight] was saddened to
        learn that this was so difficult for you and your family. As he shared
        his clinical thinking at the time it was very apparent to Dr. Focht that
        Dr. [Reight] truly did feel that you were dealing with a very
        aggressive Stage 4 cancer with a very low survival rate. He in no way
        wanted to harm either you or your wife but wanted you to have a full

  2
      The letter was drafted by one of Covey’s staff members.
4

      understanding of what he thought he would be helping you to deal
      with. The level of his concern can be seen in the fact that he shared
      his personal cell phone number with you. That being said, he realizes
      now that prior to sharing his clinical impressions with you, he needed
      to wait for the results of the biopsy to confirm what the cancer was.
      Dr. [Reight] is a very dedicated, caring provider; one of the ways to
      learn and grow as care providers is to have feedback, both positive
      and negative from the patients we serve. I know that he will also be
      sharing the wisdom he has gained from this experience with his
      colleagues in the practice.

      I have had Ms. Maurer work with Patient Financial Services to
      identify any outstanding balances related to care provided by Dr.
      [Reight] and have authorized that these balances as well as the
      balance for Dr. Bisbal’s care be written off as a gesture of
      acknowledgement for the concern you brought to our attention.

      [¶7] Strout filed a notice of claim against Dr. Reight in February 2011. The

parties agreed to waive the prelitigation panel hearing, and in March 2012 Strout

filed a complaint naming Dr. Reight as the defendant and seeking damages for

emotional distress, lost income, and loss of enjoyment of life. By agreement of the

parties, CMMC replaced Dr. Reight as the only named defendant.

      [¶8] CMMC moved in limine to exclude from evidence Covey’s letter to

Strout, arguing that the entire letter was an expression of sympathy or benevolence,

which must be excluded pursuant to 24 M.R.S. § 2907(2). CMMC also argued that

the letter was inadmissible pursuant to M.R. Evid. 408(a) because it constituted an
                                                                                                 5

offer to compromise, and that it should be excluded pursuant to M.R. Evid. 403.3

At trial, the court admitted in evidence a redacted version of the letter. The body

of the redacted version of the letter read, in its entirety: “That being said, he

[Dr. Reight] realizes now that prior to sharing his clinical impressions with you, he

needed to wait for the results of the biopsy to confirm what the cancer was.”

         [¶9] Following the trial, the jury returned a $200,000 verdict in Strout’s

favor. The court entered judgment on the verdict, and CMMC filed this appeal.

                                      II. DISCUSSION

A.       The “Apology Statute”

         [¶10] “The interpretation of a statute is a question of law, which we review

de novo.” Jones v. Cost Mgmt., Inc., 2014 ME 41, ¶ 12, 88 A.3d 147 (quotation

marks omitted). “We will construe a statute based on its plain meaning in the

context of the statutory scheme, and only if the statute is ambiguous will we look

to extrinsic indicia of legislative intent such as relevant legislative history.” Id.

(quotation marks omitted). “Statutes are ambiguous only if reasonably susceptible

to different interpretations. . . .” Town of China v. Althenn, 2013 ME 107, ¶ 6,

82 A.3d 835.




     3
     Additionally, CMMC argued that the letter should be excluded pursuant to M.R. Evid. 409, which
addresses payment of medical expenses. CMMC has not raised this argument on appeal.
6

      [¶11] Title 24 M.R.S. § 2907(2) provides, in relevant part:

             In any civil action for professional negligence . . . any
      statement, affirmation, gesture or conduct expressing apology,
      sympathy, commiseration, condolence, compassion or a general sense
      of benevolence that is made by a health care practitioner or health care
      provider or an employee of a health care practitioner or health care
      provider to the alleged victim, a relative of the alleged victim or a
      representative of the alleged victim and that relates to the discomfort,
      pain, suffering, injury or death of the alleged victim as the result of
      the unanticipated outcome is inadmissible as evidence of an admission
      of liability or as evidence of an admission against interest. Nothing in
      this section prohibits the admissibility of a statement of fault.

      [¶12] CMMC asserts that important policy considerations underlie Maine’s

apology statute and similar statutes in other jurisdictions, and that these policy

considerations justify characterizing the statement contained in Covey’s letter as a

statement of sympathy or benevolence rather than as an admission of fault.

However, the statute, by its plain language, makes a distinction between statements

of fault and expressions of apology or benevolence. Nothing in the language of the

statute suggests that statements of fault are inadmissible if they are accompanied

by expressions of apology or benevolence; on the contrary, it explicitly provides

that “[n]othing in this section prohibits the admissibility of a statement of fault.”

Id. Although the Legislature could have decided otherwise, it was clear in its

policy decision: the placement of an admission of fault in an apology letter does

not prevent that admission from being presented to the jury. Because the statutory

language is not ambiguous, we need not examine the legislative history to aid us in
                                                                                   7

interpreting the statute. See Jones, 2014 ME 41, ¶ 12, 88 A.3d 147. Instead, we

give the language of the statute its plain meaning, see id., and conclude that

statements of fault are admissible, even when coupled with other statements that

may be inadmissible. The court committed no error by admitting the portion of the

letter that contained an admission of fault.

B.    Offer to Compromise

      [¶13] CMMC argues that, because part of the letter included a reference to

the hospital “writing off” a portion of Strout’s outstanding balance, the letter

constituted an offer to compromise.

      [¶14] M.R. Evid. 408(a) provides, in relevant part, “Evidence of furnishing

or offering or promising to furnish, or accepting or offering or promising to accept,

a valuable consideration in compromise or attempting to compromise a claim is not

admissible to prove liability for, invalidity of, or amount of the claim or any other

claim.” “The determination of whether the statement was a part of compromise

negotiations is exclusively for the court under Rule 104.” Greenstreet v. Brown,

623 A.2d 1270, 1272 (Me. 1993) (quotation marks omitted).             Although we

liberally construe the phrase “compromise negotiations,” “[n]either an offer to

compromise nor compromise negotiations may take place . . . in the absence of a

dispute.” Id. Where there is “no evidence that a dispute existed about the validity
8

of a claim or the amount claimed at the time of [the] admission, the trial court

properly admit[s the] statement in evidence.” Id.

      [¶15] Covey sent the letter to Strout in December 2009, long before Strout

filed his notice of claim against CMMC in February 2011. Because there is no

evidence of any disputed claim in existence at the time of the admission, the court

properly concluded that the statements contained in the letter were not made as part

of a settlement negotiation or mediation. See id.

C.    Unfair Prejudice

      [¶16] Finally, CMMC argues that permitting the jury to see one sentence of

the letter out of context resulted in unfair prejudice and was misleading. We

review a court’s decision whether to admit evidence pursuant to Rule 403 “to

determine if it exceeds the bounds of the court’s discretion.” State v. Lipham,

2006 ME 137, ¶ 9, 910 A.2d 388 (quotation marks omitted). However, “in an

appeal without a transcript, we will assume that the record supports the trial court’s

. . . discretionary rulings on evidence, procedure, and remedies made during the

course of the proceeding.” Clark v. Heald, 2009 ME 111, ¶ 2, 983 A.2d 406; see

also Springer v. Springer, 2009 ME 118, ¶ 2, 984 A.2d 828 (“When a party

challenges a court’s . . . exercise of discretion and a recording of the proceeding

exists, an adequate appellate record must include a transcript of testimony taken at
                                                                                     9

the relevant proceeding or a [trial-court-approved] statement of the case agreed

upon by the parties.”); M.R. App. P. 5(b)(2).

        [¶17] Here, CMMC raised its objections to the admission of the letter

during a pre-trial conference in chambers. Although CMMC has provided us with

a transcript of that discussion, it has not provided us with a transcript of the trial.

Accordingly, we are unable to assess the extent to which the letter may have been

used to improperly influence the jury, if at all.

        The entry is:

                           Judgment affirmed.



On the briefs:

        Christopher D. Nyhan, Esq., and Elizabeth A. Campbell, Esq., Preti
        Flaherty, LLP, Portland, for appellant Central Maine Medical Center

        Scott J. Lynch, Esq., Hornblower, Lynch, Rabasco & Van Dyke, P.A.,
        Lewiston, for appellee Wendell Strout, Jr.


At oral argument:

        Christopher D. Nyhan, Esq., for appellant Central Maine Medical Center

        Scott J. Lynch, Esq., for appellee Wendell Stout, Jr.



Androscoggin County Superior Court docket number CV-2011-22
FOR CLERK REFERENCE ONLY
