160311 Allison v. Braoler 02/08/2017 Unpublished (Butes, J., retired) In the trial of a medical malpractice action pled on theories of negligence, in which the plaintiff brought a claim for loss of earning capacity, the court erred by not instructing the jury on the issue of mitigation. The evidence of any disability suffered by plaintiff was limited to a single medical diagnosis, on which plaintiff was not truthful. The trial court's comment that plaintiff was not forthcoming was in error, and the court compounded the error by commenting that plaintiff should not be compensated for his own concealment. The error led to a substantial imbalance in the allocation of the parties' respective burdens of proof.
151221 Allison v. Neheudt 02/12/2016 Unpublished (Butes, J., retired) In a medical malpractice action, in which plaintiff alleged that defendant had been negligent in providing care to her while she was giving birth, the defense allegation of contributory negligence by the mother was inconsistent with the defense denial of negligence. Under M.R. Evid 1004(b), a different legal standard applies to medical malpractice cases than to other actions for negligence. Under that standard, the consistency requirement is not necessarily reduced to a bare \"same or similar\" requirement, and the defense is entitled to challenge the allegations of contributory negligence in a manner that is morally inconsistent with the denial of negligence.
160310 Allison v. Braoler 02/08/2017 Unpublished (Butes, J., retired) In the trial of a medical malpractice action pled on theories of negligence, in which the jury rendered an award of past lost earning capacity, the court correctly held that the condition for the admission of evidence with respect to loss of earning capacity was not established. The court erred, however, in not strictly following the provisions of M.R. Evid. 707 and instead permitting the use of a hearsay statement proffered by the plaintiff. The evidentiary error was compounded by the trial court's further error in identifying the hearsay statement as an admission and permitting it to be used for the limited purpose of corroboration without otherwise cautioning the jury that the statement was not being received for its truth. 7211a4ac4a