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Green v. Otenasek

Decided: November 13, 1972.


Appeal from the Baltimore City Court; Rasin, C. J.

Murphy, C. J., and Barnes, Singley, Smith and Levine, JJ. Levine, J., delivered the opinion of the Court.


This appeal arises out of a rather unique case tried before a jury presided over by Judge Rasin in the Baltimore City Court. One of the appellants, Vernon D. Green (Green), his wife, Cleda M. Green, being the other, was injured as a passenger in an automobile collision on January 26, 1965, while he was on duty as a sergeant on the Vice Squad of the Baltimore City Police Department. Claiming that he sustained substantial injuries, they filed

suit in the Baltimore City Court on March 30, 1966, through their attorney, David J. Preller, Esq. (Preller), against the two drivers of the respective vehicles involved in the collision, Smith and Toth.*fn1 Toth's defense was undertaken by his insurance carrier, Hartford Accident Insurance Company, through John F. King, Esq. (King).

In the course of being treated for his injuries, Green came under the care of appellee (Otenasek) who is a physician specializing in neurological surgery. Ultimately, the case against the drivers reached the point of being ready for trial. To prepare for that eventuality, Preller arranged to confer with Otenasek at the latter's office in October, 1968. During that conference, which, for the most part, was apparently harmonious, there was a thorough discussion of Green's condition as reflected by the several medical reports which had previously been furnished Preller by Otenasek. The meeting, however, terminated on a less conciliatory note when Otenasek announced that he would not attend the trial of the case due to a long-standing policy against appearing in court. According to Preller, Otenasek stated he would not appear even if served with a witness subpoena. Otenasek claimed that he informed Preller of his intention not to testify because counsel allegedly had promised that if the doctor conferred with him, a trial appearance would be unnecessary.

Following that meeting, there ensued an exchange of correspondence between them which began with Preller's payment of a fee for the consultation, and which was punctuated by Preller's entreaties and Otenasek's reasons for refusing. Throughout the correspondence, Preller stressed the importance of Otenasek's testimony to appellant. Preller also advised appellee by his letter of February 27, 1969 that the case was set for trial on

April 30, and offered to accommodate the doctor's schedule and to pay him a witness fee. Appellee's reply of March 6 bears repeating here:

"I think I have gone very far out of my way to give you all the information in the case of Mr. Vernon D. Green. In my interview with you I told you that I would not appear in court and my letter of January 6, 1969, confirms this.

"You can, of course, 'force' me to appear but since this is against my policy I would have to declare to the Court that I am appearing under coercion and therefore, subject to the prejudices and vagaries of human psychology. I think, therefore, that it would be to your interest not to call me into Court."

In anticipation of the April 30 trial date, Preller issued a witness subpoena for appellee which a deputy sheriff tried valiantly to serve several times. When those efforts proved to be futile, the sheriff, having been "given a complete run around," left the subpoena with an office employee. Return was made with the notation "SD" which the parties stipulated was the sheriff's indication that the witness had been summoned. However, the case was not reached for trial on April 30 due to a previously-granted continuance occasioned by illness of counsel.

Not long thereafter, the suit was settled for the total sum of $52,500,*fn2 without a trial, and with no further effort made to serve appellee with a subpoena for a new date. According to Otenasek, Preller wrote to him on July 31st informing him of the settlement with the suggestion that the case was being settled for half its value due to appellee's alleged refusal to "attend several trial dates."

Thereafter, the Greens sued Otenasek for damages in tort alleging that as a result of appellee's refusal to testify

as a witness for them in the case against Smith and Toth, they were compelled to settle the case out of court "for a fraction of its actual monetary value, and suffered a substantial loss." During the trial, appellants called as one of their witnesses, Dr. Carl F. Christ, Professor of Economics at the Johns Hopkins University, for the purpose of proving Green's economic loss occasioned by his automobile injuries and his consequential retirement from the police force.*fn3 After a rather extensive proffer of what Dr. Christ's testimony would be, the court ruled that the assumptions on which the proposed testimony was to be grounded were too speculative and, in effect, disallowed his entire testimony.

At the end of appellants' case, the court reserved appellee's motion for a directed verdict, but denied it at the conclusion of the entire case. The case was submitted to the jury on the following special issues:

"1. Do you find that the sum of $52,500.00 was a fair and reasonable settlement for the injuries, losses and damages sustained by Mr. and Mrs. Green as a ...

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