Carol Cutting v. Down East Orthopedic Associates, P.A.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2025 ME 66
Docket: Pen-23-410
Argued: November 13, 2024
Decided: July 24, 2025

Panel: STANFILL, C.J., and MEAD, HORTON, CONNORS, LAWRENCE, and DOUGLAS, JJ.

CAROL CUTTING

v.

DOWN EAST ORTHOPEDIC ASSOCIATES, P.A.

STANFILL, C.J.

[¶1] This is the second appeal in a medical malpractice action in which

Carol Cutting sued Down East Orthopedic Associates, P.A., based on events that

occurred in 2013. See Cutting v. Down E. Orthopedic Assocs., P.A., 2021 ME 1,

244 A.3d 226. Cutting now appeals from a judgment entered by the Superior

Court (Penobscot County, Mallonee, J.) on a jury’s finding that Down East was

not negligent. Cutting challenges the court’s admission in evidence at trial of a

prelitigation screening panel’s finding against her. Cutting also challenges the

court’s entry of a judgment as a matter of law on her claim for punitive

damages.1 We affirm the judgment.

1 Cutting argues in addition that the judgment must be vacated because many of the sidebar
discussions during the trial were not recorded or transcribed, and she challenges the trial court’s
limitation of her cross-examination of Down East’s expert witness. We are not persuaded by these
2

I. BACKGROUND

[¶2] On November 2, 2016, Cutting commenced a medical malpractice

screening panel proceeding under the Maine Health Security Act (MHSA) by

filing a notice of claim against Down East in the Superior Court. See 24 M.R.S.

§§ 2851-2859 (2025);2 M.R. Civ. P. 80M(b)(1). The claim was based on the

conduct of a Down East employee, a doctor who had treated Cutting’s shoulder.

The screening panel proceedings resulted in a unanimous finding by the panel

that the doctor’s alleged conduct did not “constitute a deviation from the

applicable standard of care.” See 24 M.R.S. § 2855; M.R. Civ. P. 80M(g)(9).

[¶3] On May 30, 2019, about a year after she received notice of the panel

decision, Cutting filed a three-count complaint against Down East.3 Cutting

alleged that on June 20, 2013, she went to Down East to address right shoulder

arguments. See State v. Milliken, 2010 ME 1, ¶¶ 13-17, 985 A.2d 1152; Colony Cadillac & Oldsmobile,
Inc. v. Yerdon, 505 A.2d 98, 99-100 (Me. 1986); M.R. Evid. 403, 611(a).

2 In 2019, the Revisor of Statutes made nonsubstantive corrections and administrative changes

to some of the MHSA’s provisions concerning prelitigation screening panels. R.R. 2019, ch. 2, §§ B-82
to B-85, correcting 24 M.R.S §§ 2852(3), (5), 2853(2), (6), explanation. These alterations do not affect
our analysis in this appeal.

3 While the notice of claim was pending in the Superior Court, Cutting had also filed a complaint
in federal court, and she filed a second, separate complaint in federal court in June 2018. See Cutting
v. Down E. Orthopedic Assocs., P.A., 2021 ME 1, ¶¶ 4-5, 244 A.3d 226. One federal complaint alleged
violations of the Americans with Disabilities Act and the Maine Human Rights Act, and the other
alleged medical malpractice. See id. In May 2019, the federal court (1) entered a summary judgment
in Down East’s favor on the discrimination claims and (2) dismissed, for lack of subject matter
jurisdiction, the medical malpractice claim. Id. ¶¶ 6-7. Cutting then filed this complaint in this state
court action.
3

pain. She informed the doctor that she had Tourette’s syndrome and

experienced motor tics that included “occasional arm movements and

pointing.” She alleged that during the visit, the doctor moved across the room

to distance himself because of Cutting’s Tourette’s, stating, “I don’t want you to

hit me.” Cutting further alleged that, when obtaining her consent prior to

surgery, providers at Down East did not discuss with her how her Tourette’s

might affect her surgery. She specifically claimed that providers did not tell her

that if the doctor found a rotator cuff tear, he would not repair it because the

surgery would be “guaranteed to fail” due to the motor tics caused by her

Tourette’s. On November 13, 2013, the doctor performed a debridement of

Cutting’s shoulder area but did not repair the rotator cuff after discovering a

tear. Cutting continued to experience shoulder pain and sought treatment from

different providers; she ultimately underwent surgery to repair the rotator cuff

in 2015 and other procedures in 2018.

[¶4] Cutting asserted claims for failure to obtain informed consent as

discussed above (Count 1) and medical negligence based on her allegation that

the doctor treated her “in an openly hostile, discriminatory, biased, and

humiliating manner” (Count 2), and she sought damages including punitive

damages for both claims. Later in the proceedings, she also claimed that the
4

doctor falsified her medical record after the procedure to suggest that a more

thorough informed consent discussion had occurred. In Count 3, Cutting sought

a declaratory judgment, asserting that admission of the prelitigation screening

panel’s finding at trial would violate her due process rights. To support this

claim, Cutting alleged procedural, evidentiary, and substantive problems with

the screening panel proceedings.

[¶5] Down East moved to dismiss Cutting’s complaint, the court

(Anderson, J.) denied the motion, and Down East appealed. We dismissed the

appeal, concluding that no exception to the final judgment rule applied to

enable interlocutory review. Cutting, 2021 ME 1, ¶¶ 14-20, 244 A.3d 226. Next,

Down East moved for partial summary judgment. The court (Mallonee, J.)

granted that motion as to Cutting’s declaratory judgment claim (Count 3), but

it expressly left open the possibility that Cutting could move in limine to exclude

the panel finding from evidence.4

[¶6] Cutting filed such a motion in limine before the case proceeded to a

seven-day jury trial in late September and early October 2023. She argued,

among other things, that the panel chair had exhibited bias by stating (in the

context of a discussion about how long a panel hearing would take) that the

4 The court otherwise denied Down East’s motion for summary judgment.
5

case was about “just a shoulder” and that the panel had made various

prejudicial evidentiary rulings. She also argued that the panel had pre-judged

the case in Down East’s favor before the panel hearing by offering to decide the

case based only on the parties’ submissions, if the parties agreed, rather than

rescheduling the hearing after it was called off due to a snowstorm. The court

denied the motion in limine, and evidence of the panel’s finding that Down East

was not negligent was admitted during the trial.

[¶7] At the close of the evidence, Down East moved for a judgment as a

matter of law on Cutting’s punitive damages claim, arguing that no evidence

had been presented that could support it under the relevant legal standard. The

court granted Down East’s motion. The court determined that neither the

“allegedly very bad behavior in the exam room” nor the alleged failure to

diagnose a rotator cuff injury could rise to the level of malice, ill will, or

outrageousness required for the imposition of punitive damages. See, e.g.,

Tuttle v. Raymond, 494 A.2d 1353, 1361-63 (Me. 1985). The court also

concluded that even if the jury believed that the doctor had falsified Cutting’s

medical record after treating her, this conduct could not have caused the harm

Cutting alleged and therefore could not support an award of punitive damages.
6

Cutting moved for reconsideration of the court’s ruling, and the court, after

hearing arguments from the parties, denied that motion.

[¶8] When discussing jury instructions, Cutting requested that the court

provide “something outside of the typical [jury] instruction” that refers to the

prelitigation screening panel process as a “summary hearing,” and she

requested an instruction telling the jury that “a decision was made prior to the

[panel] hearing.” The court declined Cutting’s request and instructed the jury

as follows:

As a preliminary step in this case, a prelitigation screening
panel reached a unanimous finding. That panel process is merely a
preliminary procedural step through which malpractice claims
proceed. The panel members in this case were [two lawyers and a
doctor].

The panel conducted a summary hearing that was not bound
by the rules of evidence. That hearing was not a substitute for a full
trial, and it may or may not have included all the same evidence
presented at this trial. You are not bound by the panel findings. You
must reach your own conclusions based on the evidence presented
at this trial.

The panel proceedings are confidential, which means that
the parties may not present evidence about the panel proceedings,
and they may not introduce documents from the panel proceedings
except to state what you have just been told about the panel
process.
7

The court also instructed the jury to decide first whether Down East was

negligent and that it should not reach any determination about damages unless

it had found negligence.

[¶9] After deliberating, the jury determined that Down East was not

negligent, and the court entered a judgment for Down East. Cutting timely

appeals.

II. DISCUSSION

[¶10] We first address whether the trial court should have excluded the

panel finding from the trial evidence, and we then turn to whether the court

erred when it granted Down East’s motion for a judgment as a matter of law on

Cutting’s punitive damages claim.

A. Admission of Panel Finding

[¶11] Cutting argues that the trial court’s denial of her motion to exclude

the prelitigation screening panel’s finding from evidence amounts to a violation

of her constitutional right to a trial by jury and a violation of statutes and rules

that govern the screening panel process. She argues that because the panel

“decid[ed] the case against [her] before a hearing even occurred,” the panel

process was biased and deprived her of a meaningful opportunity to rebut

adverse evidence during the panel hearing.
8

[¶12] We review for an abuse of discretion the denial of a motion in

limine seeking to exclude findings by a medical malpractice screening panel.

See Est. of Nickerson v. Carter, 2014 ME 19, ¶ 12, 86 A.3d 658. To the extent that

constitutional, statutory, or rule interpretation is implicated, we apply de novo

review. See Torres v. Dep’t of Corr., 2016 ME 122, ¶ 13, 145 A.3d 1040; Smith v.

Hawthorne, 2006 ME 19, ¶ 18, 892 A.2d 433; Est. of Nickerson, 2014 ME 19,

¶¶ 12, 18-22, 86 A.3d 658.

[¶13] “In all civil suits, and in all controversies concerning property, the

parties shall have a right to a trial by jury.” Me. Const. art. I, § 20; see Irish v.

Gimbel, 1997 ME 50, ¶ 7, 691 A.2d 664 (Irish I). “[A] litigant’s right to a jury

trial, in general, means the right to have a determination made by the jury on

material questions of fact.” Irish I, 1997 ME 50, ¶ 8, 691 A.2d 664 (quotation

marks omitted).

[¶14] Under the MHSA, a medical malpractice screening panel must, “[a]t

the conclusion of the [parties’] presentations,” make a finding whether the

provider was negligent. 24 M.R.S. § 2855(1)(A). The panel is required to make

its findings solely “upon [the] evidence . . . presented at the hearing, the records

and any expert opinions provided by or sought by the panel or the parties.” Id.

§ 2854(1); see M.R. Civ. P. 80M(g)(9) (“The panel shall make its findings based
9

on the issues and evidence presented at the hearing.”); Est. of Nickerson,

2014 ME 19, ¶ 17, 86 A.3d 658 (explaining that these requirements protect

against “appointed panelists performing their own independent investigations

or deciding cases based on issues not addressed by the parties” (alterations and

quotation marks omitted)). Although proceedings before the panel are

generally confidential, 24 M.R.S. §§ 2853(1-A), 2857(1); M.R. Civ. P. 80M(a), a

panel’s findings on the question of negligence that are “unanimous and

unfavorable to the claimant . . . are admissible in any subsequent court action

for professional negligence against the [provider] by the claimant based on the

same set of facts upon which the notice of claim was filed.”5 24 M.R.S.

§ 2857(1)(C); see id. § 2855.

[¶15] We have examined in several cases challenges to the admission at

trial of prelitigation screening panel findings. In Irish I, we scrutinized the

constitutionality of an earlier version of the MHSA that required admission of

unanimous panel findings “without explanation” to the jury. 1997 ME 50,

¶¶ 7-19, 691 A.2d 664. We held that providing some neutral information about

the panel process to the jury was required to preserve the statute’s

5 Although not relevant here, if the panel finds unanimously against the provider on both
negligence and causation, those findings are likewise admissible in a subsequent lawsuit. 24 M.R.S.
§ 2857(1)(B) (2025).
10

constitutionality. Id. ¶ 11 (deciding that a prohibition on any explanation

whatsoever of the panel findings or process “deprived” jurors of “any and all

information of the context in which the panel operates” and would “withhold[]

information that is essential to the jury’s fact-finding role”). We enumerated

six pieces of information that must be provided to a jury when panel findings

are admitted under 24 M.R.S. § 2857(1), in order to allow the jury to perform

its function in conformance with a litigant’s right to a trial by jury.6 Irish I,

6 We explained,

[A] jury will be able to perform its function if the court makes preliminary comments
and final instructions that provide the following information:

1) the panel process is merely a preliminary procedural step through which
malpractice claims proceed;

2) the panel in this case consisted of (the name and identity of the members);

3) the panel conducts a summary hearing and is not bound by the Rules of
Evidence;

4) the hearing is not a substitute for a full trial and may or may not have included
all of the same evidence that is presented at the trial;

5) the jury is not bound by the finding(s) and it is the jurors’ duty to reach their
own conclusions based on all of the evidence presented to them; and

6) the panel proceedings are privileged and confidential. Consequently, the
parties may not introduce panel documents or present witnesses to testify about
the panel proceedings, and they may not comment on the panel finding(s) or
proceedings except to reiterate the information in 1 through 6.

This information provides a basis for the jury to understand the nature of the panel
findings and to put the findings in context in evaluating all of the evidence presented
at the trial.
11

1997 ME 50, ¶ 12, 691 A.2d 664. We otherwise upheld the constitutionality of

the screening panel process, id. ¶¶ 7-19, and we expressly rejected the

contention that “the integrity of the jury’s function depends on [a plaintiff’s]

ability to attack the findings by argument or cross-examination of panel

members,” id. ¶ 12.

[¶16] In Smith, 2006 ME 19, ¶¶ 3-4, 892 A.2d 433, the screening panel

found that the medical care provider was negligent but that the negligence was

not the proximate cause of the injury complained of. Only the finding of no

proximate cause, however, was admitted during the subsequent jury trial. Id.

¶ 6. We concluded that this “asymmetrical” admission of panel findings

violated the plaintiffs’ right to a trial by jury: “When there are findings favorable

to both parties, the admission of only those findings favorable to one party

distorts the jury’s fact-finding role.” Id. ¶ 22.

[¶17] In Estate of Nickerson, the plaintiff claimed that the provider had

breached the standard of care by failing to schedule consistent cholesterol level

testing despite indications that such testing was necessary. 2014 ME 19,

¶¶ 3-8, 86 A.3d 658. The panel unanimously found that the provider was not

Irish I, 1997 ME 50, ¶ 12, 691 A.2d 664. In Irish v. Gimbel, 2000 ME 2, ¶¶ 3, 6-7, 743 A.2d 736 (Irish
II), we rejected an argument that providing this information to the jury violated the separation of
powers required by the Maine Constitution.
12

negligent. Id. ¶ 9. In notifying the parties of the panel’s finding, however, the

panel chair referred to the ordinary practice in an unrelated physician’s office

as part of the basis of the panel’s decision. Id. ¶¶ 9, 20. We held that the trial

court should have excluded the panel finding from evidence at trial because the

panel had clearly relied on evidence outside the record in reaching its decision,

in violation of the MHSA. Id. ¶¶ 16-24; see 24 M.R.S. § 2854(1); M.R. Civ. P.

80M(g)(9).

[¶18] Cutting has not demonstrated that the trial court in this case

applied the MHSA unconstitutionally or otherwise erred or abused its

discretion when it denied Cutting’s motion in limine to exclude the panel

findings. According to Cutting, the panel chair offered to reach a decision based

on the records that had been filed after the initially-scheduled hearing could

not be held because of a snowstorm, but only if both parties agreed. The offer

was declined and the parties proceeded to a full hearing before the panel where

they presented evidence, and the panel then provided its findings. During the

subsequent trial, the court admitted the panel finding pursuant to statute,

providing the jury with all of the instructions that we held in Irish I are required

to protect the right to a trial by jury in this context. See Irish I, 1997 ME 50,

¶¶ 6-14, 691 A.2d 664; 24 M.R.S. § 2857(1)(C).
13

[¶19] Although Cutting now frames the sequence of events as

demonstrating extreme bias, she did not file any objection to the conduct of the

panel chair or other members or seek removal of any of the panel members. Cf.

M.R. Civ. P. 80M(b)(4), (g)(2). Her argument that the process prejudiced her

relies on an assumption that the panel extended its offer to decide the case on

the written records because it had reviewed the filings and pre-judged the case

in Down East’s favor. She bases this assumption on no more than her

perception that the panel process is generally “skewed in favor of” defendants

and almost never results in unanimous findings against them. Contrary to

Cutting’s suggestion, however, there is nothing in this record supporting these

assertions. The circumstances here are wholly unlike those in Estate of

Nickerson, where the panel chair expressly told the parties that the most salient

basis for the panel’s unanimous finding was something other than the evidence

that the parties had submitted. 2014 ME 19, ¶¶ 9, 20-24, 86 A.3d 658. The trial

court did not err or abuse its discretion when it determined that it hadn’t

“hear[d] anything to suggest or to . . . confirm that the entire process was so

undermined that [it] ought to exclude” the panel finding.
14

B. Punitive Damages

[¶20] Cutting also argues that the trial court erred when it granted Down

East’s motion for a judgment as a matter of law on Cutting’s claim for punitive

damages. Down East argues that the trial record contains no evidence that

could give rise to a punitive damages award and, in the alternative, that any

error was harmless because the jury found no liability, rendering any questions

involving damages academic. “Judgment as a matter of law . . . is appropriate

when, viewing the evidence and all reasonable inferences therefrom most

favorably to the party opposing the motion, a jury could not reasonably find for

that party on an issue that under the substantive law is an essential element of

the claim.” Garland v. Roy, 2009 ME 86, ¶ 17, 976 A.2d 940 (quotation marks

omitted); see M.R. Civ. P. 50(a). We review a trial court’s ruling on a motion for

judgment as a matter of law de novo. Garland, 2009 ME 86, ¶ 17, 976 A.2d 940;

see also, e.g., Snapp v. Unlimited Concepts, Inc., 208 F.3d 928, 932 (11th Cir.

2000) (reviewing de novo a trial court’s grant of a defendant’s motion for a

judgment as a matter of law on the issue of punitive damages). In addition, we

must consider whether any error was harmless. Under the harmless error

standard, “[t]he court at every stage of the proceeding must disregard any error
15

or defect in the proceeding which does not affect the substantial rights of the

parties.” M.R. Civ. P. 61.

[¶21] Here, because the jury found that Down East was not liable for

medical negligence, the jury could not award any damages at all, let alone

punitive damages. “Punitive damages may be awarded only if the plaintiff has

also been awarded actual or compensatory damages based on tortious conduct

of the defendant.” Horton & McGehee, Maine Civil Remedies § 4-4(a) at 74

(4th ed. 2004); see also, e.g., Zemero Corp. v. Hall, 2003 ME 111, ¶ 11, 831 A.2d

413 (“Although there was evidence to support a punitive damage award,

punitive damages are impermissible absent an award of compensatory

damages.”); DiPietro v. Boynton, 628 A.2d 1019, 1025 (Me. 1993) (“Punitive

damages . . . will lie only when the plaintiff receives compensatory or actual

damages based on the defendant’s tortious conduct.”); Rand v. Bath Iron Works

Corp., 2003 ME 122, ¶ 15, 832 A.2d 771. The jury was properly instructed not

to consider damages unless it found liability, and the jury’s verdict form

indicates that it followed this instruction. Cf. Niedojadlo v. Cent. Me. Moving &

Storage Co., 1998 ME 199, ¶ 6, 715 A.2d 934 (“We presume that the jury follows

the trial court’s instructions.”). Given the jury’s determination that Down East

was not negligent, even if the trial court erred in concluding that the evidence
16

could not support a punitive damages award—a question we need not examine

here—the error could not have affected Cutting’s substantial rights or the

judgment.7 Any error by the court in granting Down East’s motion for a

judgment as a matter of law on Cutting’s punitive damages claim is harmless.

See Needham v. Needham, 2022 ME 7, ¶ 16, 267 A.3d 1112; M.R. Civ. P. 61.

The entry is:

Judgment affirmed.

Laura H. White, Esq. (orally), and Danielle Quinlan, Esq., White & Quinlan, LLC,
Kennebunk, for appellant Carol Cutting

Christopher C. Taintor, Esq. (orally), Norman, Hanson & DeTroy, LLC, Portland,
for appellee Down East Orthopedic Associates, P.A.

Penobscot County Superior Court docket number CV-2016-192
FOR CLERK REFERENCE ONLY

7 Cutting speculates that an error could be prejudicial because jurors with little appetite for
compensating her (based on an improper assumption that insurance paid her medical bills) might
still have imposed punitive damages to deter future similar conduct by the doctor. She also argues
that because she told the jurors during opening statements that they would be considering punitive
damages, and then Down East told the jurors during closing arguments that they could not consider
awarding punitive damages, the jurors may have incorrectly assumed that the court did not think the
evidence supported her negligence claim and might have been improperly influenced by that
misimpression. We find no merit to this speculation. Cutting made the strategic choice to discuss
punitive damages in her opening statement, and the prejudice she posits could only result from the
jury failing to follow the court’s instructions. The jury, finding no liability, had no occasion to consider
damages at all.