PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette, Mims, and
Powell, JJ., and Lacy, S.J.
MATTHEW A. GALUMBECK, ET AL.
OPINION BY
v. Record No. 102416 JUSTICE CLEO E. POWELL
March 2, 2012
JOSEPH LOPEZ, ADMINISTRATOR OF THE
ESTATE OF MARITESS Q. LOPEZ, DECEASED
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Edward W. Hanson, Jr., Judge
Dr. Matthew A. Galumbeck and Plastic Surgery of Tidewater,
P.C. appeal a judgment in favor of the plaintiff Joseph Lopez
(“Lopez”), administrator of the estate of Maritess Q. Lopez
(“Maritess”). Finding that the trial court did not err, we
affirm the judgment.
BACKGROUND
On July 30, 2008, Maritess underwent outpatient surgery
performed by Dr. Galumbeck. After the surgery, Kenneth Hale
brought Maritess home. He noticed that she was not breathing
normally, she was unable to speak clearly and she had to be
helped to his car by the nurses.
On July 31, 2008, the morning after the surgery, Carmelita
Hale (“Hale”), Maritess’ sister, called Dr. Galumbeck’s office
and spoke to Nurse Marsha Phillips. Hale told Nurse Phillips
that Maritess was in pain, feverish and very dizzy. According
to Hale, Nurse Phillips expressed no concern and told her those
symptoms were normal.
Later that same day, Maritess died from aspiration
pneumonia secondary to the surgery. Lopez, her husband,
qualified as administrator of her estate and brought a wrongful-
death action against Dr. Galumbeck, Dr. Carl Flor, 1 and Plastic
Surgery of Tidewater, P.C.
At trial, Dr. Galumbeck testified that Nurse Phillips could
not have answered the phone call from Hale on July 31, 2008,
because she was in the operating room with him at that time.
When asked how he knew that, Dr. Galumbeck stated that he had
reviewed the surgical log. At that point, Lopez’ counsel
objected and the trial court held a side bar conference. 2 The
trial court then instructed the jury to disregard the mention of
any surgical log.
Dr. Galumbeck also testified that he was not paid for the
surgery. Another side bar conference was held, also off the
record. Dr. Galumbeck alleges that during the side bar
conference, he attempted to offer documents into evidence that
show he was never paid for the surgery. According to Dr.
Galumbeck, the trial court rejected the evidence.
1
Dr. Flor was the anesthesiologist during the surgery. The
claims against Dr. Flor were nonsuited prior to trial.
2
This discussion was not on the record, however, Dr.
Galumbeck claims that, during the side bar conference, he sought
to have the surgical log entered into evidence. According to
Dr. Galumbeck, the trial court denied his request.
2
During cross-examination, Dr. Galumbeck was asked about the
contents of his website, namely whether it states that he offers
board-certified anesthesiologists for all operations at Plastic
Surgery of Tidewater, P.C. Dr. Galumbeck’s counsel stated
“Objection. May we approach?” Another side bar discussion was
held off the record. At the conclusion of that discussion, the
trial court overruled the objection and Lopez’ counsel was
permitted to question Dr. Galumbeck about whether his website
indicated that he offered only board-certified
anesthesiologists. Dr. Galumbeck admitted his website stated
that his anesthesiologists were board-certified, even though Dr.
Flor is not board-certified. When Lopez offered a copy of the
website into evidence, counsel for Dr. Galumbeck objected to the
relevance of the exhibit. The document was admitted into
evidence.
At the end of the day, after the court adjourned, counsel
for Dr. Galumbeck recorded a statement with the court reporter
that he called a “proffer.” In his statement, counsel
summarized his arguments and some of the trial court’s rulings
regarding counsel’s attempts to introduce Defendant’s rejected
Exhibit A, the surgical log, and Defendant’s rejected Exhibit B,
the payment records. Counsel also restated his objections about
the admission of evidence that Dr. Flor was not a board-
certified anesthesiologist.
3
The following morning, Dr. Galumbeck made a motion for a
mistrial based on the misconduct of Juror Conway. According to
Dr. Galumbeck’s counsel, he saw Juror Conway shake the hand of
Dr. Waisman, one of Lopez’ expert witnesses, and tell him “good
job,” after Dr. Waisman had testified and the jury was leaving
the courtroom. Counsel for Dr. Galumbeck further alleged that
Juror Conway “shook his head[] and made a gesture with his right
fist, as if to say, I’m with you” towards Lopez.
The trial court stated that it would allow counsel to
question Juror Conway about these incidents. Counsel for Dr.
Galumbeck objected, stating that he believed it would be
improper for him to question the juror and then have the juror
remain on the jury. The trial court overruled the objection.
Outside of the presence of the other jurors, the trial
court asked Juror Conway if he had spoken to the plaintiff’s
expert. Juror Conway responded that he “didn’t talk to him.
[He] just shook his hand and said ‘good job.’ ” The trial court
asked what he meant by that, and Juror Conway responded that he
“thought [the expert] did a good job in dealing with . . . what
he was asked to do.” The trial court asked if this interaction
in any way indicated that Conway was biased, and Juror Conway
responded that it did not. The trial court then asked if Juror
Conway had ever shaken hands with Lopez, and Juror Conway
responded, “I have never touched Mr. Lopez.”
4
The trial court then allowed counsel for both parties to
question Juror Conway. Counsel for Lopez asked if Juror Conway
could “fairly and impartially decide this case,” to which Juror
Conway responded “Absolutely.”
Counsel for Dr. Galumbeck then asked Conway if he had
nodded his head at Lopez as he walked by. Conway responded,
“Oh, I’ve nodded my head at several people in here. What, can
you not nod your head or what?” He further explained that he
might have acknowledged Lopez with a nod “like ‘how are you,’ ”
but reiterated that he was impartial. The trial court
ultimately denied Dr. Galumbeck’s motion for a mistrial.
Dr. Galumbeck then moved for a mistrial based on the
admission of evidence about Dr. Flor’s lack of board
certification. The trial court said that it had already ruled
on that issue and denied the motion. Counsel for Dr. Galumbeck
asked to state his motion for the record, but the trial court
denied his request, stating: “This is denied, you can cite your
objections later.” When counsel for Dr. Galumbeck asked if the
court was not permitting him to state his motion for the record,
the trial court responded: “Not now. You will be [allowed]
later. We’ve got to get the case moving.” 3
3
There is no indication in the record that counsel for Dr.
Galumbeck attempted to state his motion for the record at a
later time.
5
After hearing all of the evidence, the jury returned a
verdict in favor of Lopez. Dr. Galumbeck and Plastic Surgery of
Tidewater, P.C. subsequently filed a motion to set aside the
verdict. The trial court denied the motion and entered judgment
on the jury verdict.
ANALYSIS
On appeal, Dr. Galumbeck asserts that the trial court erred
in (1) denying his motion for a mistrial due to a juror’s
alleged misconduct; (2) prohibiting him from introducing the
surgical log into evidence or from using it to refresh Nurse
Phillips’ recollection; (3) allowing testimony and evidence on a
collateral matter; and (4) admitting the unpaid medical bills
into evidence.
1. Juror Misconduct
Dr. Galumbeck argues that the trial court abused its
discretion by denying his motion for a mistrial due to the
misconduct of Juror Conway. Dr. Galumbeck contends that Juror
Conway’s actions and his evasive and confrontational attitude
when questioned about his actions clearly demonstrated that he
lacked impartiality. According to Dr. Galumbeck, Juror Conway’s
lack of impartiality required the trial court to replace him
with the available alternate juror or declare a mistrial. We
disagree.
We have recognized that
6
a mistrial will not be declared automatically
upon a showing of juror misconduct, but that the
trial judge, in the exercise of a sound
discretion, must determine whether remarks made
about the case by a juror to persons not jurors
demonstrate that prejudice might result. The
burden to establish this probability of prejudice
is upon the party moving for a mistrial. This
view is based upon the universal rule that fraud
will not be presumed and upon the reluctance to
presume prejudicial misconduct.
Haddad v. Commonwealth of Virginia, 229 Va. 325, 330, 329 S.E.2d
17, 20 (1985).
Thus, the law is clear that an empanelled juror is presumed
impartial and the burden to prove prejudice is on the party
moving for a mistrial. Id. Here, Juror Conway explained his
actions 4 and those explanations were found to be credible by the
trial court. On this record, it cannot be said that Dr.
Galumbeck carried his burden of proving prejudicial misconduct
on the part of Juror Conway.
2. Surgical Log
Dr. Galumbeck next argues that the trial court erred by
refusing to allow him to question witnesses about the surgical
log or introduce the surgical log into evidence as a sanction
for violating Rule 4:12. He contends that there was no Rule
4:12 violation, as there was no order compelling discovery of
the surgical log. He further states that he did not violate the
4
We note that Juror Conway was not asked about the hand
gesture he allegedly made toward Lopez.
7
pretrial scheduling order, as the order did not require either
party to list exhibits that are to be introduced for rebuttal or
impeachment. Finding that Dr. Galumbeck has failed to present a
sufficient record to permit review of the assigned error, we
hold that this argument is waived.
It is the obligation of the petitioner/appellant
to ensure that the record is sufficient to enable
the Court to evaluate and resolve the assignments
of error. When the appellant fails to ensure that
the record contains transcripts or a written
statement of facts necessary to permit resolution
of appellate issues related to the assignments of
error, any assignments of error affected by the
omission shall not be considered.
Rule 5:11(a)(1). In conjunction with this Rule, this Court has
repeatedly admonished:
A circuit court’s judgment is presumptively
correct, and the appellant bears the burden of
presenting a sufficient record to permit a
determination whether the circuit court committed
an alleged error.
Commonwealth Transp. Comm’r v. Target Corp., 274 Va. 341, 348,
650 S.E.2d 92, 96 (2007).
“We will not consider testimony which the trial court has
excluded without a proper showing of what that testimony might
have been.” O'Dell v. Commonwealth, 234 Va. 672, 697, 364
S.E.2d 491, 505 (1988). A necessary corollary to this rule is
that we will not consider an objection made to the trial court
without a proper showing of what that objection was. As with
excluded evidence, absent a transcript or written statement of
8
the facts that captures the arguments made at trial, this Court
has no basis upon which to review the trial court’s ruling.
Whittaker v. Commonwealth, 217 Va. 966, 968-69, 234 S.E.2d 79,
81 (1977).
In the present case, all of the relevant discussions
related to this issue were held off the record in a sidebar
conference. Dr. Galumbeck contends that he preserved this
argument, as well as others, by way of a proffer made on the
record. However, it is clear that Dr. Galumbeck’s “proffer” was
recorded after court had adjourned for the day and outside of
the presence of opposing counsel. Under our jurisprudence, only
“a unilateral avowal of counsel, if unchallenged, or a mutual
stipulation of the testimony expected constitutes a proper
proffer.” Id. at 969, 234 S.E.2d at 81.
[A]bsent such acquiescence or stipulation, this
Court will not consider an error assigned to the
rejection of testimony unless such testimony has
been given in the absence of the jury and made a
part of the record in the manner prescribed by
the Rules of Court.
Id.
It can hardly be said that Lopez acquiesced or stipulated
to a statement that he was unaware Dr. Galumbeck was making.
Thus, Dr. Galumbeck’s statement does not qualify as a proper
proffer. Accordingly, he failed to preserve those issues for
appeal.
9
Similarly, we hold that Dr. Galumbeck’s argument regarding
the use of the surgical log to refresh Nurse Phillips’ memory is
without merit. A review of the record demonstrates that Dr.
Galumbeck made no attempt to refresh Nurse Phillips’
recollection with the surgical log. Accordingly, we need not
address this argument.
3. Dr. Flor’s Board Certification
Dr. Galumbeck next argues that the trial court abused its
discretion by allowing Lopez to raise the issue of Dr. Flor’s
lack of board certification. Dr. Galumbeck contends that these
facts were collateral to the issue before the trial court, and
therefore should have been excluded. We need not decide this
issue, as Dr. Galumbeck has failed to preserve this issue for
appellate review.
Dr. Galumbeck initially raised his objections to testimony
about Dr. Flor’s lack of board certifications in a pretrial
motion in limine. However, he failed to request a ruling from
the trial court on this matter. Accordingly, he has waived this
issue on appeal. See Lenz v. Commonwealth, 261 Va. 451, 463,
544 S.E.2d 299, 306 (2001).
During the course of Dr. Galumbeck’s testimony, Lopez asked
about the contents of Dr. Galumbeck’s website, specifically
referencing a statement that Dr. Galumbeck offered board
10
certified anesthesiologists. 5 Dr. Galumbeck objected and sought
another sidebar conference. Thus, his actual objection and the
grounds therefor were made off the record. As such, this
argument is waived for the same reasons discussed above. See,
e.g., Whittaker, 217 Va. at 968-69, 234 S.E.2d at 81.
Finally, with regard to the information found in
Plaintiff’s Exhibit #3, a printout of Dr. Galumbeck’s website,
Dr. Galumbeck did specifically object to its introduction on the
grounds that it was irrelevant. We note, however, that Defense
Exhibit #5, offered by Dr. Galumbeck and admitted into evidence,
contains the same printout of his website to which he now
objects. We have repeatedly held that “where [a party]
unsuccessfully objects to evidence which he considers improper
and then on his own behalf introduces evidence of the same
character, he thereby waives his objection.” Saunders v.
Commonwealth, 211 Va. 399, 401, 177 S.E.2d 637, 638 (1970)
(citing Snead v. Commonwealth, 138 Va. 787, 801-02, 121 S.E. 82,
86 (1924); Culbertson v. Commonwealth, 137 Va. 752, 757-58, 119
S.E. 87, 88 (1923); Hutchinson v. Commonwealth, 133 Va. 710,
5
Counsel for Lopez initially inquired about “board
certified plastic surgeons.” However, upon Dr. Galumbeck’s
objection to the question, counsel for Lopez realized he had
misstated the contents of the website and corrected himself,
stating: “Excuse me. Thank you, Your Honor.
Anesthesiologists.” Dr. Galumbeck then objected a second time.
11
716-17, 112 S.E. 624, 626 (1922); Snarr v. Commonwealth, 131 Va.
814, 818-19, 109 S.E. 590, 592 (1921)).
4. Medical Bills
Dr. Galumbeck argues that the trial court abused its
discretion by allowing copies of Maritess’ medical bills into
evidence. Dr. Galumbeck contends that there was no claim for
medical expenses in this case, therefore this evidence was
irrelevant. He further asserts that the trial court compounded
this error by refusing to allow him to present evidence that
demonstrates that Maritess did not pay her medical bills. We
disagree.
We review a trial court’s evidentiary rulings
applying an abuse of discretion standard. We
will not overturn a trial court's exercise of its
discretion in determining whether to admit or
exclude evidence on appeal unless the evidence
shows that the trial court abused its discretion.
Hinkley v. Koehler, 269 Va. 82, 91, 606 S.E.2d
803, 808 (2005). While a “trial court has no
discretion to admit clearly inadmissible
evidence,” Norfolk & Western Ry. Co. v. Puryear,
250 Va. 559, 563, 463 S.E.2d 442, 444 (1995)
(quoting Coe v. Commonwealth, 231 Va. 83, 87, 340
S.E.2d 820, 823 (1986)), “a great deal must
necessarily be left to the discretion of the
court of trial, in determining whether evidence
is relevant to the issue or not.” Peacock Buick,
Inc. v. Durkin, 221 Va. 1133, 1136, 277 S.E.2d
225, 227 (1981) (internal quotation marks
omitted).
Riverside Hosp., Inc. v. Johnson, 272 Va. 518, 529, 636 S.E.2d
416, 421-22 (2006).
12
It is clear that, in the present case, the medical bills
were not offered for the purposes of seeking damages or
demonstrating how much money Dr. Galumbeck received. Rather the
medical bills were offered to contrast the level of emphasis Dr.
Galumbeck placed on the financial aspect of the transaction with
the quality of the medical care he delivered. Thus, the
evidence was arguably relevant to the plaintiff’s theory of the
case. Furthermore, the record demonstrates that Dr. Galumbeck
was allowed to testify, without objection, 6 that he was not paid
for the procedure. Accordingly, the trial court did not abuse
its discretion in allowing the medical bills into evidence.
CONCLUSION
For the foregoing reasons, the judgment of the trial court
will be affirmed.
Affirmed.
6
The record indicates that a sidebar conference occurred
during Dr. Galumbeck’s testimony on this matter, however, as
with the sidebar conferences discussed above, the discussion was
held off the record. Accordingly, any error related to
discussions that may have occurred during that sidebar
conference is waived. See Rule 5:11(a)(1).
13