GEORGE FRANCISCO v. ROBERT PETTIE & Another. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-769
GEORGE FRANCISCO
vs.
ROBERT PETTIE & another.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, George Francisco, filed a complaint in the
Superior Court against the defendants, alleging negligence
resulting in a motor vehicle accident. Answering special
verdict questions, the jury found that the defendant, Robert
Pettie, was negligent but that his negligence was not the cause
of the plaintiff's injuries. Judgment entered for the
defendants. The plaintiff filed a motion for additur and/or
reconsideration or in the alternative for a new trial; the
motion was denied. The plaintiff timely appealed the judgment
and denial of the motion. We affirm.
Background. In 2014, while in stop and go traffic, the
plaintiff was rear-ended by a Toyota Tacoma driven by Pettie on
1 American Gutter Cleaning and Installations, Inc.
Interstate Highway 93 near Boston. Pettie estimated that he was
traveling between five and thirteen miles per hour shortly
before the accident. The impact caused the front of the Tacoma
to become lodged in a trailer hitch extending from the rear of
the plaintiff's Ford F-350. The parties do not dispute that
Pettie was at fault for the accident or that he was driving a
vehicle owned by his employer, defendant American Gutter
Cleaning and Installations, Inc. The question for the jury was
whether Pettie's negligence was the cause of the plaintiff's
claimed injuries.2
Discussion. The plaintiff raises multiple issues on
appeal, none of which persuades us that the judgment should be
disturbed. We address each in turn.
1. Inconsistent verdict. The plaintiff argues that the
jury's answers to the special verdict questions (special
questions) were inconsistent and therefore the verdict cannot
stand. Notably, the plaintiff does not contend that the special
questions were inconsistent -- in fact, the judge adopted the
plaintiff's proposed questions. Rather, the plaintiff bases his
argument on the judge's answer to a jury question received
during its deliberations. The jurors asked the following:
2 The plaintiff claimed that as a result of Pettie's negligence
he "sustained serious injuries to his neck, back, head, arms and
other injuries, suffered great mental and emotional pain, was
obliged to expend monies for medical care and attendance."
2
"Regarding Question 1 on the special verdict questions, in order
to satisfy the legal definition of negligence does the plaintiff
have the burden of proving all, underlined, all four elements
cumulatively." The note referenced "pages 23 to 24 of [the
judge's] charge to the jury," which the jury had in the jury
room.3
After discussion with the attorneys, the judge said that he
planned to answer the question as follows: "The simple answer
to the jury's question is, yes. The plaintiff must prove each
of the elements of his negligence claim by a preponderance of
the evidence . . . although it need not be the same seven jurors
who agree as to each element." Both attorneys said they
"agreed" with the proposed answer, and it was provided to the
jury in writing. On appeal, the plaintiff contends that if the
jury answered "yes" to the first special question, then in light
of the judge's answer, the second special question would be
moot. And because the jury answered "yes" to special question
one and "no" as to special question two, the judge allowed a
"contradictory and inconsistent verdict to stand."
We first observe that the plaintiff did not object to and
in fact agreed with the judge's proposed answer to the jury
question. Passing on whether this constitutes waiver, the
3 The jury received a written copy of the judge's charge to
assist in its deliberation.
3
plaintiff's failure to object to the alleged inconsistent
verdict before the jury was discharged is fatal to his claim.
See Adams v. United States Steel Corp., 24 Mass. App. Ct. 102,
104 (1987) ("A party must object to inconsistent answers to
special questions before the jury is discharged"). If there is
no timely objection, any claim of error is waived and cannot be
raised for the first time on appeal. See Shafnacker v. Raymond
James & Assocs., Inc., 425 Mass. 724, 731 (1997). Here,
approximately ten minutes after the judge answered the jury's
question, it returned with a verdict. The clerk, without
objection, then recorded the verdict. The plaintiff's request
to then poll the jury was not a substitute for the failure to
object. This claim is therefore waived.4 See Adams, supra.
2. Cross-examination of defense expert witness. The
plaintiff contends that the judge erred in precluding him from
cross-examining the defendants' expert witness on his status as
an employee of the defendants' liability insurer. We review for
4 Although the judge's answer to the jury's question could have
been more precise, taking the instructions as a whole, the
jury's answers to the two special questions can be harmonized
and thus are not inconsistent. See Solimene v. B. Grauel & Co.,
399 Mass. 790, 800 (1987). A party's action may be negligent,
but not the legal cause of the other party's injuries. See
Restatement (Second) of Torts §§ 430, 431, and comments (1965).
This is particularly true here, as Pettie admitted the accident
was his fault but challenged whether that negligence was the
cause of the plaintiff's claimed injuries. See Service Publ.,
Inc. v. Goverman, 396 Mass. 567, 573 n.8 (1986).
4
an abuse of discretion or error of law. See Antoniadis v.
Basnight, 99 Mass. App. Ct. 172, 176 (2021). Ordinarily, a
plaintiff may not elicit testimony showing that a defendant has
liability insurance because evidence of insurance can lead to
exaggerated verdicts for plaintiffs. See Goldstein v. Gontarz,
364 Mass. 800, 808 (1974). However, the rule does not
necessitate exclusion of evidence of liability insurance when
offered to prove bias of a witness. See McDaniel v. Pickens, 45
Mass. App. Ct. 63, 66-67 (1998).
After consultation with the judge, the parties agreed that
plaintiff's counsel would not elicit testimony about the
defendants' liability insurance. Rather, the plaintiff was
permitted to elicit evidence that the expert witness was not
impartial and independent, but rather that he was an employee of
and intricately connected to the defendants. On these facts,
because the parties agreed, the judge did not abuse his
discretion in limiting cross-examination. However, the
defendants are cautioned that in future cases, if an expert
witness is connected to their liability insurer as this expert
was, they should expect that such will be brought out in cross-
examination, as it is appropriate evidence of bias.
3. Missing witness instruction. The plaintiff argues that
the judge erred in denying his motion in limine that requested a
missing witness instruction regarding the passenger in the
5
Tacoma. We review for abuse of discretion. See Mazzoleni v.
Cotton, 33 Mass. App. Ct. 147, 150-151 (1992). Here, the judge
determined that the passenger's testimony would be cumulative of
other evidence, particularly where Pettie admitted that he was
at fault for the accident. See Commonwealth v. Tripolone, 57
Mass. App. Ct. 901, 901 (2003). And the judge allowed
plaintiff's counsel to question Pettie regarding the passenger.
See Rolanti v. Boston Edison Corp., 33 Mass. App. Ct. 516, 526-
527 (1992). There was no error.
4. Learned treatise. The plaintiff claims that the judge
abused his discretion in denying his motion in limine to enter
into evidence two articles, contending that they were learned
treatises. The articles were authored by the owner of a company
that sells safety equipment for receiving hitches, and explained
that there is an increased risk of whiplash when someone is
rear-ended in a vehicle with a receiving hitch. There was no
error as the judge properly found that the articles were not
learned treatises where the author was selling a product, see
Federico v. Ford Motor Co., 67 Mass. App. Ct. 454, 458-459
(2006), there was no evidence that the articles were from a
reliable authority, see Commonwealth v. Sneed, 413 Mass. 387,
396 (1992), and the judge allowed plaintiff's counsel to
6
question the defendants' expert witness about the contents of
the articles.5
5. Exclusion of citation issued by police. The plaintiff
contends that the judge erred in excluding the traffic citation
issued to Pettie by the responding State police trooper. There
was no error as the citation amounted to a determination of
fault, see LePage v. Bumila, 407 Mass. 163, 164-167 (1990),
contained second level hearsay, see Julian v. Randazzo, 380
Mass. 391, 394 (1980), and Pettie did not contest that he was at
fault for the accident.
6. Motion for directed verdict. The plaintiff contends
that the judge erred in denying his motion for a directed
verdict on the issue of liability. As did the trial judge, we
"construe the evidence in the light most favorable to the
nonmoving party and disregard that favorable to the moving
party." O'Brien v. Pearson, 449 Mass. 377, 383 (2007). We ask
whether a reasonable inference can be drawn in favor of the
nonmoving party. See Dobos v. Driscoll, 404 Mass. 634, 656,
cert. denied, 493 U.S. 850 (1989). Pettie admitted that the
accident was his fault, and it was for the jury to determine
5 Because this is not a medical malpractice action, even if the
judge found that the articles were learned treatises,
plaintiff's counsel would only have been permitted to read the
contents of the article into evidence on cross-examination. See
Kace v. Liang, 472 Mass. 630, 645 (2015).
7
whether the plaintiff proved all four elements of negligence to
establish legal liability. See Adams v. Congress Auto Ins.
Agency, Inc., 90 Mass. App. Ct. 761, 765 (2016).6 There was no
error.
7. Exclusion of plaintiff's expert witness. The plaintiff
next argues that the judge "erred by cancelling [his] ability to
call [his] expert witness." He cites no authority for his
proposition that the due process clause grants litigants a right
to present expert testimony. Rather, "[t]rial judges have broad
discretion to make . . . rulings conducive to the conduct of a
fair and orderly trial" (quotations omitted). Bolton v.
Massachusetts Bay Transp. Auth., 32 Mass. App. Ct. 654, 657
(1992). The plaintiff had multiple opportunities to present
expert testimony, both in his case in chief and at the end of
the defendants' case, but his expert witness failed to appear
for trial. In fact, the trial had been continued for one week
to accommodate the witness' schedule. The judge was not
required to keep the jury for an undetermined time before the
plaintiff's expert witness arrived. See id.
8. Other issues. The plaintiff claims error in the denial
of his request to conduct an experiment in the courtroom, denial
6 Additionally, the plaintiff failed to explain how the denial of
his motion for a directed verdict on the issue of liability
prejudiced him where the jury found the defendants negligent,
thereby rendering the motion moot.
8
of his motion for additur or a new trial, and denial of his
request to poll the jury. Because he failed to cite to any
authority on these issues, the arguments do not rise to the
level of appellate argument, and therefore we need not address
them. See Cabot v. Cabot, 55 Mass. App. Ct. 756, 768 (2002);
Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628(2019).7
Judgment affirmed.
Order denying motion for
additur and/or
reconsideration or in the
alternative for new trial
affirmed.
By the Court (Blake,
Englander & Walsh, JJ.8),
Clerk
Entered: March 22, 2023.
7 To the extent that the plaintiff raised arguments not discussed
herein, we have not overlooked them but conclude that they do
not merit discussion. See Commonwealth v. Domanski, 332 Mass.
66, 78 (1954).
8 The panelists are listed in order of seniority.
9