Fyffe v. Massachusetts Bay Transportation Authority

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13-P-186 Appeals Court
COLLEEN FYFFE vs. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY &
another. 1
No. 13-P-186.
Suffolk. January 14, 2014. - October 6, 2014.
Present: Trainor, Graham, & Agnes, JJ.
Massachusetts Bay Transportation Authority. Practice, Civil,
Argument by counsel, Conduct of counsel, Opening statement,
Instructions to jury, New trial. Damages, Remittitur.
Civil action commenced in the Superior Court Department on
May 11, 2010.
The case was tried before Judith Fabricant, J., and a
motion for a new trial or remittitur was heard by her.
John J. Bonistalli (Jonathan P. Feltner with him) for the
defendants.
Thomas R. Murphy for the plaintiff.
AGNES, J. As we explain in detail below, this is a case
where, contrary to established law and the trial judge's
numerous cautions and rulings, plaintiff's experienced trial
1
Aiden Quinn.
2
counsel 2 improperly argued (1) facts that were not in evidence,
(2) concepts of liability, despite the parties' stipulation that
the only triable issues related to damages, and (3) that the
jury were the conscience of the community and had a duty in this
case to safeguard users of public transportation in the future.
Plaintiff's counsel also wilfully disregarded the judge's
explicit rulings on a number of issues and, by defiantly
challenging her rulings in front of the jury, undermined her
attempts to remedy his misconduct. As a result of these
numerous transgressions by plaintiff's trial counsel, the judge
was required to "conduct[] the trial under severe and
exasperating handicaps." Stavisky v. Slotnik, 19 Mass. App. Ct.
1028, 1030 (1985). Mindful of the deference we owe the judge's
determination on a motion for a new trial whether such errors
were prejudicial, in this case our review of the record of this
very brief trial (two full days of testimony) persuades us that
the errors committed by plaintiff's counsel, considered in their
totality, "injuriously affected the substantial rights" of the
defendants and deprived them of a fair trial. G. L. c. 231,
§§ 119, 132. Accordingly, despite the judge's commendable
patience, we vacate the judgment and remand for a new trial.
Procedural background. The plaintiff Colleen Fyffe was
injured on May 8, 2009, when the Massachusetts Bay
2
Plaintiff's appellate counsel was not her trial counsel.
3
Transportation Authority (MBTA) trolley in which she was riding
struck another trolley on the MBTA's Green Line in Boston. She
filed suit in Superior Court against the MBTA and the operator
of her trolley, Aiden Quinn, alleging that the defendants were
liable in negligence. Before trial it was agreed that the
plaintiff's trolley crashed due to the negligence of the
operator. 3 The parties stipulated, and the trial judge
instructed the jury, that the sole issue was the amount of money
that would represent fair and reasonable compensation to the
plaintiff for the injuries she suffered as a result of the
defendants' negligence. Also as agreed, the jury were
instructed that punitive damages were not part of the case
before them. The verdict slip called for the jury to provide a
single figure representing the total of all compensatory
damages, with no breakdown of the damages components on which
3
There was no direct evidence of what the operator was
doing in the moments leading up to the crash. In a medical
record that was read to the jury, there is a reference that the
operator of the MBTA train was using a cellular telephone at the
time of the collision. It certainly was a reasonable inference
that the operator, defendant Quinn, was not paying attention to
his driving. However, there was no evidence of "text messaging"
following a voice message as argued by plaintiff's trial
counsel. In any case, because liability was conceded by the
defendants, the judge properly described plaintiff's trial
counsel's references to the operator sending a text message just
before the crash and to a "texting crash" in his opening
statement and closing argument as having no probative value, but
as "inflammatory."
4
they were instructed, such as medical expenses, lost earnings,
and pain and suffering.
The jury returned a verdict awarding the plaintiff $1.228
million in damages. After the entry of judgment, the defendants
timely filed a motion for a new trial or remittitur, asserting
that the verdict was excessive and against the weight of the
evidence; that as a result of deliberate and prejudicial
misconduct by plaintiff's counsel the jurors were exposed to
evidence not presented at trial; and that their verdict was
reached under the influence of passion, sympathy, and prejudice.
After a hearing, the trial judge issued a memorandum of decision
and order denying the defendants' motion. The defendants appeal
from both that order and the judgment.
Evidence at trial. The plaintiff presented evidence that
she was forty-six years old at the time of the crash; that when
the trolleys collided her neck snapped sharply backwards (her
seat faced the rear of her train 4); that she sustained cervical
and lumbar spine injuries; that she incurred medical bills in
the amount of $20,309.66; that she could not return to her job
as a gate agent for Delta Airlines (Delta) because her injuries
prevented the required regular lifting of heavy suitcases; that
her 2008 Delta wages were $32,781; that if she worked full-time
4
We use the terms "train" and "trolley" interchangeably, as
nothing in this case turns on any distinction between the two.
5
for Delta, she could earn up to $40,000 annually plus benefits;
and that in July of 2010 she began working in a restaurant
where, in 2011, she worked two days per week, earning $15,479.
Although the defendants agreed with the plaintiff that the
MBTA trolley operator was negligent, there were a number of
issues they disputed at trial, including the severity and
consequences of the plaintiff's neck injury; whether her lower
back injury, chronic headaches, and depression and anxiety were
preexisting conditions not caused or aggravated by the
collision; the extent to which the plaintiff was disabled from
working; and the adequacy of the proof of damages attributable
to lost earning capacity.
In order to understand the significance of remarks made by
plaintiff's counsel in his closing argument, it is necessary to
set forth something of the testimony of the two medical experts.
The plaintiff's expert, Dr. Francis Rockett, a neurosurgeon,
first saw the plaintiff in December, 2010, about twenty months
following the train crash. 5 He did not review her medical
records from before the May, 2009, crash. Based on a magnetic
resonance imaging (MRI) study of the plaintiff done in June,
5
The plaintiff's medical records indicate that following
the train crash, she treated with her primary care physician who
referred her to a neurosurgeon, Dr. Duggan, who prescribed a
course of physical therapy.
6
2009, 6 he opined that she had a herniated cervical disc. When
asked, over defense objection, "what that herniated disc is
doing," he not only stated it was "pushing against the spinal
cord," but added if the "anterior spinal ligament," which
protects the spinal cord "from further extrusion of the disc,"
did not remain intact, "it would render the patient
quadriplegic." 7 After another objection to a follow-up question,
6
The date of this examination is significant because there
is evidence that following the train crash, the plaintiff
participated in physical therapy and her condition improved
substantially. There is also evidence that she reinjured
herself in October, 2009. Once the plaintiff completed her
initial course of physical therapy relating to her neck on
November 3, 2009, she did not treat again until she saw Dr.
Rockett in December, 2010. At that time he ordered a second MRI
exam for the plaintiff which was limited to her lumbar spine.
The plaintiff's first complaint of lower back pain was not until
February, 2010, nine months after the train crash. Dr. Rockett
recommended that she participate in physical therapy to
strengthen the muscles in her back and abdomen. After a
February 11, 2011, visit, Dr. Rockett saw the plaintiff again in
December, 2011, and May, 2012. Although Dr. Rockett wrote two
prescriptions for physical therapy, the plaintiff did not
utilize the prescriptions.
7
The testimony by Dr. Rockett on this point, in its
entirety, was as follows:
"I can show you what the disc image shows right here. And
that's the static picture. But the thing is that the disc
has protruded out through the ligament, which is herniated
-- means it's herniated, and it's pushing against the
spinal cord. At the same time it's lifting this anterior
spinal ligament which in turn is protecting the cord from
further extrusion of the disc, which if that took all of
that disc material out and pushed it into the spinal cord,
it would render the patient quadriplegic. So if that
little thin ligament that's holding things together for
7
there was a sidebar conference. Counsel for the defendants
pointed out that the subject of quadriplegia had not previously
surfaced in any discovery. Plaintiff's counsel readily admitted
that quadriplegia was "not in question." 8 The judge assumed and
plaintiff's counsel readily acknowledged that the witness was
not going to testify that the plaintiff was a quadriplegic. Dr.
Rockett went on to explain that in March, 2012, he noted the
plaintiff had reported pain radiating down her left arm to her
left hand, and that this pain was the result of the pressure of
the disc against the ligaments in the spinal canal. He added
that the degree of the plaintiff's pain depended on the degree
of pressure against those ligaments. He also opined that the
plaintiff's complaints of low back pain first made about nine
months after the trolley crash, and of headaches (which had also
been a subject of complaints dating back to 2004), were related
her, and as long as that is intact, her condition will be
as we've observed."
Although this testimony was not immediately followed by an
objection, defense counsel's earlier objection to the question,
and his later sidebar statement that the reference by Dr.
Rockett to quadriplegia was outside the scope of pretrial orders
concerning the expert witness testimony, were sufficient to
preserve the issue for appeal.
8
There is no reference to quadriplegia in the pretrial
discovery. In her supplemental answers to expert witness
interrogatories, the plaintiff stated that it was the opinion of
Dr. Rockett that she suffered "9% permanent impairment of the
cervical spine, 15% impairment of the lumbar spine, and 23%
whole person permanent impairment."
8
to that event. Dr. Rockett opined that the collision
permanently disabled the plaintiff from her job as a Delta gate
agent due to the requirement that such workers lift heavy pieces
of luggage. Dr. Rockett did not opine that the plaintiff was
permanently disabled from other types of employment that did not
involve heavy lifting. See note 8, supra.
The jury also heard testimony by means of a videotaped
deposition of Dr. Joseph D'Alton, a board certified neurologist
called by the defendants. Dr. D'Alton did not treat or examine
the plaintiff, but rendered opinions based on a review of the
plaintiff's medical records. He agreed with Dr. Rockett that
the June, 2009, MRI study of the plaintiff's neck revealed a
disc herniation at C4-C5 that was caused by the trolley crash,
but he described the injury far differently from Dr. Rockett. 9
Dr. D'Alton testified that in most such cases the extruded disc
material is reabsorbed by the body and, with physical therapy,
the symptoms go away within six to twelve weeks. In particular,
9
Dr. D'Alton testified that he used the term "herniation"
to describe the plaintiff's condition in June, 2009, because he
uses that term whenever the disc capsule is breached and disc
material is extruded (as opposed to a "disc bulge" or "disc
protrusion," where there is no breach). However, he stated that
there was no evidence that the nerve root or spinal cord was
compressed. He added that the plaintiff's medical records
contain reports that shortly after the train crash, she did not
report any radiating pain down her arm or any sensation of
numbness, which indicates that she did not suffer any nerve
compression. He opined that the plaintiff's report to Dr.
Rockett in May, 2012, of tingling in her hands was most likely
an unrelated symptom of carpal tunnel syndrome.
9
he interpreted the plaintiff's medical records, especially the
notes of her 2009 physical therapy treatment, as indicating that
by November, 2009, she had improved considerably, had only mild
pain, and was fit to return to work with limitations on lifting
for about one month before she would be ready to resume her
regular employment. He also opined that there was no causal
relationship between the plaintiff's lower back problems and the
train crash.
Discussion. 1. Introduction. The defendants contend that
during the opening statement, throughout the presentation of the
evidence, and during closing argument, plaintiff's counsel
violated established rules of practice and evidentiary
standards, frequently in direct violation of a ruling sustaining
a defense objection. Observations made by the trial judge in
her memorandum of decision indicate that she took the same view
of the conduct of plaintiff's counsel, noting, for example, his
"efforts to elicit evidence without any apparent good faith
basis to believe that such evidence would be admissible."
Although the judge responded to some of these violations by
sustaining objections and giving instructions to the jury, we do
not believe the actions taken by the judge cured the prejudice
caused by counsel's misconduct.
2. Opening statement by plaintiff's counsel. "The proper
function of an opening is to outline in a general way the nature
10
of the case which the counsel expects to be able to prove or
support by evidence." Posell v. Herscovitz, 237 Mass. 513, 514
(1921). "It is not an opportunity for argument." Commonwealth
v. Croken, 432 Mass. 266, 268 (2000). In his opening,
plaintiff's counsel made multiple statements about the crash and
the train operator's actions prior to and during the crash,
despite the fact that the parties had stipulated that the
defendants were negligent. For example, counsel told the jury
that as the trolley left Government Center station and
accelerated to full speed, defendant Quinn took out his cellular
telephone and called his girlfriend, leaving a voice message.
The judge sustained an objection and told counsel "to
concentrate on the issue that is before the jury." Plaintiff's
counsel responded by telling the jury that the operator then
composed and sent a text message to his girlfriend as the train
sped by yellow and red warning lights indicating a stopped train
was ahead. Another objection was sustained, and again the judge
instructed counsel, "let's move on to the issue that is before
the jury." Plaintiff's counsel then described for the jury a
scene in which the operator looked up from his telephone and saw
the crash about to occur, despite the fact that there was no
basis for counsel to believe there would be admissible evidence
to support his statement. Despite several admonishments,
plaintiff's counsel persisted in referring to facts that he had
11
no reasonable basis to expect would be proved by the evidence.
Finally, the judge delivered a cautionary instruction to the
jury.
However, plaintiff's counsel disregarded the judge's ruling
and injected facts into the case that were prejudicial, not
probative of the issues, and not supported by admissible
evidence. For example, despite the judge's explicit caution
during a bench conference that counsel not refer to facts that
would not be supported by evidence, counsel continued, "At the
crash people are thrown from their seats in the trains, against
the walls and on to the floor. People are seen with contorted
extremities, bleeding, necks are snapped, and --." Defense
counsel objected again at this point, but the judge did not
respond except by stating, "Counsel, again, you need to confine
yourself to what you have reason to expect is going to come into
evidence." Contrast Rivera v. Club Caravan, Inc., 77 Mass. App.
Ct. 17, 21 (2010) (judge struck plaintiff's counsel's improper
statement as to driver's blood alcohol level and instructed jury
that they would not receive evidence on that subject, that the
statement should not have been made, and that they should
disregard it).
Unlike in A.C. Vaccaro, Inc. v. Vaccaro, 80 Mass. App. Ct.
635, 640-641 (2011), where there was one improper statement in
the opening, in this case there were multiple improper
12
statements. As in Goldstein v. Gontarz, 364 Mass. 800, 811-812
(1974), where an improper statement was the basis for ordering a
new trial, here the improper statements were not probative and
were made deliberately -- and in contravention of the judge's
numerous directives to counsel to confine his statements to the
evidence and to the issue at trial.
3. Closing argument. Prior to the closing arguments, the
judge gave the jurors a comprehensive instruction explaining
that closing arguments were not evidence and reminding them that
they must rely on their own memory of the evidence.
In keeping with customary practice, defense counsel made
the first closing argument, and suggested that the central
question was what is fair and reasonable compensation for the
injuries that the plaintiff suffered as a result of the trolley
crash. Defense counsel attempted to draw a distinction between
fair compensation to the plaintiff for her injuries and a damage
award that was intended to punish the defendants. He discussed
the plaintiff's medical records, and argued that the jury should
credit the opinion of the defense medical expert who opined that
the plaintiff's injuries due to the train collision were not as
significant as she claimed and that some of her complaints were
not related to the defendants' negligence. Defense counsel also
stressed that there was important evidence missing from the case
-- in the sense that there was no evidence of how long the
13
plaintiff, then forty-nine years old, had planned to work -- to
enable the jury to accurately calculate the value of the
plaintiff's loss of earning capacity in the event the jury
believed that she was no longer able to work.
Plaintiff's counsel, in stark contrast to the approach
taken by defendants' counsel, chose not to follow established
rules of conduct during his closing. He told the jurors that
not only were they required to answer the question submitted by
the judge, but that each juror had a duty to explain to the
other jurors the reason or reasons for deciding each issue in a
particular way. Defense counsel objected, but the judge
deferred a ruling on the matter. Plaintiff's counsel next not
only argued that the defendants' apologies were "h[o]llow," but
in direct violation of earlier rulings by the judge and settled
principles of evidence law, he added that the defendants had
failed to take corrective action to prevent such collisions from
happening in the future. See Mass. G. Evid. § 407(a) (2014)
(evidence of subsequent remedial measures generally
inadmissible). 10 A defense objection was sustained, and the
10
Plaintiff's counsel argued as follows:
"I want to take you back at the moment, right to the
beginning of the trial, though, to the first thing that you
heard from the MBTA and Aiden Quinn through their counsel.
It was an apology. An apology that I suggest to you was
h[o]llow, feigned apology. And as my mother told me many
times when I was young, did something I wasn't supposed to
14
judge told plaintiff's counsel to confine himself to the issue
before the jury, but plaintiff's counsel followed immediately by
telling the jurors that the defendants had forced the plaintiff
to bring this lawsuit. Another objection was lodged by defense
counsel and sustained by the judge, who again instructed
plaintiff's counsel to confine himself to the issue and the
evidence. Plaintiff's counsel responded by disagreeing with the
judge's ruling and by repeating the suggestion that the MBTA had
not taken responsibility for the plaintiff's injury. Another
objection was made by defense counsel, to which the judge
responded by delivering a cautionary instruction. 11
do, and then, 'Oh, I'm sorry,' she said, 'It's too little,
too late.' And that's what this apology is. Too little,
too late. The question is: What has the MBTA done to
prevent this from happening again?"
See Mass. G. Evid. § 409(a) (2014) (generally, expressions of
sympathy by a defendant for the injury suffered by a plaintiff
are not admissible).
11
The judge made these remarks to counsel and the jury:
"I'm going to interrupt you for just a moment, Counsel.
Jurors, as I told you, the issue before you is to decide,
based on the evidence that has been presented in this
trial, to decide what amount of damages will fairly and
adequately compensate the plaintiff for the injury
suffered. And I will be explaining to you the components
of that injury. The function of closing argument is to
discuss the evidence that has been presented on that issue.
That is the damages incurred by this plaintiff and the
amount of money that would be fairly and adequately
compensate this plaintiff for the damages that she has
incurred. So, Counsel, confine yourself to that issue,
please."
15
Plaintiff's counsel responded to the judge's caution with a
polite "[t]hank you, Your Honor," and, with his next breath,
returned to his theme that the MBTA blamed the plaintiff and was
not taking responsibility for her injuries: "What the MBTA has
done in talking about the damages sustained by Colleen Fyffe, is
to try to present to you a lack of responsibility. To try to
blame Colleen Fyffe, blame other things going on in her life,
and shed their responsibility and blame everything else.
They've looked through every one of her drawers, looked into her
cupboards, looked into her medical --[.]" Another objection was
made by defense counsel, and again, the judge instructed
plaintiff's counsel to confine himself to the evidence.
A few moments later, plaintiff's counsel returned to his
theme that the MBTA sought to blame the plaintiff for her
injuries, which led to another objection and another caution by
the judge, who instructed plaintiff's counsel to finish and
stated she would discuss the matter with counsel at sidebar
after the argument.
Plaintiff's counsel then sailed into another theme by
arguing that the jury should be aware that this was an
"important coverage case," that there may be media coverage of
it, and that it would be the first verdict after the train
16
crash. 12 Following another objection, the judge gave yet another
cautionary instruction telling jurors to disregard any
consideration of media coverage. 13
Plaintiff's counsel moved on to discuss his client's
injuries, limitations, and ongoing impairment for the next few
minutes of his closing. He told the jury that all the doctors,
including the defendants' medical expert, Dr. D'Alton, agreed
that the plaintiff suffered a "severe injury." Counsel then
made an unveiled reference to Dr. Rockett's testimony on the
possibility that the plaintiff could become a quadriplegic:
"This herniated disc at C-4/5, which has left the disc
space and entered into the spinal canal, impinging on our
spinal cord, being held back from further damage to that
spinal cord now by only a very thin fragile membrane. That
thin fragile membrane being the only thing that is
preventing, or presently, at this moment, holding back the
12
Plaintiff's counsel stated,
"Now, your job in this case is a very important one.
Again, as both the Court and myself indicated to you, it's
a very important coverage case. There could be media
coverage on this case, and this is the first verdict. Your
verdict will be the first."
13
The judge told the jurors,
"Jurors, you will disregard any media coverage and any
thought that there might be media coverage. Your job here
is to decide the facts of the damages incurred by this
plaintiff and to decide the amount that will fairly and
adequately compensate her for the damages she has suffered.
It is of no significance whether there has been media
coverage, whether there will be media coverage. Put that
entirely out of your mind. Counsel, again, let's focus on
the evidence, please."
17
further herniation of that disc into Colleen Fyffe's spinal
cord with the potential, with a risk that she lives with
every day of very, very grave consequences. They don't
want to talk about that."
Defense counsel objected and the judge sustained the objection,
but plaintiff's counsel responded by arguing with the judge,
before the jury, that what he had said was "exactly what the
evidence was." The judge again told plaintiff's counsel to
confine himself to the evidence of the damages suffered by the
plaintiff, and he responded, again before the jury, "that's
exactly what I'm talking about, Your Honor." What then followed
was yet another attempt by plaintiff's counsel, in violation of
the judge's explicit prior rulings, to use the testimony of Dr.
Rockett to summon the image of his client as a person standing
on the precipice of quadriplegia:
"This damage that Colleen Fyffe suffered to her spinal
column, to this herniated disc is one that she lives with
every day. She lives with not only the pain, not only the
function or loss, not only the effects on every part of her
life, but with the risk of the further harms that sit in
the background and will sit in the background for the rest
of her life. And your determination on this case will be
the final determination. Your verdict will be the only
verdict on this case. Your verdict will be the verdict
forever. Now, Colleen Fyffe's injury was -- is not static.
It is one as described by the medical evidence in the case,
by Dr. Rockett, as one that changes. It changes all the
time and it changes in part based upon use. The more
stress, strain, use that Colleen Fyffe placed on her neck,
it changes the disc. She every day walks a tightrope of
whether or not there's going to be further injury from this
disc. Whether or not this membrane that is holding the
disc back now from the spinal column is going to stay
there. Whether it's going to hold."
18
Later, when plaintiff's counsel finally came to the issues
of causation and the various components of her damages, he
injected the following: "It was the MBTA's choice to save the
money on a seat without a head restraint." There is no evidence
in the case to support this remark, which was, in any event,
irrelevant to the question before the jury. Defense counsel
objected and once again the judge told plaintiff's counsel to
confine himself to the issue of damages.
After some skirmishing over whether plaintiff's counsel
should specify the amount of damages she was seeking, another
remarkable exchange occurred that illustrates that plaintiff's
counsel was acting in conscious disregard of the law as well as
the judge's repeated instructions:
Plaintiff's counsel: "On this case, you as this jury, as
the jury in all cases that we do, is considered by the
courts to be the conscience of the community. It is your
job as the conscience of the community –-"
Defense counsel: "Objection, Your Honor."
Plaintiff's counsel: "-- to determine --"
The judge: "I'm going to be explaining to the jury their
function. The only issue before the jury is the amount of
the damages. Counsel, you've used up your time. Let's
finish now."
Plaintiff's counsel: "Okay. As this jury, you are the
guardians of the safety of all of the moms, all of the
dads, and all of the children, and all of the grandparents
that ride in these trains. It is your –-"
Defense counsel: "Objection, Your Honor."
19
Plaintiff's counsel: "-- decision --"
Defense counsel: "Objection."
Plaintiff's counsel: "-- that --"
Defense counsel: "Move to strike any comment that --"
The judge: "I'll address it. Counsel, finish up, please."
Plaintiff's counsel: "Thank you, Your Honor. It is your
decision that will make the determination as to what the
responsibility is by the MBTA for the protection of these
people, the paying passengers of its trains. Thank you."
The judge: "I'll see counsel at sidebar."
At sidebar, 14 the judge informed counsel that she would address
the improprieties in the closing argument by instructing the
jury (1) that their role was to fix the compensation due to the
plaintiff and not to punish the defendants, (2) that a juror is
not under any obligation to explain his or her thinking to the
other jurors, and (3) that because liability was not an issue,
they were not required to determine how the trolley had been
operated, or the nature of the seat or other equipment. 15
14
As the sidebar conference began, an emphatic defense
counsel made it clear that he was looking to the judge to take
strong corrective action: "I've been doing [closing arguments]
for 37 years, and I've never heard anything as outrageous as
that, Your Honor. . . . [I]t is appalling how far outside what
appropriate argument that was to the point of almost every time
I stood up. . . ." See Harlow v. Chin, 405 Mass. 697, 703 n.5
(1989) ("I've never heard an argument like that, and I hope I
never hear one like it").
15
The judge specifically rejected the argument by defense
counsel that it was improper for plaintiff's counsel to suggest
to the jury in closing argument that the plaintiff should be
20
However, she did not give any instructions on these matters at
that time, instead moving on to the final jury charge.
In her final instructions, the judge addressed in direct
fashion two aspects of the numerous acts of misconduct committed
by plaintiff's trial counsel. First, she instructed the jury
that "[t]he news media is entirely irrelevant to your task in
this case. You should give no thought to how the news media, or
anyone else, might report on your verdict or might react to
you." Second, she told the jurors, "you don't have any sort of
obligation to explain yourself to anyone. It can be helpful in
the course of deliberation if, when you express a view, you
explain why you hold that view, and sometimes if you give an
explanation, you persuade other jurors. But you have no
obligation in the course of your deliberations or at any other
time to explain your views to anyone." However, beyond these
instructions that related to specific errors by plaintiff's
trial counsel, the judge did not specifically address his other
compensated $760,000 for loss of earning capacity solely on the
basis of evidence that the plaintiff earned $40,000 per year
prior to the train crash by assuming she would have worked until
sixty-five years of age. The judge reasoned that jurors "can
draw their own inference about how long she would have worked,
and they can do arithmetic." When defense counsel argued that
it was necessary to reduce such a calculation to its present
value, the judge acknowledged that there was no expert testimony
in the case on that question, but that the jury could use their
common sense and common knowledge to arrive at the correct
figure. In view of the result we reach, we need not address
this issue.
21
misconduct, such as (1) referring to facts about the train crash
that were not in evidence, (2) stating that the MBTA had tried
to save money by installing a seat without a head rest, (3)
stating that the MBTA had not corrected the problems that caused
the plaintiff's injury, that the MBTA forced the plaintiff to
bring the lawsuit, and that it subjected her to unfair scrutiny,
(4) arguing that the medical evidence was that the plaintiff
lived with the daily risk of becoming a quadriplegic, and (5)
arguing that the jury "are the guardians of the safety of all of
the moms, all of the dads, and all of the children, and all of
the grandparents that ride in these trains." Instead the judge
relied upon standard language that compensatory damages are
meant to remunerate the plaintiff, not punish the defendants;
that the jurors were to decide the case based on the evidence;
that the lawyers' arguments are not evidence; and that the jury
had the right to believe or disbelieve the testimony of any
witness, including the medical experts. 16
16
For example, the judge instructed the jury that "[t]he
opening statements and the closing arguments of the lawyers are
not evidence. They're only intended to assist you in
understanding the contentions of the parties."
The judge also instructed the jury,
"You are free to reject the testimony and opinion of [an
expert] witness in whole or in part if you determine that
the witness's opinion is not based on sufficient education
and experience, or that the testimony of the witness was
motivated by some bias or interest in the case. You must
22
4. The conduct of plaintiff's counsel caused prejudicial
error. In her memorandum of decision on the defendants' motion
for a new trial or remittitur, the judge acknowledged that
plaintiff's counsel engaged in misconduct and that he lacked any
good faith basis for his actions. The judge wrote:
"The defendant[s] point[] to improprieties in the conduct
of plaintiff's counsel, particularly during opening
statement and closing argument, and suggest[] that
counsel's conduct may have led the jury to act based on
passion and prejudice rather than reason. The Court agrees
that plaintiff's counsel repeatedly exceeded well-
established boundaries in both opening and closing, as well
as in efforts to elicit evidence without any apparent good
faith basis to believe that such evidence would be
admissible." 17
also, as I have explained, keep firmly in mind that you
alone decide what the facts are. If you conclude that an
expert's opinion is not based on the facts as you find
those facts to be, then you may reject the testimony and
opinion of the expert in whole or in part. You must
remember that expert witnesses do not decide cases. Juries
do. In the last analysis, an expert witness is like any
other witness in the sense that you alone make the judgment
about how much credibility and weight you give to the
expert's testimony, and what conclusions you draw from that
testimony."
17
In a footnote, the judge was more specific:
"The most obvious example of efforts to elicit inadmissible
testimony is counsel's questioning of the plaintiff
regarding details of the conduct of the MBTA operator that
caused the collision, of which she had no personal
knowledge, and which had no relevance to damages, which was
the only issue before the jury. Examples of improprieties
in closing argument include counsel's statements that
'there could be media coverage' of the jury verdict, and
that 'you are the guardians of the safety of all of the
moms . . . .' Counsel is no novice, whose conduct might be
attributed to inexperience or inadvertence. The Court can
only infer that counsel made a calculated choice to go as
23
However, the judge ultimately concluded that the curative
instructions given to the jury sufficed to cure any prejudice to
the defendants.
(i) Standard of review. The first question we must
address is the standard of review. The plaintiff argues that
our review on appeal from the denial of a motion for a new trial
is limited to determining whether the judge abused her
discretion. See Commonwealth v. Johnson Insulation, 425 Mass.
650, 668 (1997), citing Bartley v. Phillips, 317 Mass. 35, 41-43
(1944). We show great deference to the view taken by the trial
judge in denying a new trial motion when the argument on appeal
is based on the weight of the evidence, whether the damages
awarded are excessive, or the impact of newly discovered
evidence. See, e.g., Mirageas v. Massachusetts Bay Transp.
Authy., 391 Mass. 815, 822 (1984); Robertson v. Gaston Snow &
Ely Bartlett, 404 Mass. 515, 520, cert. denied, 493 U.S. 894(1989); VanAlstyne v. Whalen, 15 Mass. App. Ct. 340, 349-350
(1983). However, this case is also before us on direct appeal
from the judgment. Therefore, the deferential standard
applicable to review of the new trial motion does not relieve us
of the duty to examine the record to determine whether
instructions that were given or not given by the judge when a
far he thought he could get away with."
24
matter was properly brought to her attention amounted to an
error of law, and to assess whether the error was prejudicial. 18
See Hart v. Morris & Co., 259 Mass. 211, 214-215 (1927).
Whether remedial instructions given during the trial in response
to an objection that is sustained or at the conclusion of the
trial during the judge's final charge are adequately curative
18
The plaintiff does not argue on appeal that the
defendants did not properly preserve for appellate review the
errors committed by her trial counsel and the adequacy of the
trial judge's response. See Mass.R.A.P. 16(a)(4), as amended,
367 Mass. 921 (1975); Mass.R.A.P. 16(b), as appearing in 411
Mass. 1602 (1992). The dissent nonetheless maintains that the
defendants have "waived" the issue of prejudice resulting from
the conduct of plaintiff's trial counsel. Post, at ____. Even
if the plaintiff had raised the issue, there is an important
distinction between a "waiver" and a "forfeiture." See Smith v.
Kmart Corp., 177 F.3d 19, 25 (1st Cir. 1999) (explaining that by
the "overwhelming weight of . . . authority," appellate courts
are authorized to apply the plain error doctrine to remedy the
consequences of egregious errors made in a closing argument
though not properly preserved); Cadorna v. City and County of
Denver, 245 F.R.D. 490, 495 (D. Colo. 2007) (waiver analysis not
appropriate; court retains power to remedy unfair prejudice
caused by improper conduct of counsel). See also Murphy v.
International Robotic Sys., Inc., 766 So. 2d 1010, 1024-1026
(Fla. 2000) (collecting cases). There are Massachusetts cases
along the same lines. See Michnik-Zilberman v. Gordon's Liquor,
Inc., 390 Mass. 6, 9-10 (1983); Flood v. Southland Corp., 416
Mass. 62, 67-68 & nn.5-6 (1993); Hatton v. Meade, 23 Mass. App.
Ct. 356, 362 (1987); Squibb v. R.M. Bradley & Co., 40 Mass. App.
Ct. 914, 915 (1996).
Although a trial judge has discretion and at times a duty
to act sua sponte to prevent and cure improper closing argument,
see Commonwealth v. Olmande, 84 Mass. App. Ct. 231, 241 n.4
(2013) (Agnes, J., concurring), counsel also have an important
role to play. Counsel not only should assist the judge by
suggesting an appropriate curative instruction, but inform the
judge why a curative instruction that is given is not adequate.
25
presents a question of law. See Goldstein v. Gontarz, 364 Mass.
at 811.
(ii) Determining whether there was prejudicial error. To
properly assess the errors committed by plaintiff's trial
counsel in this civil case, it is instructive to consider the
framework that is used to evaluate allegations of misconduct by
counsel in criminal cases, notwithstanding obvious differences
in the review that takes place in criminal appeals. We consider
"(1) whether the defendant seasonably objected; (2) whether the
error was limited to collateral issues or went to the heart of
the case; (3) what specific or general instructions the judge
gave to the jury which may have mitigated the mistake; and (4)
whether the error, in the circumstances, possibly made a
difference in the jury's conclusion." Commonwealth v. Lewis,
465 Mass. 119, 130-131 (2013), quoting from Commonwealth v.
Kater, 432 Mass. 404, 422-423 (2000). See Commonwealth v.
Kozec, 399 Mass. 514, 518 (1987). The record here indicates
that the defendants seasonably and repeatedly objected; that the
misconduct by plaintiff's counsel related to the central issues
in dispute; that although the judge responded to many of
counsel's improper statements, the corrective measures taken
were not sufficient to negate the prejudice; and that the
cumulative effect of counsel's misconduct deprived the
defendants of a fair trial. In particular, on several occasions
26
during his closing argument, plaintiff's trial counsel
challenged the judge in front of the jury as she instructed him
to confine himself to the evidence. We also attach significance
to the fact that during his closing argument to the jury,
plaintiff's trial counsel was permitted to state that in
assessing fair compensation for her injuries, the jury should
consider the possibility that at any time in the future, without
warning, the plaintiff would become a quadriplegic because "a
very thin fragile membrane," which was all that protected her
spinal column from a herniated disc, could fail to hold the disc
back from her spinal cord. This was not within the realm of a
reasonable inference from the medical evidence, and invited the
jury to speculate about the central issue in the case -- fair
compensation for the injury suffered by the plaintiff.
An isolated remark, even several remarks in a closing
argument that make reference to matters that are not in
evidence, when followed by an objection and a curative
instruction directing jurors to disregard the remark, will not
support an argument on appeal that there was prejudicial error
requiring a new trial. See, e.g., Haddad v. Wal-Mart Stores,
Inc. (No. 1), 455 Mass. 91, 112 (2009). While much is left to
the discretion of the trial judge in assessing the impact of
errors in a closing argument, see Gath v. M/A-Com, Inc., 440
Mass. 482, 495 (2003), this case stands apart from most cases in
27
which errors in a closing argument are alleged to require a new
trial. In this case, in which the evidence unfolded over the
course of only two days, the improper remarks permeated the
opening and closing arguments, with plaintiff's experienced
counsel deliberately disregarding the judge's directives and
pretrial rulings, openly arguing with her, and defiantly,
forcefully, and repeatedly making irrelevant and prejudicial
statements. 19 We do not believe the judge's final charge was
sufficient to counter the damage. See Goldstein v. Gontarz, 364
Mass. at 811. Defense counsel's numerous objections at trial,
especially during plaintiff's counsel's closing argument, were
sufficient to call the misconduct of opposing counsel to the
judge's attention and to impose on her a duty to take corrective
action. See Harlow v. Chin, 405 Mass. 697, 703 n.5 (1989); note
14, supra. While the trial judge was unfailingly patient and
issued numerous cautions to plaintiff's trial counsel, the steps
that were taken were not sufficient.
19
It is possible that even immediate curative actions would
not have been sufficient to cure the prejudice. See Hess v.
Boston Elev. Ry., 304 Mass. 535, 541 (1939). See also
Krulewitch v. United States, 336 U.S. 440, 453 (1949) (Jackson,
J., concurring). Plaintiff's counsel's open defiance was on
display throughout the trial. For example, during the testimony
of the plaintiff's former supervisor, when the judge instructed
plaintiff's counsel that he could ask the witness about the
requirements of the plaintiff's job, not about assumptions
related to her physical condition, he responded: "I think with
that restriction, Your Honor, I probably can't ask this witness
the question that the jury would like answered."
28
Our conclusion as to unremedied prejudice finds support in
the amount of the damages awarded by the jury. In denying the
defendants' motion for a new trial or remittitur the judge
reasoned in part that relief was unwarranted because the $1.228
million damages award was not disproportionate to the evidence.
Although we are not prepared to say that the judge abused her
discretion in denying remittitur, 20 we take the view that because
the amount awarded seems to lie in the upper range of what may
be borne by the evidence, it suggests a significant risk that
the jury's assessment of damages was affected by the numerous
improprieties of plaintiff's counsel. 21 Perhaps chief among
20
On the other hand, based on the evidence, the judge was
not foreclosed from taking the opposite course.
21
We note here our misgivings about the judge's rough
estimate that "the jury could fairly have assessed the value of
the plaintiff's lost earnings and loss of earning capacity in an
amount in the range of one million dollars." The judge based
her calculation on what she took as the plaintiff's annual
salary at Delta as a gate agent prior to the trolley crash
($40,000), added to it the plaintiff's estimate of the annual
cost of obtaining the equivalent of the private health insurance
she lost ($12,000), and multiplied the sum by twenty based on
the assumption that the plaintiff would have continued working
at that rate for another twenty years but for the injuries she
suffered in the trolley crash. The evidence was that the
plaintiff could earn up to $40,000, but does not permit the
assumption that her wages at the time of the collision were in
that amount. The evidence showed that working for Delta, the
plaintiff earned $26,000 in 2006, $33,000 in 2007, and almost
$33,000 in 2008. In 2009 before the crash, the plaintiff took
advantage of a Delta furlough program, which permitted gate
agents to take unpaid leaves of absence, as soon as the program
became available. In fact, the plaintiff applied to extend her
leave of absence beyond April, 2009, and was granted another
29
these is the argument by counsel that the plaintiff would live
every remaining day of her life with the real possibility of
becoming a quadriplegic, where there was no record evidence to
support such speculation.
The judge reasoned in part that "the consequences of
counsel's fault should not be visited on his client." However,
that is not the question before us. Ultimately, the question
before us is whether there was an unacceptable risk that
plaintiff's counsel's misconduct had a material effect on the
jury's decision. Application of the prejudicial error standard
under G. L. c. 231, §§ 119, 132, requires us to undertake a
case-by-case analysis. The substantial rights of a party are
adversely affected when, "viewing the record in a commonsense
way," the misconduct of a party or counsel "could have made a
material difference" in the outcome. DeJesus v. Yogel, 404
Mass. 44, 48 (1989). Here, the jury were asked only to
determine the cause, nature, and extent of the plaintiff's
injuries and to assign to those attributable to the negligence
unpaid leave for May, 2009, prior to the collision. The Delta
representative could not explain other records indicating that
the plaintiff was working during the first week of May, 2009.
Moreover, putting aside whether there was any evidence that the
plaintiff intended to work until age sixty-five, there was
evidence that she could have worked in other capacities at Delta
in the Boston area such as an outside sales representative, but
that she arbitrarily decided she was unsuited for such work.
Also, there was evidence that the plaintiff worked part-time as
a hostess and that during 2011 she earned $15,000.
30
of the defendants a dollar value that would represent fair
compensation to the plaintiff. We think that plaintiff's trial
counsel's numerous inflammatory remarks and efforts to inject
facts beyond the record into the trial, especially unfounded
statements about the plaintiff's risk of future harm and the
defendant MBTA's indifference to rider safety, could have
influenced the jury's decision-making process, and thus deprived
the defendants of a fair trial. The sheer number of counsel's
acts of misconduct cannot be minimized or overlooked. See
Williams v. Drake, 146 F.3d 44, 49 (1st Cir. 1998)
("[I]ndividual miscues, while insufficient in themselves to
warrant a new trial, [may] have an aggregate effect that impugns
the fairness of the proceedings and thus undermines the
trustworthiness of the verdict"). See also Leone v. Doran, 363
Mass. 1, 6, S.C., 363 Mass. 886 (1973). Although the judge
sustained numerous objections, told the jury that argument by
the lawyers was not evidence, and gave jurors cautionary
instructions about some of counsel's improper statements, the
rubric that jurors are presumed to follow the judge's
instructions does not mean that a curative or cautionary
instruction always suffices to remove the stain of what
otherwise would be prejudicial error. See Allen v. Boston Elev.
Ry., 212 Mass. 191, 194 (1912).
31
Conclusion. It is instructive to consider the observation
made by the United States Court of Appeals for the First Circuit
in Polansky v. CNA Ins. Co., 852 F.2d 626, 632 (1st Cir. 1988):
"[W]e do not view favorably any attempt 'to play fast and
loose' with our judicial system. Too often a lawyer loses
sight of his primary responsibility as an officer of the
court. While he must provide 'zealous advocacy' for his
client's cause, we encourage this only as a means of
achieving the court's ultimate goal, which is finding the
truth. Deceptions, misrepresentations, or falsities can
only frustrate that goal and will not be tolerated within
our judicial system." (Citations and footnote omitted.)
Ultimately, we conclude that the judge's efforts to address the
numerous and repeated violations of the law by plaintiff's trial
counsel fell short. We cannot say "with substantial confidence"
that the errors committed by plaintiff's counsel did not make a
material difference in the outcome. DeJesus v. Yogel, 404 Mass.
at 49. Accordingly, we vacate the judgment and remand the case
for a new trial. 22
So ordered.
22
The plaintiff argues on appeal that she is entitled to
the costs of the action below. We need not reach this issue, in
part because the plaintiff did not appeal from the judgment,
which omitted costs. At any rate, the plaintiff is not entitled
to costs because she filed her action after November 1, 2009,
when the MBTA became a public employer and therefore immune from
the award of interest and costs accruing on or after that date.
Smith v. Massachusetts Bay Transp. Authy., 462 Mass. 370, 371,
380 (2012).
GRAHAM, J. (dissenting). At trial, the sole issue for the
jury was the amount of the plaintiff's damages. The evidence
presented by the plaintiff was as follows. Dr. Francis Rockett,
a neurosurgeon employed at the Newton-Wellesley Hospital,
testified that the accident caused the plaintiff to suffer the
herniation of the disc between her fourth and fifth cervical
vertebrae. The pressure of the disc against ligaments in her
spine and a left-sided nerve root caused her to have pain in the
affected areas when she engaged in various activities and
prevented her from lifting heavy objects, performing yard work,
or carrying large items. Dr. Rockett opined that, as a result
of the accident, the plaintiff was disabled permanently from her
job as a Delta Airlines customer gate agent.
The plaintiff, a forty-six year old woman employed by Delta
Airlines for twenty-three years at the time of the accident, had
an annual salary at the time of the accident of approximately
$40,000 per year, with annual raises of approximately four per
cent available in each of the three years after the accident. 1
In addition, the plaintiff received free travel benefits for
herself and her family, paid vacation time, and ten paid
holidays per year, together with medical insurance, life
1
Pursuant to Delta Airlines policy, if a gate attendant was
not needed at the end of a shift, the attendant could leave work
early and forfeit pay for the hours of work missed. Before the
train crash in 2009, the plaintiff at times took advantage of
that policy, reducing her income somewhat as a result.
2
insurance, and pension benefits. The medical benefits alone
were worth more than $12,000 per year.
Both the plaintiff and her husband testified regarding the
physical and emotional effects of the accident on the plaintiff.
Each testified that the accident impaired the plaintiff's
ability to participate in her previous activities and diminished
her quality of life.
The defense relied on cross-examination of the plaintiff's
witnesses, seeking to impeach their credibility. In addition,
the defense presented testimony, via videotape, from Dr. Joseph
D'Alton, a doctor who had neither examined nor treated the
plaintiff. The trial was short and presented a classic case of
credibility for the jury to determine.
While acknowledging the improprieties in the conduct of
plaintiff's counsel, the judge, in light of her curative
instructions, was "not persuaded that the jury's verdict
reflects anything other than its permissible judgment of the
credible evidence." In rejecting the defendant's motion for new
trial or remittitur, the judge determined that the jury could
fairly have assessed the plaintiff's economic losses "in the
range of one million dollars" and, in addition, "could properly
have awarded a substantial additional amount for physical and
emotional pain and suffering."
3
In my view, the motion judge, who was also the trial judge,
did not abuse her considerable discretion in denying the motion.
I would defer to her view. See Gath v. M/A-Com, Inc., 440 Mass.
482, 495 (2003) ("The judge was in the best position to evaluate
the effect on the jury of the improper argument").
The majority of the court, hesitant (and properly so) to
say outright that the judge abused her discretion, instead turns
to the prejudicial error standard as its basis for overturning
the judgment on the direct appeal. That analysis is flawed for
several reasons. At the threshold, the defendants did not
preserve for appeal their arguments about uncured prejudice from
plaintiff's counsel's antics. Their contemporaneous objections
alone were not enough: once the defendants' objections were
sustained, they did not ask for specific curative instructions,
and when the judge gave her own curative instructions, the
defendants did not object or request any additional instructions
or actions. Tellingly, at no time did defense counsel move for
a mistrial. Finally, defense counsel did not object after the
final jury charge was given, instead pronouncing himself
satisfied. The issue of the sufficiency of the judge's
instructions (or claimed insufficiency) has been waived. See
Boston Edison Co. v. Massachusetts Water Resources Authy., 459
Mass. 724, 740 (2011), citing Mass.R.Civ.P. 51(b), 365 Mass. 816(1974) (failure to object to the giving or omission of
4
instructions at trial waives right to claim error on appeal). 2 I
am concerned that the court, by relying on waived issues to
upend a trial judge's discretionary determination in a civil
case, has strayed too close to the restraining line between
error correction and substitution of judgment.
Waiver of the issues aside, I am also persuaded that the
majority has overestimated the prejudice caused by plaintiff's
counsel's actions, inexcusable though they were. A number of
factors suggest an insignificant risk that the jury were
inflamed or distracted. (1) The trial was clearly focused
solely on the issue of damages -- the stipulation to liability
was emphasized to the jury throughout the trial. (2) The vast
majority of the evidence went in without objection or
controversy, whereas the inadmissible evidence was only a small
part and passed quickly. (3) Although there were opposing
2
Similarly waived is any argument relying on the
sufficiency of the evidence of damages. The defendants neither
moved for a directed verdict nor for judgment notwithstanding
the verdict (judgment n.o.v.). See Hatton v. Meade, 23 Mass.
App. Ct. 356, 361 (1987) ("[W]here a losing party has not moved
for a directed verdict at the close of all the evidence,
[Mass.R.Civ.P. 50(b), 365 Mass. 814 (1974),] not only precludes
[a] the granting to that party of a motion for judgment n.o.v.,
but also [b] appellate review of the sufficiency of the evidence
to support the verdict"). The argument that there was
insufficient evidence to support an award of lost earning
capacity is therefore waived -- the judge told the parties that
she would allow the jury to use their own common sense about how
long the plaintiff would continue to work, and the defendants
did not object. Nor did they object when she told them that she
would allow the jury to discount to present value in the absence
of expert testimony on how to perform such a calculation.
5
experts, the plaintiff's expert testified live and the
defendants' did not. Testimony presented by video recording or
transcript is often less effective than live testimony.
Moreover, the plaintiff's expert had personally examined the
plaintiff, while the defendants' expert had not. (4) The
husband's testimony was extremely affecting -- it painted a
moving picture of a woman whose life activities have been
seriously curtailed by the train crash. A significant portion
of the undifferentiated damages award may have related to this
suffering. (5) The defendants' tactical decision to call the
plaintiff's Delta Airlines supervisor to the stand clearly
backfired. His testimony favored the plaintiff, including
vouching for her value as a long-time employee. (6) The trial
judge allowed the jurors to ask questions after each witness's
testimony and those questions reveal a focus only on pertinent
issues. (7) The jury did not rush to a verdict. They
deliberated for one hour after the closings and returned to
deliberate for almost a full additional day. Considering that
the trial was short, this was a long deliberation -- which
undercuts the notion that the jury were inflamed by plaintiff's
counsel. (8) Finally, I am inclined to believe that the
judge's interventions with the jury had more curative value than
the majority is willing to recognize.
I respectfully dissent.