DAVID L. WINN v. MADISON SECURITY GROUP, INC., & Others.

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-70
DAVID L. WINN
vs.
MADISON SECURITY GROUP, INC., & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This case arises from the award of compensatory and
punitive damages following a jury trial on a claim for
employment discrimination. The plaintiff, David Winn, is a
double amputee who lost his position as a security guard at the
defendant company,2 Madison Security Group, after undergoing a
surgery and being unable to use his prosthetic legs for a period
of time.3 On appeal, the defendants argue that (1) their request
1 Angela Culot, who was later dismissed voluntarily, and Michael
J. Svizzero.
2 Codefendant Michael J. Svizzero was Madison Security Group's
vice president of operations when the alleged discrimination
occurred.
3 The plaintiff testified as to the extent and origin of his
disability. He was burned at the age of twelve, and his legs
were amputated as a result of the burns and infection. He
adapted well, however, and "did everything in my wheelchair that
I could have done . . . if I had my legs." He is, inter alia,
able to traverse stairs without the use of prosthetics and drag
his wheelchair behind him.
for a mistrial should have been granted after the plaintiff
asked a series of unfairly prejudicial questions to a witness
during trial, (2) the punitive damage award was both unsupported
by the evidence and unconstitutional, and (3) their request for
a new trial or judgment notwithstanding the verdict should have
been granted. We affirm.
Discussion. 1. Request for mistrial. We first address
the defendants' argument that the trial judge erred in not
granting their motion for a mistrial after an attorney for the
plaintiff pursued an improper line of questioning.4 While we
agree that the questions were improper, we conclude that the
steps taken by the judge toward addressing the infraction were
sufficient to cure any potential prejudice to the defendants,
and that there was no error in denying the motion for mistrial.
It is well established that "trial judges must take care to
avoid exposing the jury unnecessarily to inflammatory material
that might inflame the juror' emotions and possibly deprive the
defendant of an impartial jury." Commonwealth v. Berry, 420
Mass. 95, 109 (1995). See also Mass. G. Evid. § 403 (2022).
However, "[a] trial judge may attend to complaints in the
4 While questioning Svizzero regarding an alleged communication
made by another employee of Madison Security Group, the
plaintiff asked a series of questions regarding pending rape
charges against that employee. The defendants promptly
objected, and the trial judge sustained those objections.
2
admission of irrelevant or prejudicial evidence during trial by
excising such evidence and by giving a careful, forceful
instruction to the jury to disregard those matters withdrawn
from their consideration." Harris-Lewis v. Mudge, 60 Mass. App.
Ct. 480, 490 (2004). "We review a judge's decision not to
declare a mistrial for abuse of discretion." Evans v. Lorillard
Tobacco Co., 465 Mass. 411, 459 (2013), citing Fialkow v. DeVoe
Motors, Inc., 359 Mass. 569, 572 (1971).
On appeal, the parties do not dispute that the questions
posed by the plaintiff's attorney were impermissible. The judge
responded to the improper questions by sustaining the objections
and by issuing a contemporaneous instruction to the jury that
they should disregard the questions, and by reiterating that
curative instruction during his final jury instructions.5 Both
5 Immediately following the improper questions, the judge
instructed the jury:
"The other thing we were talking about, as you might
expect, has to do with when can someone talk about [] the
trustworthiness of someone who's not here in the courtroom?
And the answer is almost never, with rare exception because
we don't allow witnesses to vouch or criticize other
people, as a general rule. So as a general rule we don't
ask questions about people who aren't in the witness stand.
As a second general rule, there are very limited
circumstances where information not related to this dispute
can come in concerning someone's character. When you talk
about criminal charges, or pending charges, or allegations,
that doesn't have anything to do with this dispute, it has
to do with someone's trustworthiness. On rare occasions if
a person is in the witness stand you may be able to get
into those types of questions. That is not the case here
3
instructions were thorough and reminded the jury to ignore the
questions because they were against court rules. We "presume[]
because we're talking about a person that's not here in the
courtroom, and we're talking not about a conviction but an
allegation or a charge. And that is just not permitted.
"So I'm going to ask you to strike those questions you
heard that made any reference -- strike from your mind, and
not play any role whatsoever in your decision deciding the
case the question you heard from Mr. Martin about something
about alleged rape or attempted rape, which I know nothing
about. If I did I probably wouldn't tell you any more
about it anyway, but I know nothing about that, don't know
if it's true, et cetera. But more important, we don't ask
witnesses about other witnesses, let alone about alleged
criminal charges."
During the final jury instructions, the judge said:
"So I've told you several times to make sure your verdict
is based on the evidence. Let me tell you what the
evidence is. The evidence consists of the testimony of
witnesses as you recall it and the things that have been
marked as exhibits. You'll have those exhibits with you in
the jury room. Other things are not evidence and you
should not consider them. Questions from the lawyers are
not evidence. It's the answers that matter. If a lawyer
asked a question and I sustained an objection and it wasn't
answered, then neither the question nor the fact that the
witness did not answer is not evidence. If I struck any
evidence or told you to disregard it, or any part of an
answer by a witness, that part of the testimony is not
evidence and shouldn't be considered. You'll recall in
this case that I instructed you to disregard a few
questions a couple days ago that the plaintiff's counsel
posed because they concerned things that I determined are
entirely unrelated to the case and to the issues you have
to decide. Counsel shouldn't have asked those questions.
It's essential that you stay focused on the issues that do
matter and the evidence that was admitted in the case. For
that reason you should follow my instructions to strike
those improper questions and any matters raised by those
questions. They were a violation of the rules and you
should put them out of your mind."
4
that such [instructions are] followed by the jury." Harris-
Lewis, 60 Mass. App. Ct. at 490. The defendants argue that we
should conclude the jury did not follow the trial judge's
instruction because its award of punitive damages was excessive,
but for reasons discussed infra, we disagree and decline to do
so.6
2. Punitive damages. We next address the defendants'
challenges to the sufficiency of the evidence supporting a
punitive damage award and the constitutionality of the punitive
damages awarded in this case. The defendants argue both that
(1) the evidence was insufficient to support the punitive damage
award and (2) the punitive damage award was unconstitutional.
We disagree on both fronts.
a. Sufficiency of the evidence. "[P]unitive damages may
be awarded for conduct that is outrageous, because of the
defendant[s'] evil motive or [their] reckless indifference to
the rights of others" (citation omitted). Haddad v. Wal-Mart
Stores, Inc., 455 Mass. 91, 107 (2009). "Punitive damages are
6 We note the defendants' argument that the trial judge
improperly referenced a news article he discovered on the
Internet, which was not in evidence, before ruling on their
renewed motion for a mistrial. Because the issue was not raised
in the trial court, either at trial or in the defendants'
posttrial motions, it is waived on appeal. See Cottam v. CVS
Pharmacy, 436 Mass. 316, 323 (2002). We further note that the
defendants did not object to either curative instruction, so
their arguments in that respect are similarly waived. Id.5
warranted where the conduct is so offensive that it justifies
punishment and not merely compensation." Charles v. Leo, 96
Mass. App. Ct. 326, 345 (2019), quoting Haddad, supra at 110.
An award of punitive damages requires a determination of the
defendants' intent or state of mind, determinations properly
left to the jury, whose verdict should be sustained if it could
reasonably have been arrived at from any evidence presented.
See Haddad, supra at 107.
Here, the record is replete with evidence allowing the jury
to reasonably conclude that the defendants were recklessly
indifferent to the rights of the plaintiff. The plaintiff was
highly motivated and sought to return to work quickly after his
surgery. Although the defendants did engage with the plaintiff
regarding an alternate work placement, their effort was
lackluster. They repeatedly declined to allow him to
demonstrate his ability to perform the requirements of his
position and failed to contact the Division of Capital Asset
Management and Maintenance (DCAMM) to discover whether it was
possible for him to continue to work at his initial jobsite.7
Despite the plaintiff's earnest efforts and apparent ability to
work, the defendants did not allow him to do so due to his
7 Although Svizzero attempted to testify that he only failed to
contact DCAMM because he thought another Madison executive had
done so, that answer was struck from the record and was not
before the jury and therefore we do not consider it.
6
disability. Although the defendants presented a different
interpretation of the evidence at trial and in briefing to this
court, the jury were free to arrive at their own conclusion.8
See DaPrato v. Massachusetts Water Resources Auth., 482 Mass.
375, 392-393 (2019).
b. Amount of punitive damages. To the extent that the
defendants argue that the punitive damage award was
unconstitutionally high, we review the issue de novo. See
Charles, 96 Mass. App. Ct. at 352 n.15 (review of remittitur in
punitive damages context is de novo). See also Cooper Indus. v.
Leatherman Tool Group, Inc., 532 U.S. 424, 431 (2001) (de novo
review in federal context).
Having done so, we discern no constitutional bar to the
punitive damages awarded in this case. To support their
argument that the award was unconstitutional, the defendants
rely heavily on the high ratio of punitive damages as compared
to compensatory damages.9 It is true that "[t]he principle that
exemplary damages must bear a 'reasonable relationship' to
compensatory damages has a long pedigree." BMW of N. Am., Inc.
8 We note and agree with the trial judge, in his decision and
order on the defendants' posttrial motions, that "Madison's
wholesale avoidance of Winn's requests and its obligations under
discrimination law, could support a high level of
reprehensibility."
9 The plaintiff was awarded $7,688 as compensatory damages for
back pay and $300,000 as punitive damages.
7
v. Gore, 517 U.S. 559, 580 (1996). However, the Supreme Court
has "consistently rejected the notion that the constitutional
line is marked by a simple mathematical formula, even one that
compares actual and potential damages to the punitive award"
(emphasis omitted). Id. at 582. "Indeed, low awards of
compensatory damages may properly support a higher ratio than
high compensatory awards, if, for example, a particularly
egregious act has resulted in only a small amount of economic
damages." Id. As discussed supra, the jury were free to
conclude that the defendants' discrimination against the
plaintiff was egregious.
We further note that the plaintiff, a highly motivated
individual, took actions that may have minimized the
compensatory damages awarded to him. After losing his
employment with the defendants, he quickly found a new job,
meaning that his lost wages were less than they might have been
otherwise. Further, the trial judge observed the plaintiff to
have made a "stoic presentation at trial," which may have
reduced his compensatory damages for emotional harm. These
facts do not lessen the egregiousness of the defendants'
discrimination against the plaintiff, though they may have
8
resulted in an increased ratio of justified punitive damages
relative to compensatory damages.10
3. Posttrial motions. Finally, we address the defendants'
argument that the trial judge erred by denying their posttrial
motions. Following the entry of judgment, the defendants moved
for, inter alia, judgment notwithstanding the verdict and a new
trial. They argued that there was insufficient evidence to
support the jury's conclusion that they engaged in unlawful
discrimination against the plaintiff. We disagree.
a. Motion for a new trial. "The grant or denial of a new
trial . . . will only be disturbed if the judge has abused his
discretion." Turnpike Motors, Inc. v. Newbury Group, Inc., 413
Mass. 119, 127 (1992). See Wahlstrom v. JPA IV Mgt. Co., 95
Mass. App. Ct. 445, 448 (2019). "[T]he judge should only set
aside the verdict if satisfied that the jury failed to exercise
an honest and reasonable judgment in accordance with the
controlling principles of law" (quotations and citation
omitted). Turnpike Motors, Inc., supra. "[A] judge should
exercise this discretion only when the verdict 'is so greatly
10The defendants also argue that the award of punitive damages
was unconstitutional because the plaintiff did not demonstrate
that their conduct amounted to "reckless indifference" regarding
the plaintiff's rights. See Labonte v. Hutchins & Wheeler, 424
Mass. 813, 826 (1997) (punitive damages permitted only in case
of outrageous conduct, evil motive, or reckless indifference to
rights of others). However, there was ample evidence at trial
to support such a conclusion.
9
against the weight of the evidence as to induce in his mind the
strong belief that it was not due to a careful consideration of
the evidence, but that it was the product of bias,
misapprehension or prejudice.'" Id., quoting Scannell v. Boston
Elevated Ry., 208 Mass 513, 514 (1911).
We agree with the trial judge that, in this context, the
defendants' "challenge[] turn[s] on re-arguing the evidence."
Despite the defendants' assertion otherwise, the jury were
equipped with ample evidence to permit them to conclude that the
defendants were aware of their obligation to engage in an
interactive process with the plaintiff but failed to
meaningfully do so. We discern no abuse of discretion in
denying the motion for a new trial.
b. Judgment notwithstanding the verdict. In reviewing the
denial of a motion for judgment notwithstanding the verdict, we
"evaluate whether 'anywhere in the evidence, from whatever
source derived, any combination of circumstances could be found
from which a reasonable inference could be made in favor of the
[nonmovant].'" O'Brien v. Pearson, 449 Mass. 377, 383 (2007),
quoting Turnpike Motors, Inc., 413 Mass. at 121.
As has been previously discussed, "the evidence presented
to the jury [was] sufficient to warrant denial of the
defendants' motion[] for . . . judgment notwithstanding the
verdict." O'Brien, 449 Mass. at 383.
10
4. Attorney's fees. The plaintiff requests that we award
attorney's fees for defending this appeal. General Law c. 151B,
§ 9, provides for the mandatory award of attorney's fees, and
that provision "would ring hollow if it did not necessarily
include a fee for the appeal." McLarnon v. Jokisch, 431 Mass.
343, 350 (2000), quoting Yorke Mgt. v. Castro, 406 Mass. 17, 20
(1989). Accordingly, we award the plaintiff reasonable
attorney's fees and costs. "[The plaintiff] may file [his]
application for fees and costs, with any appropriate supporting
materials, with the clerk of the [Appeals Court] within fourteen
days of the date of the rescript." Fabre v. Walton, 441 Mass.
9, 11 (2004). The defendants may respond to the petition within
fourteen days of said filing.
Amended judgment affirmed.
Order on posttrial motions
affirmed.
By the Court (Wolohojian,
Blake & Desmond, JJ.11),
Clerk
Entered: April 24, 2023.
11 The panelists are listed in order of seniority.
11