Baudanza v. Comcast of Massachusetts I

• Decision Date: 04 September 2009
• Docket Number: SJC-10320
• Citation: 912 N.E.2d 458,454 Mass. 622
• Parties: Robert M. BAUDANZA v. COMCAST OF MASSACHUSETTS I, INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

912 N.E.2d 458

454 Mass. 622

Robert M. BAUDANZA v. COMCAST OF MASSACHUSETTS I, INC.

SJC-10320

Supreme Judicial Court of Massachusetts, Middlesex.

Argued April 9, 2009.

Decided September 4, 2009.

Stephen C. Pfaff, Boston, for the defendant.

Robert W. Casby, Boston (G. Thomas Pauling with him) for the plaintiff.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

BOTSFORD, J.

When a party accepts an order for addition or additur to a jury's award of damages issued by a judge pursuant to Mass. R. Civ. P. 59(a), 365 Mass. 827 (1974), may that party thereafter appeal from the order? We conclude that a party who accepts such an order, or an order for remittance or remittitur, may not thereafter bring such an appeal. Because the rule barring the appeal may not have been clear in the past, we consider the substantive arguments that the defendant, who accepted an order for additur in this case, raises in its appeal. Concluding that they lack merit, we affirm the judgment in favor of the plaintiff and the judge's additur order.

1. Background. On the morning of December 5, 2003, a service truck owned by the defendant, Comcast of Massachusetts I, Inc. (Comcast), and driven by its employee, Jason Gulinello, struck the driver's side of an automobile driven by the plaintiff, Robert M. Baudanza, in an intersection in Billerica. Baudanza was very seriously injured in the accident. In 2004, he brought a negligence action against Comcast and Gulinello in the Superior Court.¹ The case was tried before a jury in February, 2008. The contested issues at trial were whether Comcast's employee operated the truck negligently by driving at excessive speed and failing to see Baudanza's vehicle enter the intersection, and whether Baudanza operated his own vehicle negligently by entering the intersection without stopping.

In support of its theory that Baudanza himself had been negligent, Comcast sought to call an expert witness, Dr. Mervyn W. Perrine, to offer opinion testimony at trial concerning his calculation of Baudanza's blood alcohol content or concentration (BAC)—the percentage concentration of alcohol in a specified quantity of whole blood—at the time of the accident, and that the level of alcohol in Baudanza's blood was a contributing cause of the accident. Based on a voir dire examination of Perrine that was conducted immediately before the start of the trial, the judge excluded Perrine's testimony on the ground that the causation opinion being proffered was too speculative to warrant admission.

Uncontested evidence at trial established that, as a result of the accident, Baudanza suffered multiple fractured ribs, creating a serious condition known as "flail chest"; a collapsed left lung; a subdural hematoma; fractured front teeth; a ruptured spleen and lacerated pancreas; and a ruptured diaphragm. His initial stay in the hospital lasted eighteen days, during which he underwent two surgeries. He later returned to the hospital for five days to treat an abscess resulting from surgery, and again to treat deep venous thrombosis resulting from loss of his spleen. Baudanza testified without contradiction that he was limited to two hours of sleep per night because he was required to sleep sitting up, and that he continued to have constant pain. Counsel for Comcast conceded that the injuries Baudanza suffered as a result of the accident were "horrific" and put Baudanza through "hell."² Baudanza incurred medical expenses in the amount of $193,278.93.

Baudanza's medical records, which were submitted to the jury, indicated that he was medicated for "probable alcohol withdrawal" on December 10, 2003, five days into his first hospital stay, after he became irritable and combative with hospital staff.³ Another physician's note two days later, however, indicated that Baudanza "probably was not at risk" for alcohol withdrawal (emphasis in original). Baudanza was prescribed Narcan on the day of the accident, December 5, and again on December 17; Narcan is a medication that can be prescribed for excess alcohol consumption, among other reasons. No evidence was offered as to the reason Baudanza was given Narcan, and Comcast did not call an expert witness with respect to the extent or cause of Baudanza's injuries or potential alcohol withdrawal.

In his instructions to the jury, the judge included an instruction on comparative negligence, and explained that, if the jury assigned a percentage share of negligence greater than fifty per cent to the plaintiff, he would not recover any damages. The judge also instructed that, if the jury found Comcast's employee negligent, they should calculate damage amounts for "medical expenses, permanent conditions, lost earning capacity, and pain and suffering past, present and probable in the future," and "add up each of these four categories to arrive at the total award for the plaintiff." The verdict slip did not require the jury to indicate separately the figure calculated in each category.

The jury found that Comcast's driver was fifty per cent negligent; found that Baudanza was fifty per cent negligent; and granted a total damage award of $193,278.93—the precise amount of the medical bills. Judgment entered for Baudanza in the amount of $96,639.47, plus interest and costs, the amount awarded by the jury reduced by Baudanza's percentage share of negligence. Baudanza moved for a new trial on damages, arguing that the jury had failed to award damages for pain and suffering, permanent loss of bodily function, and diminished earning capacity. The judge granted the motion in part and denied it in part. He interpreted the jury's damage award of $193,278.93 to have been intended solely for medical expenses, and reasoned that the jury had therefore declined to give any award for pain and suffering or for loss of bodily function or earning capacity. The judge then concluded that, while the jury's failure to award damages for permanent loss of bodily function or reduction in earning capacity was arguably reasonable, their decision to give no pain and suffering damages was not, given the plaintiff's severe and uncontested injuries. The judge found that damages for pain and suffering in the amount of $400,000 would have been reasonable and, pursuant to rule 59(a), ordered a new trial unless Comcast accepted an addition to the verdict of $200,000. Comcast accepted the additur, and an amended judgment entered for Baudanza in the amount of $296,639.47, plus interest and costs. Thereafter, Comcast appealed from the judgment and the order conditionally allowing the motion for new trial on damages. We transferred the case to this court on our own motion.

2. Discussion. a. Defendant's ability to appeal after accepting additur. Baudanza argues that Comcast waived its right to appeal from the judge's grant of a new trial subject to additur when Comcast chose to accept the additur. Posttrial amendment of a judgment is governed by rule 59(a), which provides in relevant part:

"A new trial shall not be granted solely on the ground that the damages are excessive until the prevailing party has first been given an opportunity to remit so much thereof as the court adjudges is excessive. A new trial shall not be granted solely on the ground that the damages are inadequate until the defendant has first been given an opportunity to accept an addition to the verdict of such amount as the court adjudges reasonable."

We have not yet had occasion to consider directly whether a defendant may accept an additur, and then appeal from the amount of additur or the determination by a judge that the jury's award of damages was inadequate. In Moran Travel Bur., Inc. v. Clair, 12 Mass.App.Ct. 864, 421 N.E.2d 103 (1981), the Appeals Court held that a plaintiff, having accepted a remittitur on which the trial judge conditioned allowance of the defendant's new trial motion on damages, was precluded from appealing from the conditional remittitur order. Id. at 865, 421 N.E.2d 103, citing Donovan v. Penn Shipping Co., 429 U.S. 648, 649-650, 97 S.Ct. 835, 51 L.Ed.2d 112 (1977), where the United States Supreme Court reaffirmed "[a] line of [Federal] decisions stretching back to 1889 [that] has firmly established that a plaintiff cannot appeal the propriety of a remittitur order to which he has agreed."⁴ Comcast does not question the Appeals Court's holding but argues, without explanation, that the rule should be different for additur than remittitur. We disagree.

At least two rationales support the rule against appeal after accepting a modification to the judgment. First, additur and remittitur serve the beneficial goal of "securing substantial justice between the parties without the burdensome costs, delays and harassments of new trials." Freeman v. Wood, 379 Mass. 777 782, 401 N.E.2d 108 (1980), quoting Fisch v. Manger, 24 N.J. 66, 72, 130 A.2d 815 (1957). It would defeat that purpose to allow a party to accept a modification of the damage award, and nevertheless continue litigation on the issue of damages. See Lewis v. Wilson, 151 U.S. 551, 555, 14 S.Ct. 419, 38 L.Ed. 267 (1894) ("A man may continue litigation, and stand on his rights, or he may waive some of his rights for the sake of terminating litigation ..."). Second, courts have rejected efforts to secure such a judgment and then seek a better judgment on appeal; additur and remittitur are mechanisms by which parties may secure a judgment with a definite floor or ceiling on damages, without the risk and uncertainty of a new trial. See Woodworth v. Chesbrough, 244 U.S. 79, 82, 37 S.Ct. 583, 61 L.Ed. 1005 (1917) (plaintiff may not "secure[] a judgment [by remittitur] and yet seek[] to retract the condition upon which it was obtained"); Semrau v. Herrick, 72 Conn.App. 327, 333-334, 805 A.2d 125 (2002) ("[T]he defendant's action [of accepting additur] may be seen as an attempt to fix the maximum amount for which she can be held liable while seeking to restore...