Beaupre v. Smith & Assoc., P-100

• Citation: 50 Mass.App.Ct. 480,738 N.E.2d 753
• Decision Date: 05 May 2000
• Docket Number: P-100
• Parties: (Mass.App.Ct. 2000) MARY KELLIE BEAUPRE vs. CLIFF SMITH & ASSOCIATES & another. <A HREF="#fr1-1" name="fn1-1">1 98- Middlesex County Argued:
• Court: Appeals Court of Massachusetts

738 N.E.2d 753 (Mass.App.Ct. 2000)

MARY KELLIE BEAUPRE vs. CLIFF SMITH & ASSOCIATES & another.¹

98-P-100.

Massachusetts Court Of Appeals

Middlesex County

Argued: May 5, 2000

Decided: November 16, 2000.

Employment, Discrimination, Sexual harassment. Anti-Discrimination Law, Termination of employment, Sex, Burden of proof, Individual liability, Damages. Practice, Civil, Challenge of jurors, Judicial discretion, Directed verdict, Instructions to jury. Witness, Expert. Damages, Under anti-discrimination law

Civil action commenced in the Superior Court Department on April 16, 1993.

The case was tried before Herman J. Smith, Jr., J.

Raymond J. Reed for Cliff Smith & Associates.

Paul M. Stein for Clifford F. Smith.

Laura R. Tuden for the plaintiff.

Kass, Laurence, & Duffly, JJ

LAURENCE, J.

The defendants, Cliff Smith & Associates (CSA)² and Clifford F. Smith (CSA's president and controlling shareholder), appeal from verdicts and damage awards by a Superior Court jury in favor of a former employee, the plaintiff, Mary Kellie Beaupre. The plaintiff had commenced suit in April, 1993, on a complaint alleging that her discharge from CSA in September, 1992, was motivated by unlawful sex discrimination in violation of G. L. c. 151B, 4,³ in the form of sexual harassment of both the "quid pro quo" and "hostile work environment" varieties (see G. L. c. 151B, 1[18]; Ramsdell v. Western Mass. Bus Lines, Inc., 415 Mass. 673, 677 [1993]; Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65-66 [1986]).⁴ The defendants assign several errors on appeal: the judge's supposed limitation of their peremptory jury challenges; the judge's allowance at trial of previously undisclosed expert opinion testimony by the plaintiff's treating psychiatrist; the judge's denial of their motions for directed verdict and judgment notwithstanding the verdict (challenging the sufficiency of the plaintiff's sexual harassment case); the verdict of individual liability against Smith; and the excessiveness of the damage awards generally, and the award of punitive damages against Smith individually in particular.

We affirm.

1. Peremptory challenges. The defendants assert that they were erroneously deprived of four peremptory challenges during jury empanelment.⁵ The record, however, does not support their contention. Indeed, they did not properly preserve the issue for appeal. The record reflects no statement or action by the judge regarding the number of challenges each party was allowed, nor the judge's rejection of any attempted exercise of additional challenges by the defendants, nor any defense objection to any aspect of the jury selection process. For all we know from the record, had either of the defendants wished to challenge additional jurors peremptorily, the judge would have allowed it. Their appellate claim that any further challenges by them would have been futile is entirely speculative. That they essayed no such additional challenges more likely shows that they in fact had none. The record reveals that both CSA and Smith informed the judge that they were content with the jury. Nothing on the record suggests any error or abuse with respect to the "trial judge['s] . . . large degree of discretion in the jury selection process." Commonwealth v. Benjamin, 430 Mass. 673, 675 (2000).⁶

Moreover, "the denial of the correct number of peremptory challenges [does not] constitute[] by itself ground for reversal . . . ." Andras v. Marcyoniak, 13 Mass. App. Ct. 1043, 1043 (1982). Neither CSA nor Smith has shown, as they must even if an error in this regard occurred, that "the ruling affected the jury's verdict in some material way." Id. at 1044. The lack of the requisite prejudice is seen in the failure of CSA and Smith to demonstrate that either defendant "was required to accept one or more jurors whom he wished to challenge . . . ." Ibid., quoting from Tamburello v. Welch, 392 S.W.2d 114, 116 (Tex. 1965).

2. Expert testimony. The defendants point out that the plaintiff's treating psychiatrist, Dr. Compaine, was not designated an expert during discovery or at any other time prior to trial. In the parties' joint pretrial memorandum, the plaintiff affirmatively represented that she had no expert witnesses. On the seventh day of trial, however, the judge allowed the plaintiff to question Dr. Compaine both as an expert and as her treating physician, over the defendants' objection that the plaintiff had not previously identified him as an expert. Dr. Compaine went on to testify not only to his diagnosis and treatment of the emotional and physical problems that the plaintiff had presented in the wake of her leaving CSA, but also to the general characteristics displayed by persons in abusive relationships, including lack of free will. He opined, based on what the plaintiff had told him and the symptoms she manifested, that she appeared to lack free will in the context of an abusive relationship. This, the defendants contend on appeal, constituted prejudicial surprise.⁷

We are not unsympathetic to the defendants' indignation at the plaintiff's cavalier violation of the procedural rules with respect to her expert.⁸ The defendants' appeal nonetheless falters in not coming to grips with either the applicable standards of review or their failure to discharge the basic obligation of litigants seeking appellate relief to make and preserve proper objections at trial.

The extensive discretion of trial judges with respect to both the process of discovery and the admission of evidence, particularly expert testimony,⁹ and the great deference appellate courts accord the rulings of trial judges in these areas are too well established to require citation. The defendants have not demonstrated that the judge's decision to allow Dr. Compaine to testify as an expert in mid-trial constituted an abuse of that broad discretion; or that, even if the judge erred in his exercise of discretion in these matters, prejudicial error ensued. See Commonwealth v. Francis, 390 Mass. 89, 99 & n.6 (1983); Commonwealth v. Medeiros, 395 Mass. 336, 351 (1985); Solimene v. B. Grauel & Co., KG, 399 Mass. 790, 799 (1987).¹⁰

The defendants have cited to, and we know of, no case in which a trial judge's discretionary admission (or exclusion) of belatedly offered and previously unidentified expert testimony has been reversed by our appellate courts, notwithstanding any violation of discovery obligations or pretrial orders. Moreover, it is clear that they knew well prior to trial that Dr. Compaine would be the plaintiff's key witness. They had subpoenaed all his treatment notes and they had deposed him, thereby having had the opportunity to obtain the substance of his testimony.¹¹ We conclude that "[a]bsent here [was] the sort of unfair surprise which [the discovery rules] seek[] to prevent." Resendes v. Boston Edison Co., 38 Mass. App. Ct. 344, 351 (1995).

Further subversive of their claim of unfair surprise or prejudice are the facts that the defendants (a) did not request a continuance, thereby indicating that there was nothing further to investigate regarding Dr. Compaine, that they were prepared to cross-examine him, and that their own expert was ready to counter opinions favorable to the plaintiff's case, see Giannaros v. M.S. Walker, Inc., 16 Mass. App. Ct. 902, 902 (1983); Resendes v. Boston Edison Co., 38 Mass. App. Ct. at 350-351 (failure of defendant to seek continuance when plaintiff's late-identified expert allowed to testify cuts against claim of abuse of discretion and prejudice); cf. Commonwealth v. Gordon, 422 Mass. 816, 836 (1996), quoting from Commonwealth v. McGann, 20 Mass. App. Ct. 59, 66 (1985) (when "surprise" evidence surfaces at trial in violation of discovery obligations, "the preferred course of action is . . . a provision of additional time . . . ."); (b) did not seek a voir dire on or challenge Dr. Compaine's qualifications to provide expert testimony (and have likewise not challenged the judge's implicit discretionary finding that Dr. Compaine was so qualified, a finding amply supported by his resume and experience, see Commonwealth v. Boyd, 367 Mass. 169, 182 [1975], and cases cited); (c) did not state any specific objection to the content of the opinions Dr. Compaine expressed or to his testifying as both the treating physician and an expert (indeed, defense counsel conceded that a treating physician may render an expert opinion so long as he is qualified to do so and there is a proper foundation for the opinion); and (d) did at no time articulate any objection to Dr. Compaine's testimony beyond the lack of prior notification.¹²

Assuming, arguendo, that Dr. Compaine should not have been allowed to testify as an expert, the defendants have not demonstrated any consequent prejudice. Their ability to cross- examine him thoroughly was not discernibly hindered. In particular, they effectively used his treatment notes and admissions to emphasize for the jury that he had no personal knowledge of the events at CSA that the plaintiff reported to him and that he based his opinions on the information supplied by the plaintiff. They responded to every significant aspect of Compaine's testimony through their own expert, Dr. Gutheil, who had personally interviewed both the plaintiff and Smith. Gutheil not only contradicted Compaine's opinion that the plaintiff presented the clinical picture of someone in an abusive relationship who had lost her free will, but further opined (well beyond the testimony of Compaine, see note 12, supra) that the facts of the case were "most consistent with a broken-up office romance . . . rather than a gender-based sexual harassment scenario" (an opinion not challenged by the plaintiff). There was also no undue emphasis by plaintiff's counsel in closing argument on Dr. Compaine's testimony. The judge's charge on the subject of expert testimony was additionally counteractive of any residue of prejudice.¹³

In sum, we discern neither abuse of...