BOLTON v. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY

• Decision Date: 11 June 1992
• Docket Number: No. 91-P-1169,91-P-1169
• Citation: 593 N.E. 2d 248,32 Mass.App.Ct. 654
• Parties: G. Dana BOLTON, Jr., administrator, v. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY
• Court: Appeals Court of Massachusetts

593 N.E.2d 248 32 Mass.App.Ct. 654 G. Dana BOLTON, Jr., administrator, v. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY No. 91-P-1169 Appeals Court of Massachusetts Middlesex Argued April 13, 1992. Decided June 11, 1992. Further Appellate Review Denied Aug. 4, 1992.

John Arthur Johnson, Boston, for defendant.

Anthony M. Doniger, Boston (Barbara L. Siegel, with him), for plaintiff.

Before KASS, PORADA and GREENBERG, JJ.

PORADA, Justice.

The plaintiff sued the defendant for the conscious pain and suffering and wrongful death of his intestate, Elizabeth Bolton, who died in a motor vehicle collision with the defendant's bus. From a judgment for the plaintiff in the Superior Court and the denial of the defendant's motion for a new trial, the defendant appeals.

The defendant argues that the trial judge erred in excluding the defendant's expert witness from testifying on the results of his inspection of the bus for the Department of Public Utilities. The defendant also argues that the evidence was insufficient as matter of law to warrant recovery for conscious pain and suffering and wrongful death. We affirm the judgment.

1. Exclusion of expert opinion. The plaintiff alleged that the cause of his intestate's death was the malfunction of the brakes on the defendant's bus on December 27, 1985. Ten days after the accident, the bus was inspected by the Department of Public Utilities and the brakes were found to be working properly. On January 23, 1986, the engine and its attached equipment were removed from the bus, and the bus was placed in storage at the defendant's Everett facility on January 31, 1986.

On June 9, 1987, counsel for the plaintiff wrote to opposing counsel requesting that she determine the whereabouts of the bus and, if it remained under the defendant's control, to ensure its safekeeping as it was a vital piece of evidence. On July 13, 1987, defense counsel replied that she would inform plaintiff's counsel of the location and condition of the bus as soon as she heard from the defendant. On April 19, 1989, defense counsel advised the plaintiff's attorney that the engine had been removed from the bus on January 23, 1986, and the bus scrapped on January 31, 1986. In fact, the bus had not been scrapped on January 31, 1986, but rather was located at the defendant's body shop in Everett from January 1, 1986, until June 28, 1988, when it was scrapped. Because the plaintiff was not informed of the location of the bus or given an opportunity to inspect it before its destruction, the plaintiff filed a motion to preclude the defendant's expert witness, the inspector of the bus for the Department of Public Utilities, from testifying to the results of his physical inspection of the bus after the accident. 1 The judge allowed the motion.

"The general rule to be followed in this Commonwealth is that all relevant evidence is admissible unless within an exclusionary rule." Poirier v. Plymouth, 374 Mass. 206, 210, 372 N.E.2d 212 (1978). In Nally v. Volkswagen of America, Inc., 405 Mass. 191, 539 N.E.2d 1017 (1989), the Supreme Judicial Court fashioned for civil cases a new exclusionary rule which requires a judge at the request of a potentially prejudiced litigant to preclude an expert opinion based on physical evidence which the expert has deliberately or negligently destroyed. Id. at 197-198, 539 N.E.2d 1017. Relying on the Nally decision, the judge allowed the motion. The defendant argues that this was error because the rule should not apply to an expert employed by an independent State agency such as the Department of Public Utilities, whose chief concern is the general safety of the public, and that, absent a showing of bad faith, the defendant should be free to dispose of its vehicles involved in an accident after the completion of their inspection by an appropriate Federal or State agency, without the imposition of any sanctions. This argument misconstrues the holding in Nally.

In Nally, the Supreme Judicial Court held that the rule applied whether the expert's conduct occurred before or after he was retained by a party to the litigation and whether the destruction was deliberate or negligent. Nally v. Volkswagen of America, Inc., 405 Mass. at 198, 539 N.E.2d 1017. "The reason for the rule is the unfair prejudice that may result from allowing an expert deliberately or negligently to put himself or herself in the position of being the only expert with first-hand knowledge of the physical evidence on which expert opinions as to defects and causation may be grounded." Ibid. The rationale for the rule remains the same when a party, as in the present case, rather than an expert destroys the physical evidence. See Graves v. Daley, 172 Ill.App.3d 35, 122 Ill.Dec. 420, 526 N.E.2d 679 (1988) (plaintiffs barred from presenting evidence regarding condition of furnace as sanction for destruction of furnace after it had been examined by plaintiff's expert but prior to defendant's inspection); Strelov v. Hertz Corp., 171 A.D.2d 420, 566 N.Y.S.2d 646 (N.Y.1991) (motor vehicle lessor precluded from introducing evidence on condition of vehicle as sanction for selling vehicle for salvage without first providing the plaintiff an opportunity to inspect the vehicle); Fire Ins. Exchange v. Zenith Radio Corp., 103 Nev. 648, 747 P.2d 911 (1987) (insurer was subject to sanction of exclusion of expert witness for destruction of evidence).

Here, the actions of the defendant had the effect of reserving to itself all expert testimony based upon the physical inspection of the bus after the accident. The trial judge's exclusion of the testimony of the inspector from the Department of Public Utilities merely prevented the defendant from exploiting its unwarranted advantage. "Trial judges have 'broad discretion to make discovery and evidentiary rulings conducive to the conduct of a fair and orderly trial.... Within this discretion lies the power to exclude or deny expert testimony ... and to exclude testimony of witnesses whose use at trial is in bad faith or would unfairly prejudice an opposing party.' " Nally v. Volkswagen of America, Inc., 405 Mass. at 197, 539 N.E.2d 1017, quoting from Campbell Indus. v. M/V Gemini, 619 F.2d 24, 27 (9th Cir.1980). In the circumstances, the judge did not abuse his discretion.

2. Sufficiency of the evidence. The defendant argues that the evidence was insufficient to warrant verdicts for conscious pain and suffering and wrongful death of the decedent. The defendant did not move for a directed verdict at the close of plaintiff's case or at the close of the evidence. Absent a motion for a directed verdict, the defendant is barred from challenging the sufficiency of the evidence before us. International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 846-847, 443 N.E.2d 1308 (1983). Hatton v. Meade, 23 Mass.App.Ct. 356, 361-362, 502 N.E.2d 552 (1987).

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