David v. Kelly
| Citation | 178 N.E.3d 878 |
| Decision Date | 25 October 2021 |
| Docket Number | No. 20-P-706,20-P-706 |
| Parties | Michael A. DAVID v. Jonathan P. KELLY & another. |
| Court | Appeals Court of Massachusetts |
Peter E. Heppner, South Easton, for the defendants.
Marianne C. LeBlanc, Boston, for the plaintiff.
Present: Sullivan, Desmond, & Singh, JJ.
On May 27, 2014, mail carrier Michael A. David was covering a vacationing coworker's mail route in the town of Harvard. When he got out of his mail truck to deliver mail at the home of Jonathan P. Kelly and Donna Kelly, the Kellys’ dog, a German shepherd and golden retriever mixed breed named Chewbacca, bit him. After a jury trial, David was awarded $375,000 in damages for injuries sustained.
In a subsequently filed motion for a new trial, the Kellys contended, as they had in pretrial motions in limine, that the evidence that David received Federal workers’ compensation benefits in the amount of $57,318 was admitted in violation of the collateral source rule. David opposed the motion on the merits and on the grounds that any challenge to the verdict was barred by the parties’ "hi-low" agreement. In this appeal from the judgment on the verdict and the denial of the motion for a new trial, we conclude that the appeal is not barred, and that although the amount of the payment should not have been admitted, any error did not substantially affect the rights of the defendants. Accordingly, we affirm the judgment and the order denying the motion for a new trial.
Background. We summarize the evidence at trial as the jury could have found it, noting conflicts in the evidence, and reserving certain facts for later discussion. David, a mail carrier for the United States Postal Service (post office), was covering a vacationing coworker's mail route. When David arrived at the Kellys’ house, the dog approached him. He offered a dog treat with one hand. Instead of taking the treat, the dog latched on to David's wrist at the back "hinge point" of its jaw, and "shook [the wrist] violently for about five to ten seconds." David yanked his wrist out of the dog's mouth. The dog immediately bit him on his left thigh. David shook the dog off and shoved a package into the dog's mouth. Undeterred, the dog came at David again. David "slapped" the dog with the mail in his hand, and while the dog was "dazed," retreated to his truck and shut the door.
Donna Kelly2 appeared at the doorway to the house and called the dog in. She asked David "if the dog had gotten [him]." David replied in the affirmative and showed her the bite on the leg, which had broken the skin. David testified at trial that he told Donna the dog also bit him on the wrist, although he was not "[one hundred] percent sure" of this. Donna testified that David told her about the bite on the leg, but not the bite on the wrist.
Donna shared with David that she told the usual mail carrier to "beep" if she had a package "so that [Donna] could come out if the dog was outside." David then said he had to call the Harvard postmaster and seek medical treatment. Donna testified that David said he was going home. David denied that he said he was going home.
David called the postmaster and drove back to the Harvard post office. The postmaster took photographs of David's thigh and wrist. One photograph depicted a wound to the upper thigh that broke the skin. A second photograph showed an indentation consistent with a sharp tooth mark and reddening of the surface of the skin on the wrist. The skin on the wrist was not broken.
David sought treatment at Nashoba Valley Medical Center (Nashoba Valley). Medical personnel cleaned and dressed the leg wound and checked his wrist. There was reddening but no swelling of the wrist. David tested "five out of five" on a grip strength test, which meant that he had "[n]ormal strength." After a follow-up appointment, David returned to work on June 3, 2014.
When more conservative therapies failed to provide relief, he underwent surgery in April of 2015. Pain persisted and he had cortisone injections. After wearing a splint and undergoing physical therapy without significant improvement, David had a second MRI and underwent a second surgery.3 The second surgery provided some benefit, but he continued to experience pain and numbness while driving and with activity. David did not return to work at the post office, and in 2018, the post office terminated his employment.
Prior to trial, the plaintiff's expert, Dr. Hillel D. Skoff, performed an examination of the plaintiff, which included both a physical examination and a review of the medical records. The defendants’ medical expert, Dr. Hervey L. Kimball, reviewed the plaintiff's medical records but did not perform a physical examination. Both experts testified by video deposition at trial, and gave markedly different opinions, as is discussed more fully infra.
The defendants stipulated to liability under the dog-bite statute. G. L. c. 140, § 155. The contested issue at trial was causation -- whether the full extent of David's wrist injury
was in fact caused by a dog bite or something else.4 Before trial, David moved to introduce the receipt of Federal workers’ compensation benefits in the amount of $57,318, a motion which the defendants opposed on the grounds that the jury would treat the payment as evidence of causation and resulting injury. The judge allowed the motion. On the last day of trial, the parties entered into a hand-written high-low agreement, setting a floor of $150,000 and a ceiling of $1 million. The jury returned a verdict for the plaintiff in the amount of $375,000 for injuries and damages causally related to the dog bite. Following the verdict, the defendants filed the motion for a new trial, which was denied. This appeal followed.
Discussion. 1. High-low agreement. The parties entered into the following agreement at trial:
David asserts that this agreement constituted a waiver of the Kellys’ appellate rights.
High-low agreements cap a defendant's liability in exchange for ensuring that the plaintiff receives a minimum recovery in the event that the jury returns an award. While there is little law in Massachusetts regarding high-low agreements, such agreements are a contract like any other. We therefore turn to the ordinary rules of contract construction. Applying these rules, we reject David's contention.
The contract here is not susceptible of a reading that includes a waiver of appellate rights. "[W]hen the language of a contract is clear, it alone determines the contract's meaning." Balles v. Babcock Power Inc., 476 Mass. 565, 571, 70 N.E.3d 905 (2017). " ‘[W]aiver must be shown clearly, unmistakably, and unequivocably’ (citation omitted)." Psychemedics Corp. v. Boston, 486 Mass. 724, 745, 161 N.E.3d 399 (2021), quoting Boston v. Labor Relations Comm'n, 48 Mass. App. Ct. 169, 174, 718 N.E.2d 875 (1999).5 The high-low agreement makes no reference to postverdict or appellate rights; language regarding a waiver of appellate rights is altogether absent. The inclusion of the words "will pay" does not create a clear and unmistakable waiver of appellate rights in the absence of explicit language in the contract. See Psychemedics Corp., supra.6
2. Collateral source evidence. With respect to the admission of collateral source evidence, "we review the trial judge's evidentiary ruling for an abuse of discretion or error of law." Antoniadis v. Basnight, 99 Mass. App. Ct. 172, 176, 164 N.E.3d 206 (2021).7 "We do not disturb the trial judge's ruling simply because [we] might have reached a different result" (quotation and citation omitted). Id. Similarly, "[w]e review the denial of the defendants’ motion for a new trial for abuse of discretion, ... extending considerable deference where the trial judge and the motion judge were the same" (quotation and citation omitted). Parsons v. Ameri, 97 Mass. App. Ct. 96, 103, 142 N.E.3d 628 (2020).
Evidence of collateral source income is ordinarily excluded because "jurors might be led by the irrelevancy to consider plaintiffs’ claims unimportant or trivial or to refuse plaintiffs’ verdicts or reduce them, believing that otherwise there would be unjust double recovery." West v. Shawmut Design & Constr., 39 Mass. App. Ct. 247, 250, 655 N.E.2d 136 (1995), quoting Goldstein v. Gontarz, 364 Mass. 800, 809, 309 N.E.2d 196 (1974). Typically, the admissibility of insurance or workers’ compensation benefits has arisen in situations where the defendant seeks to introduce evidence of collateral source income. In that context, our courts have ruled that introduction of collateral source income is unfair and prejudicial to the plaintiff, unless relevant for some independent purpose, such as to show that the plaintiff is malingering, that claims of poverty are untrue, or to elicit some other facts bearing on credibility. See West, supra at 251, 655 N.E.2d 136 ; Corsetti v. Stone Co., 396 Mass. 1, 17-20,...
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