Fyffe v. Mass. Bay Transp. Auth.

Decision Date06 October 2014
Docket NumberNo. 13–P–186.,13–P–186.
Citation17 N.E.3d 453,86 Mass.App.Ct. 457
PartiesColleen FYFFE v. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY & another.
CourtAppeals Court of Massachusetts

John J. Bonistalli (Jonathan P. Feltner with him), Boston, for the defendants.

Thomas R. Murphy, Salem, for the plaintiff.

Present: TRAINOR, GRAHAM, & AGNES, JJ.

Opinion

AGNES

, J.

As we explain in detail below, this is a case where, contrary to established law and the trial judge's numerous cautions and rulings, plaintiff's experienced trial counsel2 improperly argued (1) facts that were not in evidence, (2) concepts of

liability, despite the parties' stipulation that the only triable issues related to damages, and (3) that the jury were the conscience of the community and had a duty in this case to safeguard users of public transportation in the future. Plaintiff's counsel also wilfully disregarded the judge's explicit rulings on a number of issues and, by defiantly challenging her rulings in front of the jury, undermined her attempts to remedy his misconduct. As a result of these numerous transgressions by plaintiff's trial counsel, the judge was required to “conduct [ ] the trial under severe and exasperating handicaps.” Stavisky v. Slotnick, 19 Mass.App.Ct. 1028, 1030, 477 N.E.2d 188 (1985)

. Mindful of the deference we owe the judge's determination on a motion for a new trial whether such errors were prejudicial, in this case our review of the record of this very brief trial (two full days of testimony) persuades us that the errors committed by plaintiff's counsel, considered in their totality, “injuriously affected the substantial rights” of the defendants and deprived them of a fair trial. G.L. c. 231, §§ 119, 132. Accordingly, despite the judge's commendable patience, we vacate the judgment and remand for a new trial.

Procedural background. The plaintiff Colleen Fyffe was injured on May 8, 2009, when the Massachusetts Bay Transportation Authority (MBTA) trolley in which she was riding struck another trolley on the MBTA's Green Line in Boston. She filed suit in Superior Court against the MBTA and the operator of her trolley, Aiden Quinn, alleging that the defendants were liable in negligence. Before trial it was agreed that the plaintiff's trolley crashed due to the negligence of the operator.3 The parties stipulated, and the trial judge instructed the jury, that the sole issue was the amount of money that would represent fair and reasonable compensation to the plaintiff for the injuries she suffered as a result of the defendants' negligence. Also as agreed, the jury were instructed that punitive damages were not part of the case before

them. The verdict slip called for the jury to provide a single figure representing the total of all compensatory damages, with no breakdown of the damages components on which they were instructed, such as medical expenses, lost earnings, and pain and suffering.

The jury returned a verdict awarding the plaintiff $1.228 million in damages. After the entry of judgment, the defendants timely filed a motion for a new trial or remittitur, asserting that the verdict was excessive and against the weight of the evidence; that as a result of deliberate and prejudicial misconduct by plaintiff's counsel the jurors were exposed to evidence not presented at trial; and that their verdict was reached under the influence of passion, sympathy, and prejudice. After a hearing, the trial judge issued a memorandum of decision and order denying the defendants' motion. The defendants appeal from both that order and the judgment.

Evidence at trial. The plaintiff presented evidence that she was forty-six years old at the time of the crash; that when the trolleys collided her neck snapped sharply backwards (her seat faced the rear of her train4 ); that she sustained cervical and lumbar spine injuries

; that she incurred medical bills in the amount of $20,309.66; that she could not return to her job as a gate agent for Delta Airlines (Delta) because her injuries prevented the required regular lifting of heavy suitcases; that her 2008 Delta wages were $32,781; that if she worked full-time for Delta, she could earn up to $40,000 annually plus benefits; and that in July of 2010 she began working in a restaurant where, in 2011, she worked two days per week, earning $15,479.

Although the defendants agreed with the plaintiff that the MBTA trolley operator was negligent, there were a number of issues they disputed at trial, including the severity and consequences of the plaintiff's neck injury; whether her lower back injury, chronic headaches

, and depression and anxiety were preexisting conditions not caused or aggravated by the collision; the extent to which the plaintiff was disabled from working; and the adequacy of the proof of damages attributable to lost earning capacity.

In order to understand the significance of remarks made by plaintiff's counsel in his closing argument, it is necessary to set

forth something of the testimony of the two medical experts. The plaintiff's expert, Dr. Francis Rockett, a neurosurgeon, first saw the plaintiff in December, 2010, about twenty months following the train crash.5 He did not review her medical records from before the May, 2009, crash. Based on a magnetic resonance imaging

(MRI) study of the plaintiff done in June, 2009,6 he opined that she had a herniated cervical disc. When asked, over defense objection, “what that herniated disc

is doing,” he not only stated it was “pushing against the spinal cord,” but added if the “anterior spinal ligament,” which protects the spinal cord “from further extrusion of the disc,” did not remain intact, “it would render the patient quadriplegic.”7 After another objection to a follow-up question, there was a sidebar conference. Counsel for the defendants pointed out that the subject of quadriplegia had not previously surfaced in any discovery. Plaintiff's counsel readily

admitted that quadriplegia

was “not in question.”8 The judge assumed and plaintiff's counsel readily acknowledged that the witness was not going to testify that the plaintiff was a quadriplegic. Dr. Rockett went on to explain that in March, 2012, he noted the plaintiff had reported pain radiating down her left arm to her left hand, and that this pain was the result of the pressure of the disc against the ligaments in the spinal canal. He added that the degree of the plaintiff's pain depended on the degree of pressure against those ligaments. He also opined that the plaintiff's complaints of low back pain first made about nine months after the trolley crash, and of headaches (which had also been a subject of complaints dating back to 2004), were related to that event. Dr. Rockett opined that the collision permanently disabled the plaintiff from her job as a Delta gate agent due to the requirement that such workers lift heavy pieces of luggage. Dr. Rockett did not opine that the plaintiff was permanently disabled from other types of employment that did not involve heavy lifting. See note 8, supra.

The jury also heard testimony by means of a videotaped deposition of Dr. Joseph D'Alton, a board certified neurologist called by the defendants. Dr. D'Alton did not treat or examine the plaintiff, but rendered opinions based on a review of the plaintiff's medical records. He agreed with Dr. Rockett that the June, 2009, MRI study of the plaintiff's neck revealed a disc herniation at C4–C5 that was caused by the trolley crash, but he described the injury far differently from Dr. Rockett.9 Dr. D'Alton testified that in most such cases the extruded disc material is reabsorbed by the body and, with physical therapy, the symptoms go away within six to twelve weeks. In particular, he interpreted the

plaintiff's medical records, especially the notes of her 2009 physical therapy treatment, as indicating that by November, 2009, she had improved considerably, had only mild pain, and was fit to return to work with limitations on lifting for about one month before she would be ready to resume her regular employment. He also opined that there was no causal relationship between the plaintiff's lower back problems and the train crash.

Discussion. 1. Introduction. The defendants contend that during the opening statement, throughout the presentation of the evidence, and during closing argument, plaintiff's counsel violated established rules of practice and evidentiary standards, frequently in direct violation of a ruling sustaining a defense objection. Observations made by the trial judge in her memorandum of decision indicate that she took the same view of the conduct of plaintiff's counsel, noting, for example, his “efforts to elicit evidence without any apparent good faith basis to believe that such evidence would be admissible.” Although the judge responded to some of these violations by sustaining objections and giving instructions to the jury, we do not believe the actions taken by the judge cured the prejudice caused by counsel's misconduct.

2. Opening statement by plaintiff's counsel. “The proper function of an opening is to outline in a general way the nature of the case which the counsel expects to be able to prove or support by evidence.” Posell v. Herscovitz, 237 Mass. 513, 514, 130 N.E. 69 (1921)

. “It is not an opportunity for argument.” Commonwealth v. Croken, 432 Mass. 266, 268, 733 N.E.2d 1005 (2000). In his opening, plaintiff's counsel made multiple statements about the crash and the train operator's actions prior to and during the crash, despite the fact that the parties had stipulated that the defendants were negligent. For example, counsel told the jury that as the trolley left Government Center station and accelerated to full speed, defendant Quinn took out his cellular telephone and called his girlfriend, leaving a voice message. The judge sustained an objection and told counsel “to concentrate on the issue that is before the jury.” Plaintiff's counsel responded by...

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