Hathaway v. Raytheon Engineers & Constructors, Inc.

• Court: Massachusetts Superior Court
• Writing for the Court: Lu, John T., J.
• Citation: Hathaway v. Raytheon Engineers & Constructors, Inc., 2007 MBAR 328, 990208 (Mass. Super. May 10, 2007)
• Decision Date: 10 May 2007
• Docket Number: 990208
• Parties: Hathaway et al.[1] v. Raytheon Engineers and Constructors, Inc.

2007-MBAR-328

Hathaway et al.^[1] v. Raytheon Engineers and Constructors, Inc.

No. 990208

Superior Court of Massachusetts

May 10, 2007

Opinion No.: 99702

As-is Docket Number: 99-0208

Venue Suffolk

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Lu, John T., J.

Opinion Title: MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTIONS FOR JUDGMENT NOTWITHSTANDING THE VERDICT, NEW TRIAL AND REMITTITUR

INTRODUCTION

The plaintiff, David Hathaway (Hathaway), and the other plaintiffs (collectively plaintiffs) sued the defendant Raytheon Engineers and Constructors, Inc. (Raytheon), for negligence that caused Hathaway's injuries when he fell while working on the Maurice Tobin Memorial Bridge (Tobin Bridge) in Boston as an employee of Erie Interstate Contractors (Erie). The jury returned a verdict for the plaintiffs in the total amount of $7,950,000. Pursuant to Mass.R.Civ.P. 50(b) and 59(a), Raytheon moves this court for judgment notwithstanding the verdict, a new trial, and remittitur.^[2]

Determining that the contracts were ambiguous as to whether Raytheon shared safety responsibilities, the court determines that it correctly submitted the ambiguities to the jury for its determination. Finding that the testimony of a co-worker that Hathaway looked at him before stepping onto a plank placed on a ladder between lift trucks was inadmissible hearsay, the court determines that it correctly excluded the evidence. Finally, the court determines that the jury award was supported by the evidence. The court denies all relief requested by Raytheon.

BACKGROUND

On February 3, 1993, Massport contracted with Raytheon (Massport-Raytheon Contract) for architectural and engineering services related to painting the Tobin Bridge in Charlestown and Chelsea.^[3] As part of the Massport-Raytheon Contract, Raytheon agreed to "inspect, test, analyze and provide a painting program for portions of the Maurice Tobin Memorial Bridge," which included structural steel elements, handrails, columns, and the containment area required for cleaning and painting within the work areas. Raytheon agreed to paint the bridge's structural steel in phases 4, 5, 6, and 9 of the project. The Massport-Raytheon Contract was amended on August 14, 1996 (Amended Contract) "to provide additional scope of services in connection with Construction Phase and Resident Inspection Services for completion of Phase 1 and environmental matters for Phases 1 and 4; and to increase [Raytheon's] compensation by $40,666 for a new overall contract amount of $547,116."

On June 28, 1996, Massport entered into an agreement with Erie in which Erie agreed to paint part of the Tobin Bridge for $3,996,280 in phases 1 and 4 of the painting project (Massport-Erie Contract). As a result of the Massport-Raytheon Contract, the Amended Contract, and the Massport-Erie Contract, Raytheon and Erie shared the responsibility for painting the Tobin Bridge in stages, with Raytheon maintaining oversight duties.

On April 29, 1997, while working as an Erie employee at the Tobin Bridge site, Hathaway fell off the top of a lift truck and was seriously injured. He, his wife and children sued the defendants for negligence and loss of consortium. In March 2006, the jury found that Raytheon was negligent and that the negligence caused the plaintiffs' injuries. Hathaway's total personal award was $5,250,000. Mrs Hathaway was awarded $2,000,000 for her loss of consortium claim, and Hathaways' two minor children each received $350,000 for their loss of consortium claims.

The Evidence

The evidence at trial included testimony about Hathaway's accident, expert testimony about job site safety and industry practices, and the three contracts.

A. The Accident

1. Eyewitness Testimony

Hathaway started working for Erie about two weeks before the accident. At trial, Hathaway first said that he had no memory of how the accident happened. He said that he believed he was handing panels up to a co-worker just before the accident. He remembered reaching up, leaning out, and that a railing 3.5 to 4 feet above the floor of the box truck gave way. There was a discrepancy in Hathaway's memory between 1999 and 2004 as to whether the railing collapsed in front of or behind him.

Roger Perreault (Perreault), who was one of Hathaways former co-workers at Erie, testified that although he did not see Hathaway fall, he saw him standing one foot away from the truck's railing immediately before the accident. Hathaway handed a plank to him and Perreault looked away for a few seconds. Next, Perreault heard tires screeching in the roadway below, and turned to see Hathaway in the road beside the truck. Perreault said that he noticed the railing close to where Hathaway had been standing had collapsed inward onto the truck's platform surface. Despite not seeing Hathaway fall, Perreault said that in his experience, he and other workers sometimes had to climb over the railing to reach the panels to conduct the work because the railings were too short and no ladders were provided on site. "[P]rior to the accident, there was no independent tie off" to prevent the workers from falling off the trucks. He acknowledged that tying off was, in part, a worker's individual decision prior to the accident, and he suggested that on-site enforcement was questionable. Perreault acknowledged that he never saw a Raytheon employee inspect the box lift truck Hathaway was working from on the day of the accident.

The deposition transcript of another worker, Edward Thomas Smith (Smith), was read to the jury. Smith testified that prior to the accident, Hathaway placed a ladder and board across the top of the two box lift trucks to avoid moving the trucks Hathaway and his co-workers were using on the job site.^[4] Smith said that he saw Hathaway climb over the truck's railing onto the ladder/board arrangement prior to his fall.

2. Expert Testimony

Competing expert witnesses testified at trial about Hathaway's medical condition, the extent of his injuries, and the prognosis, including his income potential. The plaintiffs' medical expert, psychologist Robert Jamison, Ph.D. (Dr. Jamison), said that Hathaway had a closed head injury, chronic pain syndrome, and low level depression. Dr. Jamison also believed that Hathaway had reached an end result in treatment for his injuries.

Dana C. Hewins, Ph.D. (Dr. Hewins), the plaintiffs' labor and health care economist, analyzed Hathaway's loss of earning capacity after the accident. Dr. Hewins explained the four-step process he used to determine Hathaway's loss of earning capacity. Dr. Hewins's opinion was based on reviewing Hathaway's wage statements, tax returns, medical opinion letters, former employer documents, union documents (including projected pay raises, health care and fringe benefits charts, and pension and annuity pay projections), and life expectancy charts. Dr. Hewins assumed that Hathaway was and would remain "totally and permanently disabled" for the remainder of his life (i.e., 40 years) based on medical reports from three doctors. Dr. Hewins concluded "to a very high degree of economic certainty that the likelihood that an individual such as Mr. Hathaway ever returning to work is very, very small." Dr. Hewins's total damage assessment was $2,343,000, including past medical bills, future lost wages, and medication costs.

3. The Hathaways' Testimony

At trial, Hathaway and his wife testified but their two children did not. Hathaway testified about his relationship with his wife, how they met, and married. He described how his injuries affected his relationship with his wife and children. Hathaway also testified about his medical treatment following the accident, during the nine years prior to trial, and how his injuries affected his daily life and his ability to work.

Mrs. Hathaway said her husband's injuries had changed him as a husband and father. She said that prior to the accident, Hathaway was an ambitious "go-getter," who wanted to take care of her and the children, and that he did not want her to work. She described the Hathaway family before the accident as close to relatives. Mrs. Hathaway also said that before the accident, her family engaged in activities like snow skiing, diving, and skating, sports which Hathaway had taught their children and his nieces and nephews.

B. The Contract Documents

Over Raytheon's objection, this court determined that the Massport-Raytheon Contract was ambiguous as to responsibility for monitoring safety in four places, presenting an issue of fact for the jury. The jury determined whether Raytheon was responsible for fall protection at the job site. The ambiguous provisions in the Massport-Raytheon Contract were sections 1.5.1 and 1.6.4; and sections 2(B)(5) and 2(B)(6) in the Amended Contract. These sections read:

1.5.1 [Raytheon shall] [s]chedule and conduct weekly job conferences, make regular site visits as necessary and consistent with the progress of the work to observe the progress and quality of the work and to determine if the work is proceeding in accordance with the contract documents and verify that individual work elements are correctly installed before subsequent elements are initiated; keep Authority [Massport] informed on the progress of the work and endeavor to protect the Authority [Massport] against defects and deficiencies in the work; call deficiencies to the attention of Authority [Massport] and contractors in writing and disapprove or reject work failing to conform to the contract documents; write and submit progress report each week reporting findings...

1.6.4 [Raytheon shall] [o]bserve the work to determine conformance with the contract documents and to ascertain the need for correction or rejection of the work,...