Leibovich v. Antonellis
Citation | 574 N.E.2d 978,410 Mass. 568 |
Parties | Joan B. LEIBOVICH et al. 1 v. Mark D. ANTONELLIS. |
Decision Date | 03 July 1991 |
Court | United States State Supreme Judicial Court of Massachusetts |
John P. Ryan, Robert G. Eaton, with him, for defendant.
W. Thomas Smith, Julia A. Thomas, with him, for plaintiffs.
Before LIACOS, C.J., and WILKINS, ABRAMS, O'CONNOR and GREANEY, JJ.
A jury in the Superior Court concluded that the defendant had operated his truck in a negligent manner, causing serious personal injuries to the plaintiffs' son. The jury returned verdicts in favor of the plaintiffs, which awarded them damages for personal injuries suffered by their son and damages for loss of his consortium. The defendant appealed from the judgments assessing the damages, and we transferred the case to this court on our own motion. We conclude that the trial judge properly exercised his discretion in his admission of expert testimony, and in his refusal to instruct the jury on the fact that any award they might make would not be subject to income taxes. In addition, we conclude that the defendant's constitutional rights to due process were not violated by the retroactive application to this case of G.L. c. 231, § 85X (1990 ed.), the loss of filial consortium statute. Consequently, we affirm the judgments.
From the evidence presented at trial, the jury could have found the following facts. On the morning of December 14, 1985, Marc Albert was driving east on Beacon Street in Newton, with Philip Leibovich sitting on the passenger side. Mark Antonellis was driving west on the same street in a pickup truck, approaching Albert's vehicle from the opposite direction. The accident occurred when Albert attempted to make a left turn and Antonellis' truck struck the passenger side of Albert's automobile, severely injuring Philip.
Joan and Miguel Leibovich, the parents and guardians of Philip (plaintiffs), filed suit on February 12, 1987, on behalf of their son against Albert and Antonellis (and other individuals who were subsequently dropped from the case) for negligence resulting in personal injuries to Philip. The plaintiffs also asserted claims in their own right for loss of the consortium, society, affection, and companionship of their son. In May, 1989, Albert and Antonellis filed motions to dismiss the loss of consortium claims on the ground that a then recently decided case of this court, Norman v. Massachusetts Bay Transp. Auth., 403 Mass. 303, 529 N.E.2d 139 (1988), held that no claim exists by a parent for a loss of his or her child's consortium resulting from injuries to the child. These motions were allowed without prejudice to their being reconsidered by the trial judge.
On September 11, 1989, the plaintiffs filed a motion to reconsider the dismissal of their claims, relying upon the existence of a statute passed subsequent to the Norman decision, which authorizes parents to bring claims for loss of consortium of a child, who has been injured through the negligence of a third party, and who is dependent on the parents for support. See G.L. c. 231, § 85X (1990 ed.), as inserted by St.1989, c. 259. 2 This motion was allowed. A trial was held, and the jury returned verdicts against Albert (who has not appealed) and Antonellis, in the amount of $5,500,000 for the personal injuries sustained by Philip and $250,000 for each parent for loss of consortium.
1. Qualifications of an expert witness. The defendant argues that the trial judge committed error by not expressly ruling on the qualifications of an expert witness and by instructing the jury that it was up to them to decide if the witness was qualified. For the reasons stated below, we conclude that there was no error.
The defendant's liability was premised on the jury's finding that he had been traveling well above the posted speed limit of twenty-five miles per hour at the time of the accident. There was ample testimony at trial as to the defendant's speed. An eyewitness to the accident testified that she estimated that the defendant's truck had been traveling between forty-five and fifty miles per hour prior to the collision. The defendant testified that he was traveling twenty-five to thirty miles per hour at the point of impact, after applying his brakes and skidding for thirty-six feet. 3
A police officer, who had investigated and reconstructed the accident, also testified as an expert concerning the defendant's speed. Prior to offering his opinion, the officer was questioned extensively as to his qualifications in the area of accident reconstruction. When the officer offered his opinion as to the defendant's speed, the defendant's attorney objected that the officer was not qualified to render such an opinion. The trial judge replied, "May have it." 4 Based upon his measurements of the skid marks, observations of the accident scene, and tests of the road surface, the officer testified that the defendant had been traveling forty-four miles per hour prior to applying his brakes.
The defendant argues that the judge failed to rule on the officer's qualifications as a preliminary question of fact. It is true that the judge did not make an express ruling as to the qualifications of this expert witness. However, the fact that the officer's qualifications had previously been laid out, and the judge's allowance of his testimony, clearly imply a prior determination by the judge that the witness was qualified, through his experience and training, to offer an opinion as to the speed of the defendant's truck. See Commonwealth v. Cantres, 405 Mass. 238, 246, 540 N.E.2d 149 (1989); Delano Growers' Coop. Winery v. Supreme Wine Co., 393 Mass. 666, 682, 473 N.E.2d 1066 (1985). It was within the judge's discretion to make this determination, and he did not abuse that discretion, or make an error of law, in admitting the officer's opinion. See Delano Growers' Coop. Winery, supra at 682, 473 N.E.2d 1066; Bernier v. Boston Edison Co., 380 Mass. 372, 384, 403 N.E.2d 391 (1980); Commonwealth v. Boyd, 367 Mass. 169, 183, 326 N.E.2d 320 (1975).
The defendant asserts that any ruling by the judge on the officer's qualifications was ambiguous, and argues that the judge, in his jury instructions, committed error by indicating to the jury that it was solely their function to determine whether the officer was qualified to render his opinion. We have held that it is error for a judge to refuse to make a preliminary finding as to the qualifications of an expert witness and to leave the question for the jury. See Winthrop Prods. Corp. v. Elroth Co., 331 Mass. 83, 86, 117 N.E.2d 157 (1954); P.J. Liacos, Massachusetts Evidence 113 (5th ed. 1981). However, it is only error when the judge expressly leaves the matter to the jury. See Boyd, supra, 367 Mass. at 183, 326 N.E.2d 320.
Upon examining the jury instructions, we are satisfied that the judge did not expressly instruct the jury to make a threshold finding as to the officer's qualifications as an expert. 5 The instructions (key portions emphasized below) consistently referred to the officer as an "expert," and clearly indicated that he had already been qualified by the court, because of his "knowledge and experience," to render expert opinions on this matter.
When the judge instructed the jury to evaluate the officer's qualifications, he did not improperly delegate a judicial function to the jury. Once the judge makes a preliminary finding that a witness is qualified to render expert opinion, as was done here, the jury may continue to evaluate the witness' qualifications. The jury's function, vis-a-vis an expert witness, is to assess the soundness and credibility of his opinions. The jury is entitled to discount, or disbelieve, the expert's testimony. See Banaghan v. Dewey, 340 Mass. 73, 79, 162 N.E.2d 807 (1959); Dodge v. Sawyer, 288 Mass. 402, 408, 193 N.E. 15 (1934). One factor in assessing the strength of expert testimony is the expert's knowledge and experience. A jury may properly evaluate that knowledge and experience in deciding what weight to give the opinion when reaching a final decision.
The judge's instructions to the jury, advising them to evaluate the officer's qualifications, merely articulated an element of the jury's function of assessing and weighing the soundness and credibility of an expert opinion. There was no error.
2. Requested jury instructions regarding tax consequences. The defendant claims that he is entitled to a new trial because the subject of income taxes had been raised during the trial, and the judge refused his request for an instruction telling the jury not to consider taxes when arriving at the amount of their verdicts. We conclude that the judge did not abuse his discretion in refusing the defendant's requested instruction.
A professional economist testified for the plaintiffs concerning the present value of their son's lost earning capacity and future medical expenses. The economist testified that the present value of the son's lost earning capacity was $1,583,412, and the present value of his future medical costs was $8,129,082. On cross-examination, the expert was asked by counsel for one of the defendants whether he had considered income tax consequences in arriving at these figures. He replied that he did not consider taxes when calculating the medical expenses themselves. However, he stated that, in arriving at a figure representing the present value of the son's lost earning capacity, he had calculated the son's estimated gross income over his work life and reduced that amount by twenty percent for taxes, in order to reflect actual net pay. In addition, the economist indicated that the amount of interest he had included in computing the final sums had been reduced by the income tax that would be due on it. No one contends that the economist's testimony was improper. See Norfolk & W. Ry. v. Liepelt, 444 U.S. 490, 493-494, 100 S.Ct. 755, 757-58, 62 L.Ed.2d 689 (1980); ...
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