BERGERON v. WINGATE AT NEEDHAM INC (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff brought this malpractice action against a nursing home and its staff, alleging negligent postoperative treatment. After a five-day trial, a jury returned a verdict for the defendants. The plaintiff appeals, claiming error in the conduct of the trial and in several of the judge's evidentiary rulings. We affirm.

1. Juror bias. During cross-examination of the defendants' expert, counsel for the plaintiff asked the expert to locate a certain page of the medical records. The following exchange then occurred:

Juror: “Your Honor, 170.”

[Plaintiff's counsel]: “Your Honor, I object. The juror - - ”

Juror: “I just -- ”

Judge: “All right, sir, please -- ”

Court officer: “Don't make any comments.”

Judge: “No comments, if you don't mind. Thank you.”

[Plaintiff's counsel]: “Note my objection for the record, Your Honor.”

Judge: “The objection is noted.”

The judge did not interview the juror, and trial continued.

Later, during summation, counsel for the plaintiff argued that the expert “[didn't] know the facts of this case,” as evidenced by his inability to locate the medical record “[w]ithout the assistance of the juror in the yellow shirt.” Upon concluding his argument, counsel requested for the first time that the judge exclude the juror from deliberating because his “outburst ․ indicat[ed] bias.” The judge denied the request, observing that counsel “made reference to [the outburst] multiple times during the course of [the] closing argument.”

On appeal the plaintiff argues that the judge erred by not questioning the juror about his potential bias and by not giving a curative instruction. The plaintiff did not, however, raise these issues to the judge. Though the plaintiff lodged an objection after the juror interjected, she did not specify the grounds for her objection, and at no point did she request a curative instruction or voir dire. These arguments are therefore waived. See Muzzy v. Cahillane Motors, Inc., 434 Mass. 409, 416 (2001) (to preserve challenge to jury instruction, party must both object and state grounds of objection); Commonwealth v. Vickery, 82 Mass. App. Ct. 234, 237 (2012) (“By failing to act, the defendant waived any objection to the judge's voir dire procedure”).

In addition, the judge did not abuse his discretion in denying the plaintiff's request to exclude the juror from deliberations. See Commonwealth v. Campbell, 51 Mass. App. Ct. 479, 483 (2001) (“The decision to discharge a juror is entrusted to the sound discretion of the trial judge”). As the judge noted, the plaintiff made the request only after she used the juror's comment to her advantage in closing argument. Moreover, the plaintiff offered no evidence to show that the juror was impermissibly biased. Contrary to the plaintiff's assertion, nothing about the juror's comment reflects inherent bias, as opposed to impatience or a desire to move the trial along. See id. at 484 (“Expressions of run-of-the-mill frustrations by an exasperated juror about the judicial process are to be expected and should not ordinarily provide a basis to overturn a decision on appeal”). For these reasons the judge was within his discretion not to discharge the juror.

2. Motion to strike testimony. The plaintiff's second argument focuses on the following exchange that occurred during cross-examination of defense witness Jean Cahill:

q.: “Do you remember the type of gauze you used?”

a.: “I do not recall, but -- ”

q.: “Do you remember what the wound looked like?”

[Defendants' counsel]: “She didn't finish her answer.”

Judge: “Ma'am, had you finished your prior response?”

Witness: “No.”

a.: “I do not recall, but we, in general, use sterile gauze, four by four or two by two, to pack the [wounds], which we have in stock.”

[Plaintiff's counsel]: “Move to strike, Your Honor; unresponsive.”

Judge: “Overruled.”

The plaintiff contends that the judge abused his discretion in not striking Cahill's testimony as unresponsive.⁵ We disagree. The judge properly concluded that the testimony was responsive to the earlier question that Cahill had not finished answering. In any event, the plaintiff has not shown that the judge's ruling caused her prejudice in the context of the trial as a whole. See Coady v. Wellfleet Marine Corp., 62 Mass. App. Ct. 237, 244 (2004) (“The admission of evidence injuriously affects the substantial rights of a party where the jury might have reached a different result if the evidence had been excluded”).

3. Exclusion of expert testimony. Finally, the plaintiff challenges the judge's allowance of the defendants' motion in limine to exclude the plaintiff's expert from testifying at trial. The judge allowed the motion on the ground that the plaintiff's expert witness disclosure was inadequate under Mass. R. Civ. P. 26 (b) (4), 365 Mass. 772 (1974). We review this ruling for abuse of discretion, see Kace v. Liang, 472 Mass. 630, 637 (2015), and we discern none. Based on our review of the disclosure, we conclude that the judge was warranted in finding that it did not “give a fair description of [the expert's] anticipated testimony” and did not “purport to provide any basis or summary for her opinions.” See id., quoting Elias v. Suran, 35 Mass. App. Ct. 7, 10 (1993) (“judge has broad discretion to admit or exclude ‘expert testimony when the proponent has not given proper notice of ․ the subject matter of the expert's anticipated testimony’ ”); Barron v. Fidelity Magellan Fund, 57 Mass. App. Ct. 507, 519 (2003) (judge acted within discretion in excluding expert's testimony “as a result of the plaintiffs' failure adequately to answer [the defendant's] expert interrogatories and, later, to supplement the answers they did provide”).

Nor did the judge abuse his discretion in not giving the plaintiff an opportunity to cure the inadequacies. The judge found that the plaintiff was on notice of the defendants' motion since February 2017. The plaintiff did not seek to supplement her expert disclosure until the hearing on the motion, which occurred on September 12, 2017, just a few days before the scheduled start of trial. Excluding the expert from testifying was not an abuse of discretion in these circumstances.⁶

Judgment affirmed.

FOOTNOTES

5.   The plaintiff's brief appears to argue that the judge should have stricken the entirety of Cahill's testimony. At oral argument, however, the plaintiff clarified that she is challenging only the quoted testimony.

6.   The plaintiff also argues that the judge should have precluded the defendants' expert from testifying because his interrogatory answers were untimely and not signed. But the judge found that the plaintiff suffered no undue prejudice because the defendants served supplemental answers with the required signature and the plaintiff had the expert's disclosure for at least six months prior to trial. The plaintiff's claim that the judge erred in this regard does not rise to the level of appellate argument. Mass. R. A. P. 16 (a) (4), 481 Mass. 1628 (2019).