COLE v. FREDERICK (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, acting pro se, as representative of her minor daughter, appeals from a jury verdict for the defendant landlord. The gist of the plaintiff's claims are that the home she rented from the defendant beginning in 2002 contained lead paint, and that as a result her daughter suffered a variety of injuries. The plaintiff presented no expert testimony at trial, and thus there was no expert testimony that the daughter's injuries were causally related to exposure to lead paint. We affirm.

Background. The plaintiff filed this lawsuit in 2014. The amended complaint contained eight counts, including claims for violations of the “Lead Paint Laws.” See G. L. c. 111, § 199. All but three counts were dismissed at the summary judgment stage; the case went forward to a jury trial on counts for breach of the implied warranty of habitability and negligence.⁴ Trial was held in February and March, 2018. The jury returned a defense verdict on both claims that were tried.

Discussion. The plaintiff's appellate brief raises several issues that have to do with the conduct of the trial. None of the issues the plaintiff now raises were properly preserved during the trial. The arguments are accordingly waived. See Costa v. Brait Builders Corp., 463 Mass. 65, 70 (2012), citing Carey v. New England Organ Bank, 466 Mass. 270, 285 (2006). This court generally will not address arguments of trial error in a civil case, where such arguments were not raised before the trial judge. See Costa, 463 Mass. at 70.⁵

For purposes of completeness, we nevertheless briefly address the plaintiff's arguments, none of which have merit. It was not a violation of the First Amendment to the United States Constitution for the judge to prevent the plaintiff from using certain terms before the jury -- such as “lead paint poisoning” or “plumbism” -- where there was no expert testimony that the daughter suffered from such maladies. One of the trial judge's roles is to control what evidence and argument is submitted to a jury. See Chandler v. FMC Corp., 35 Mass. App. Ct. 332, 338 (1993); Commonwealth v. Sapoznik, 28 Mass. App. Ct. 236, 241 n.4 (1990). While the control or exclusion of evidence or argument is of course a restriction on speech, a litigant does not have a First Amendment right to speak at will in a court room. “[I]t is unquestionable that in the courtroom itself, during a judicial proceeding, whatever right to ‘free speech’ an attorney has is extremely circumscribed.” Matter of Cobb, 445 Mass. 452, 467 (2005), quoting Gentile v. State Bar of Nev., 501 U.S. 1030, 1071 (1991). Rather, it is a long established, fundamental, and necessary judicial function to control the time, place, and manner of what is said in a court room -- including the provision of evidence. There was no First Amendment violation here.

There also was no error in having the jury deliberate on a day when there was a snowstorm, and the plaintiff does not suggest how she was prejudiced by the same. Similarly, the plaintiff does not indicate the relevance of the New York case she now cites -- Dakota Jade T. v. New York City Hous. Auth., 49 N.Y.S.3d 446 (2017). The case would not be binding precedent in our courts, in any event. Finally, the law does not recognize a claim of ineffective assistance of counsel in this kind of private civil case.⁶ See Commonwealth v. Patton, 458 Mass. 119, 124 (2010) (“As a general rule, there is no right to the effective assistance of counsel in civil cases”).

Judgment affirmed.

FOOTNOTES

4.   The trial judge reserved for himself the third count that survived summary judgment, under G. L. c. 93A. After the jury verdict the judge also entered judgment for the defendant dismissing the case.

5.   The plaintiff does not argue that there was error in the summary judgment orders, which eliminated several of the counts in the plaintiff's amended complaint.

6.   The defendant filed a motion to dismiss in this court seeking to dismiss the appeal by the plaintiff, the mother, because the daughter is no longer a minor, having now reached the age of majority. Given our resolution herein, we need not address the issue. The motion is denied as moot.