HOYT v. LR PROPERTIES LLC (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs, a family of four, rented a house from the defendants for approximately three years. The house was plagued with flooding and moisture problems, which led to mold growth, but the defendants did not conduct mold testing or remediation despite multiple complaints from the plaintiffs and a prior tenant. The plaintiffs eventually vacated the premises and brought suit claiming, among other things, that the defendants breached the warranty of habitability and violated G. L. c. 93A.⁴ A jury found for the plaintiffs on breach of warranty of habitability and awarded damages. The trial judge then doubled those damages after determining that the defendants willfully or knowingly violated c. 93A. The defendants appeal, challenging the denial of their motion to conduct a psychiatric examination of one of the plaintiffs, the admission of expert testimony under Daubert-Lanigan,⁵ the denial of their motions for a mistrial, the G. L. c. 93A determination, and the denial of their motion for a new trial. We affirm.

Psychiatric examination. The defendants claim error in a motion judge's denial of their motion to conduct a psychiatric examination of plaintiff Maria Conversano (Maria). A judge may “order any party to submit to a physical [or mental] examination by a physician only if his [or her] physical [or mental] condition is ‘in controversy’ and if the moving party has established ‘good cause’ for the test to proceed.” Doe v. Senechal, 431 Mass. 78, 81 (2000), cert. denied, 531 U.S. 825 (2000), quoting Mass. R. Civ. P. 35, 365 Mass. 793 (1974). We review the denial of a motion to conduct such an examination for an abuse of discretion. See Doe, supra at 84.

Here, the judge properly concluded that the defendants failed to show that Maria's mental condition was in controversy or that good cause justified an examination. The judge determined that, because the plaintiffs' emotional distress claims were dismissed and Maria did not “allege any specific ongoing mental or psychiatric injury or disorder resulting from the defendants' conduct,” her mental condition was “only relevant to the general emotional pain and suffering all [the] plaintiffs[ ] allege in connection with their remaining claims.”⁶ The judge also determined that the defendants “failed to demonstrate the need for a psychological examination of this particular plaintiff beyond some vague, theoretical relevance.” The judge's decision was well reasoned, supported by the record, and reflects no abuse of discretion.

Daubert-Lanigan. The defendants filed a motion to exclude the testimony of the plaintiffs' treating physician and medical causation expert, Dr. Thomas Johnson, as scientifically unreliable. Before ruling on the motion, the trial judge conducted a voir dire, during which Dr. Johnson testified that he was board certified in allergy, immunology, and internal medicine, had practiced medicine for over forty years, and had seen over 50,000 allergy patients. Dr. Johnson detailed his examinations and diagnoses of the plaintiffs and explained that he used a generally accepted technique, an allergy skin test, to determine whether they had mold sensitivities. He also described various authorities, including peer-reviewed studies, supporting his opinions that connected the plaintiffs' ailments to their mold exposure. After the voir dire, the judge denied the defendants' motion to exclude the testimony.

The admission of scientific expert opinion testimony is governed by the well-known Daubert-Lanigan standard. See Commonwealth v. Camblin, 478 Mass. 469, 475 (2017). The judge, acting as gatekeeper, must conduct a “preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994), quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-593 (1993). The judge must focus this inquiry “solely on principles and methodology,” rather than conclusions. Daubert, supra at 595. We review a judge's decision to admit expert testimony for an abuse of discretion. See Camblin, supra at 475.

We see no abuse of discretion. After the voir dire, the judge determined that the proposed testimony was sufficiently reliable to be presented to the jury. The judge noted that “[t]hese are [Dr. Johnson's] areas of specialty” and reasoned that Dr. Johnson was relying on mold literature, including peer-reviewed studies, and his extensive clinical experience as support for his opinions. It was within the judge's discretion to determine that the underlying basis of Dr. Johnson's proposed testimony was scientifically valid and that he could properly apply the medical knowledge and methodology within his expertise to arrive at his conclusions. Although the defendants attack Dr. Johnson's opinions and claim that those of their expert were more persuasive, that was an issue for the jury, not the judge as gatekeeper. See Commonwealth v. Roberio, 428 Mass. 278, 281 (1998).

G. L. c. 93A. We discern no error in the trial judge's ruling that the defendants' actions violated G. L. c. 93A. Based on the jury's findings, the judge determined that the defendants materially breached the warranty of habitability, causing harm to the plaintiffs. As a result, he determined that the defendants engaged in an “unfair or deceptive act or practice” in violation of c. 93A. See G. L. c. 93A, §§ 2 (a), 9. This conclusion is supported by the evidence and the case law. See Cruz Mgt. Co. v. Thomas, 417 Mass. 782, 790 (1994) (landlord's “substantial and material breach of the implied warranty of habitability” was c. 93A violation).

In addition, the judge's factual findings, which we summarize in brief, support his conclusion that the defendants' violation was “willful” or “knowing.” G. L. c. 93A, § 9 (3). Former tenant Theresa Meigs complained to the defendants about chronic dampness and mold multiple times, but the defendants told her that the mold was “nothing to worry about” and to spray it with bleach. When Meigs discovered mold inside the hallway wall and told the defendants about it, the defendants had the wall repaired, concealing the mold, instead of conducting mold testing or remediation. During their tenancy a few years later, the plaintiffs complained to the defendants about mold several times and provided photographs. The plaintiffs then discovered extensive mold inside the hallway wall. Based on these findings, the judge concluded that “the facts prove that the defendants did know that there was mold in the house and for years made no effort to remove the mold or evaluate the risks it posed to the plaintiffs.” The judge's findings are supported by the evidence and justified his determination that the defendants' c. 93A violation was willful or knowing.⁷

Motions for mistrial. The defendants argue that the trial judge erred by denying their two motions for a mistrial. A “[m]istrial connotes an interruption of the trial because justice may not be done if the trial continues.” Holder v. Gilbane Bldg. Co., 19 Mass. App. Ct. 214, 218 (1985). “We review a judge's decision not to declare a mistrial for [an] abuse of discretion.” Evans v. Lorillard Tobacco Co., 465 Mass. 411, 459 (2013).

We discern no abuse of discretion here because none of the errors claimed by the defendants irretrievably tainted the jury. The defendants first argue that they were prejudiced by an incorrect suggestion in the plaintiffs' opening statement that all of the plaintiffs were allergic to mold. Even assuming this issue is preserved despite the lack of a clear objection, the judge instructed the jury, both at the start and end of trial, that opening statements are not evidence. In addition, while the defendants claim that they were prejudiced by Meigs's reference to a cancer diagnosis, the judge struck that testimony, instructed the jury to disregard it, and explained that there was no evidence that Meigs's cancer was connected to her tenancy. We presume that the jury followed the judge's instructions. See Harris-Lewis v. Mudge, 60 Mass. App. Ct. 480, 490 (2004).

The defendants also claim that they were prejudiced by misstatements about a legal relationship between the plaintiffs' counsel and Meigs. The defendants have failed to demonstrate either the existence of misstatements or incurable prejudice. Meigs testified that she was not represented by the plaintiffs' counsel, which counsel confirmed at sidebar. To the extent the plaintiffs' counsel represented otherwise during Meigs's deposition, the defendants could have cross-examined Meigs on the issue, but failed to do so. The judge was well within his discretion in declining to declare a mistrial on this basis.

Motion for new trial. Claiming numerous trial errors, the defendants challenge a second motion judge's denial of their motion for a new trial.⁸ Having carefully reviewed the motion, we conclude that only one issue was adequately briefed both in the motion and on appeal.⁹ That issue is whether the defendants are entitled to a new trial because Dr. Johnson's voir dire and trial testimony purportedly “repudiated” authorities that he relied on in an affidavit submitted before trial.

“The standard a judge should apply in determining whether to allow a motion for a new trial in a civil case ․ is relatively high.” Wahlstrom v. JPA IV Mgt. Co., 95 Mass. App. Ct. 445, 447 (2019). A motion for a new trial “is not a mechanism to challenge individual [trial] errors,” and “the judge should not take it upon [herself or] himself to nullify a jury's verdict by granting a new trial unless it appears on a survey of the whole case that otherwise a miscarriage of justice would result.” Id., quoting Evans v. Multicon Constr. Corp., 6 Mass. App. Ct. 291, 295 (1978). On appeal “[w]e grant considerable deference to a judge's disposition of a motion for a new trial,” and “we will reverse the ruling only for an abuse of discretion.” Gath v. M/A-COM, Inc., 440 Mass. 482, 492 (2003).

The judge did not abuse his discretion in denying a new trial. Neither Dr. Johnson's voir dire testimony nor his trial testimony amounted to a “repudiation” of his prior opinions; rather, his testimony addressed the development of medical knowledge over time. As he explained, mold research “has expanded exponentially since [2004],” and “[e]verything before 2018 is ․ dated in some fashion or mode because the changes that occur in medicine occur rapidly every year in every field.” The defendants lodged no objection to this testimony and had the full opportunity to cross-examine Dr. Johnson about the authorities he relied on, their current relevance, and the weight he attributed to them. The judge was well within his discretion to find that there was no miscarriage of justice.

Appellate fees. The plaintiffs are entitled to an award of appellate attorney's fees, requested in their brief, reflecting the time spent defending that portion of the judgment concerning the c. 93A claim. See Bonofiglio v. Commercial Union Ins. Co., 412 Mass. 612, 613 (1992); Quinton v. Gavin, 64 Mass. App. Ct. 792, 801 (2005). The plaintiffs may submit an application for such fees and costs, with supporting documentation, to this court within fourteen days of issuance of the rescript. See Fabre v. Walton, 441 Mass. 9, 10-11 (2004). The defendants shall have fourteen days to respond.

Judgments affirmed.

Order denying motion for new trial affirmed.

FOOTNOTES

4.   The plaintiffs' other claims were dismissed before reaching the jury.

5.   See Daubert v. Merrell Dow Pharms., Inc. 509 U.S. 579 (1993); Commonwealth v. Lanigan, 419 Mass. 15 (1994).

6.   The judge was within his discretion to reject the defendants' claim that Maria's mental condition was in controversy based on a speculative remark about Munchausen's syndrome by proxy in one of her daughter's medical records.

7.   We disagree with the defendants' claim that the judge's determination was based on an unreasonable inference that the mold remained inside the hallway wall after Meigs discovered it. Although the tenants who lived in the house between Meigs's and the plaintiffs' tenancies did not see mold, there was no evidence that the defendants removed the mold before the wall was repaired or that they later reopened the wall to do so. It was thus reasonable for the judge to infer that the mold remained hidden in place. In any event, the judge's determination did not depend on this inference; his other findings, outlined above, were sufficient to establish that the defendants' violation of c. 93A was willful or knowing.

8.   It appears from the trial court docket that a judge other than the trial judge decided this motion.

9.   Although the defendants spend considerable time challenging the plaintiffs' closing argument, they did not adequately raise those issues in their new trial motion. We note also that the defendants' main complaint -- that the closing improperly asked the jury to award litigation stress damages -- was rejected by the judge, who had the opportunity to see and hear the closing and who did not think that the comment “would be interpreted in that way.” Moreover, the judge instructed the jury that closing arguments are not evidence and further instructed them on the categories of legally compensable damages. See Ayash v. Dana-Farber Cancer Inst., 443 Mass. 367, 406 (2005), cert. denied, 546 U.S. 927 (2005) (presuming that jury assessed damages in accordance with instructions). The defendants did not request any additional curative instruction.