Hicks v. Brox Industries, Inc., 47 Mass. App. 103.

The case involved a catastrophic injury suffered by a motorist on Route 495 when a trailer detached from a neighboring vehicle and struck her automobile. The defendant Brox had contracted with the Commonwealth of Massachusetts to repave a portion of Route 495. The plaintiffs offered an expert who contended that a discrepancy in the height of the pavement during the repaving process had compromised the hitch to the trailer with the resulting accident. However, the expert's testimony as between affidavits and a deposition was inconsistent. The Appeals Court found that the trial judge had correctly allowed the motion of the paving company for summary judgment even after accepting yet another affidavit from the plaintiff's expert which was consistent with his prior pronouncements regarding the location of the alleged defect and the resultant accident. The plaintiff did not demonstrate a reasonable expectation of being able to establish that it was more likely than not that the defendant's actions had caused the accident.

Brusard v. O'Toole, 429 Mass. 597.

This was a medical malpractice action in which the trial court excluded evidence of a chart contained within a learned treatise on the basis that the author of the chart was not the same as the author of the treatise. The Court made reference to its adoption of proposed Massachusetts Rule of Evidence 803. It said the fact that the author of the learned treatise had seen fit to include the work of others within the treatise vouched for its reliability. The Court differentiated between a learned treatise and a compendium, journal or periodical which did not have the same reliability. It concluded that the plaintiff's attorney should have been able to use a chart contained within the learned treatise for the purpose of cross-examining a defense expert. The SJC remarked that the same result would obtain by reference to G.L.c. 233 § 79C and that the treatise author need not be the author of each individual item incorporated in the treatise text. An expert cannot be cross-examined about a discovery or other knowledge developed after the acts complained of . Here, the treatise was published prior to the medical mishap.

Shine v. Vega, 429 Mass. 456.

In this action for medical malpractice, the estate of the deceased who expired some two years after the procedure at issue sought recovery after against an emergency room doctor for intubating the decedent against her will. The plaintiff decedent was a severe asthmatic and the daughter of a physician. The plaintiff was quite knowledgeable concerning her condition. With her sister, she had sought treatment in the emergency room and the situation became somewhat argumentative. Her physician father, then in England, was consulted by telephone by the defendant physician. The decedent was running from the emergency room when the defendant physician ordered that she be restrained and separated from her sister. She was intubated, made a recovery and released the following day. The plaintiffs contend that the experience was so emotionally traumatic that it resulted in her death two years later as a consequence of an asthmatic attack.

The decision was reversed on the basis of the judge's charge to the jury which in essence told them that there was no legal requirement for obtaining the consent of a person for medical treatment in a life threatening emergency. The Court said that the jury should have been told to weigh the extent to which the doctor had sought the decedent's consent for the procedure. The burden of establishing a privilege resided with the defendant.

At retrial, the extent to which the notes composed by the decedent following the subject incident, and prior to her death, would be admissible under the declarations of deceased's persons exception to the hearsay rule was addressed. The defendant wanted to exclude them on the basis that they were prepared in anticipation of litigation and therefore not in good faith. The SJC brushed aside the trial judge's concern that the notes were not specifically dated, and said that notes composed in anticipation of a meeting with counsel did not inherently render them to have been composed in bad faith. The notes would be admissible on retrial.

Canavan's Case, 48 Mass. App. Ct. 297.

The plaintiff employee worked as a registered nurse at a self-insured hospital. She alleged that as a consequence of her work in the surgical area, she was exposed to a variety of chemicals which caused her to suffer from a condition entitled "multiple chemical sensitivity" and disabled her from work. The defendant declined to credit the plaintiff's alleged medical condition and refused to pay the expenses associated with the treatment of the same. The admissibility of the testimony and written reports of the plaintiff's medical expert was the focus of the case. In addition to being a pediatrician, the plaintiff's physician was certified in environmental medicine by the American Board of Environmental Physicians, an entity not recognized by the American Board of Medical Specialties. The Court analyzed the admissibility of the testimony of the plaintiff's expert in the context of the criteria set forth in Commonwealth v. Lanigan, 419 Mass. 15 (1994). It found that the criteria for the admissibility of expert testimony, namely that a foundation must be established by showing the underlying scientific theory is generally accepted within the relevant scientific community or showing that the theory is reliable or valid by other means, is not the exclusive criteria for the admission of expert testimony in Massachusetts. It has long been the law that a treating physician may testify as to a patient's bodily condition and ailments as well as the extent to which those ailments affect a patient. The weight to be given to such expert testimony is a matter for the finder of fact. Here, while some of the credentials and conclusions of the claimant's physician were not embraced by the traditional medical community, that did not render them inadmissible.

Santos v. Chrysler Corporation, 430 Mass. 198.

This is an appeal from a substantial award against a motor vehicle manufacturer as a consequence of the deaths of the family of the operator of the subject vehicle. The SJC found that the trial court's inclusion of the testimony of six other owners of the subject minivan to show substantially similar incidents for the purpose of proving the defendant was on notice of a defect and to corroborate the existence of the alleged defect was permissible. The Court did not err in excluding an expert offered by the defendant who planned to draw conclusions from statistical evidence which the Court deemed to be speculative. The trial court's decision to admit evidence of recalls of the products by the defendant manufacturer for the purpose of showing that the manufacturer was on notice of the defect was affirmed. The decision of the trial court to permit the plaintiff's expert's opinions regarding defects in brake design which caused the premature rear wheel lock-up was relevant on the issue of whether the product was unreasonably dangerous. The trial court's decision to permit the testimony of a former employee of the defendant manufacturer regarding his knowledge of the potential dangers posed in the design of a brake system was properly admitted even though this individual had left the employ of the defendant prior to the development of the subject vehicle.

While plaintiff counsel's closing argument for the most part was supported by the evidence and the fair inferences drawn from the same, his reference to personal life experiences and observations as to the truthfulness of certain witnesses' testimony was improper, but was cured by the judge's instructions.

In an action by the sole beneficiary of the estates of decedents for breach of warranty of merchantability and wrongful death, any comparative negligence on the part of the beneficiary was not relevant to the breach of warranty claim. As to the negligence portion of the claim, the comparative negligence of a sole beneficiary would diminish but not bar recovery. It was the intent of the legislature in enacting the wrongful death statute that it would apply to the negligence of the decedents as well as negligent beneficiaries.

Finally, with regard to the crossclaim between the motor vehicle distributor and Chrysler, a finding by the trial judge that the distributor was entitled to common law indemnification resulted in the recovery by the distributor of both attorney's fees, costs for trial and for an appeal. Common law indemnity allows someone who, without fault, is compelled to defend himself against the wrongful act of another and to recover from the wrongdoer the entire amount of his loss, including attorney's fees.

McAllister v. Boston Housing Authority, 429 Mass. 300.

This is an action brought by a tenant against a landlord as a consequence of injuries suffered from a fall on snow and ice on an exterior stairway. The trial judge granted the defendant's motion for a directed verdict as to the count for breach of the warranty of habitability, breach of the covenant of quiet enjoyment and a violation of the lease, leaving only the count for negligence to be decided by the jury. In any civil matter where it is a close question as to whether a motion for a directed verdict should be allowed, the better practice is to permit the matter to be decided by the jury and then act on a motion for a judgment notwithstanding the verdict. In order for there to be a violation of the covenant of quiet enjoyment, G.L.c. 186 §14, the plaintiff must demonstrate negligence. Here, as the jury concluded that there was no negligence, a finding of a breach of that covenant was not feasible. Similarly, where a landlord contracted to move snow and ice from exterior stairs and negligently failed to perform, there could be a violation of the lease. Here, as there was no finding of negligence, that particular count was also subject to a directed verdict.

During the trial, defense counsel used a portion of the plaintiff's deposition to impeach her credibility on the basis of a prior inconsistent statement. The trial court permitted plaintiff's counsel to attempt to rehabilitate the witness by reading additional portions of her deposition testimony. Plaintiff's counsel contended that he was unfairly restricted by the trial judge in his readings. The Court said that the doctrine of verbal completeness does not open the gate for introduction of everything in a document or statement.

The plaintiff complained that the trial judge had prohibited plaintiff's counsel from referring to the state building code in the opening statement and from introducing copies of those code provisions into evidence. The trial court did instruct the jury as to the code, and that any violation of the code would constitute evidence of negligence. The SJC agreed that the instruction was sufficient and that the introduction of the codes was superfluous. The court properly instructed the jury that a violation of a sanitary code or building code was evidence of negligence but was not conclusive as to a breach of the duty of care. This instruction was proper.

Finally, as to the plaintiff's appeal of a directed verdict with respect to the warranty of habitability count, the Court said that the warranty of habitability pertains to significant defects in the property which make it unhabitable. The presence of snow and ice on an exterior stairway does not constitute such a defect.

Tarpey v. Crescent Ridge Dairy, Inc., 47 Mass. App. Ct. 380.

Essentially, this was a product liability action against the producer of dairy products, specifically milk which contained excessive amounts of Vitamin D. The plaintiff's decedent purportedly suffered from elevated levels of Vitamin D in her bloodstream which required medication which in turn allegedly compromised her immune system, leading to her death. The plaintiff's appealed with respect to the admission of testimony by the defendant's medical/scientific expert. The expert had relied upon scientific findings performed in a California laboratory. Neither the principal nor any of the employee's of the lab testified as to their findings. There was also an issue as to whether their methodology was accepted by a substantial portion of the scientific community. The admission of the defendant's expert's testimony was affirmed without the admission of the tests upon which his opinion rested. The Appeals Court remarked that even if the testing methodology had not been accepted by a significant portion of the scientific community, it could be so logically reliable that its general acceptance may be unnecessary. The Appeals Court also pushed aside the plaintiff's contention that there were inconsistent answers in response to the special verdict questions. It pointed out that the plaintiffs had failed to raise the issue in a timely fashion before the jury was dismissed. Moreover, it found that the trial judge's instruction meshed with the verdict slip so that there was no inconsistency. It also reaffirmed the proposition that if there are inconsistent responses to special verdict questions, the dispositive answer is controlling.