Fyffe v. Massachusetts Bay Transportation Authority

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13-P-186 Appeals Court

COLLEEN FYFFE vs. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY &

another. 1

No. 13-P-186.

Suffolk. January 14, 2014. - October 6, 2014.

Present: Trainor, Graham, & Agnes, JJ.

Massachusetts Bay Transportation Authority. Practice, Civil,

Argument by counsel, Conduct of counsel, Opening statement,

Instructions to jury, New trial. Damages, Remittitur.

Civil action commenced in the Superior Court Department on

May 11, 2010.

The case was tried before Judith Fabricant, J., and a

motion for a new trial or remittitur was heard by her.

John J. Bonistalli (Jonathan P. Feltner with him) for the

defendants.

Thomas R. Murphy for the plaintiff.

AGNES, J. As we explain in detail below, this is a case

where, contrary to established law and the trial judge's

numerous cautions and rulings, plaintiff's experienced trial

1

Aiden Quinn.

2

counsel 2 improperly argued (1) facts that were not in evidence,

(2) concepts of liability, despite the parties' stipulation that

the only triable issues related to damages, and (3) that the

jury were the conscience of the community and had a duty in this

case to safeguard users of public transportation in the future.

Plaintiff's counsel also wilfully disregarded the judge's

explicit rulings on a number of issues and, by defiantly

challenging her rulings in front of the jury, undermined her

attempts to remedy his misconduct. As a result of these

numerous transgressions by plaintiff's trial counsel, the judge

was required to "conduct[] the trial under severe and

exasperating handicaps." Stavisky v. Slotnik, 19 Mass. App. Ct.

1028, 1030 (1985). Mindful of the deference we owe the judge's

determination on a motion for a new trial whether such errors

were prejudicial, in this case our review of the record of this

very brief trial (two full days of testimony) persuades us that

the errors committed by plaintiff's counsel, considered in their

totality, "injuriously affected the substantial rights" of the

defendants and deprived them of a fair trial. G. L. c. 231,

§§ 119, 132. Accordingly, despite the judge's commendable

patience, we vacate the judgment and remand for a new trial.

Procedural background. The plaintiff Colleen Fyffe was

injured on May 8, 2009, when the Massachusetts Bay

2

Plaintiff's appellate counsel was not her trial counsel.

3

Transportation Authority (MBTA) trolley in which she was riding

struck another trolley on the MBTA's Green Line in Boston. She

filed suit in Superior Court against the MBTA and the operator

of her trolley, Aiden Quinn, alleging that the defendants were

liable in negligence. Before trial it was agreed that the

plaintiff's trolley crashed due to the negligence of the

operator. 3 The parties stipulated, and the trial judge

instructed the jury, that the sole issue was the amount of money

that would represent fair and reasonable compensation to the

plaintiff for the injuries she suffered as a result of the

defendants' negligence. Also as agreed, the jury were

instructed that punitive damages were not part of the case

before them. The verdict slip called for the jury to provide a

single figure representing the total of all compensatory

damages, with no breakdown of the damages components on which

3

There was no direct evidence of what the operator was

doing in the moments leading up to the crash. In a medical

record that was read to the jury, there is a reference that the

operator of the MBTA train was using a cellular telephone at the

time of the collision. It certainly was a reasonable inference

that the operator, defendant Quinn, was not paying attention to

his driving. However, there was no evidence of "text messaging"

following a voice message as argued by plaintiff's trial

counsel. In any case, because liability was conceded by the

defendants, the judge properly described plaintiff's trial

counsel's references to the operator sending a text message just

before the crash and to a "texting crash" in his opening

statement and closing argument as having no probative value, but

as "inflammatory."

4

they were instructed, such as medical expenses, lost earnings,

and pain and suffering.

The jury returned a verdict awarding the plaintiff $1.228

million in damages. After the entry of judgment, the defendants

timely filed a motion for a new trial or remittitur, asserting

that the verdict was excessive and against the weight of the

evidence; that as a result of deliberate and prejudicial

misconduct by plaintiff's counsel the jurors were exposed to

evidence not presented at trial; and that their verdict was

reached under the influence of passion, sympathy, and prejudice.

After a hearing, the trial judge issued a memorandum of decision

and order denying the defendants' motion. The defendants appeal

from both that order and the judgment.

Evidence at trial. The plaintiff presented evidence that

she was forty-six years old at the time of the crash; that when

the trolleys collided her neck snapped sharply backwards (her

seat faced the rear of her train 4); that she sustained cervical

and lumbar spine injuries; that she incurred medical bills in

the amount of $20,309.66; that she could not return to her job

as a gate agent for Delta Airlines (Delta) because her injuries

prevented the required regular lifting of heavy suitcases; that

her 2008 Delta wages were $32,781; that if she worked full-time

4

We use the terms "train" and "trolley" interchangeably, as

nothing in this case turns on any distinction between the two.

5

for Delta, she could earn up to $40,000 annually plus benefits;

and that in July of 2010 she began working in a restaurant

where, in 2011, she worked two days per week, earning $15,479.

Although the defendants agreed with the plaintiff that the

MBTA trolley operator was negligent, there were a number of

issues they disputed at trial, including the severity and

consequences of the plaintiff's neck injury; whether her lower

back injury, chronic headaches, and depression and anxiety were

preexisting conditions not caused or aggravated by the

collision; the extent to which the plaintiff was disabled from

working; and the adequacy of the proof of damages attributable

to lost earning capacity.

In order to understand the significance of remarks made by

plaintiff's counsel in his closing argument, it is necessary to

set forth something of the testimony of the two medical experts.

The plaintiff's expert, Dr. Francis Rockett, a neurosurgeon,

first saw the plaintiff in December, 2010, about twenty months

following the train crash. 5 He did not review her medical

records from before the May, 2009, crash. Based on a magnetic

resonance imaging (MRI) study of the plaintiff done in June,

5

The plaintiff's medical records indicate that following

the train crash, she treated with her primary care physician who

referred her to a neurosurgeon, Dr. Duggan, who prescribed a

course of physical therapy.

6

2009, 6 he opined that she had a herniated cervical disc. When

asked, over defense objection, "what that herniated disc is

doing," he not only stated it was "pushing against the spinal

cord," but added if the "anterior spinal ligament," which

protects the spinal cord "from further extrusion of the disc,"

did not remain intact, "it would render the patient

quadriplegic." 7 After another objection to a follow-up question,

6

The date of this examination is significant because there

is evidence that following the train crash, the plaintiff

participated in physical therapy and her condition improved

substantially. There is also evidence that she reinjured

herself in October, 2009. Once the plaintiff completed her

initial course of physical therapy relating to her neck on

November 3, 2009, she did not treat again until she saw Dr.

Rockett in December, 2010. At that time he ordered a second MRI

exam for the plaintiff which was limited to her lumbar spine.

The plaintiff's first complaint of lower back pain was not until

February, 2010, nine months after the train crash. Dr. Rockett

recommended that she participate in physical therapy to

strengthen the muscles in her back and abdomen. After a

February 11, 2011, visit, Dr. Rockett saw the plaintiff again in

December, 2011, and May, 2012. Although Dr. Rockett wrote two

prescriptions for physical therapy, the plaintiff did not

utilize the prescriptions.

7

The testimony by Dr. Rockett on this point, in its

entirety, was as follows:

"I can show you what the disc image shows right here. And

that's the static picture. But the thing is that the disc

has protruded out through the ligament, which is herniated

-- means it's herniated, and it's pushing against the

spinal cord. At the same time it's lifting this anterior

spinal ligament which in turn is protecting the cord from

further extrusion of the disc, which if that took all of

that disc material out and pushed it into the spinal cord,

it would render the patient quadriplegic. So if that

little thin ligament that's holding things together for

7

there was a sidebar conference. Counsel for the defendants

pointed out that the subject of quadriplegia had not previously

surfaced in any discovery. Plaintiff's counsel readily admitted

that quadriplegia was "not in question." 8 The judge assumed and

plaintiff's counsel readily acknowledged that the witness was

not going to testify that the plaintiff was a quadriplegic. Dr.

Rockett went on to explain that in March, 2012, he noted the

plaintiff had reported pain radiating down her left arm to her

left hand, and that this pain was the result of the pressure of

the disc against the ligaments in the spinal canal. He added

that the degree of the plaintiff's pain depended on the degree

of pressure against those ligaments. He also opined that the

plaintiff's complaints of low back pain first made about nine

months after the trolley crash, and of headaches (which had also

been a subject of complaints dating back to 2004), were related

her, and as long as that is intact, her condition will be

as we've observed."

Although this testimony was not immediately followed by an

objection, defense counsel's earlier objection to the question,

and his later sidebar statement that the reference by Dr.

Rockett to quadriplegia was outside the scope of pretrial orders

concerning the expert witness testimony, were sufficient to

preserve the issue for appeal.

8

There is no reference to quadriplegia in the pretrial

discovery. In her supplemental answers to expert witness

interrogatories, the plaintiff stated that it was the opinion of

Dr. Rockett that she suffered "9% permanent impairment of the

cervical spine, 15% impairment of the lumbar spine, and 23%

whole person permanent impairment."

8

to that event. Dr. Rockett opined that the collision

permanently disabled the plaintiff from her job as a Delta gate

agent due to the requirement that such workers lift heavy pieces

of luggage. Dr. Rockett did not opine that the plaintiff was

permanently disabled from other types of employment that did not

involve heavy lifting. See note 8, supra.

The jury also heard testimony by means of a videotaped

deposition of Dr. Joseph D'Alton, a board certified neurologist

called by the defendants. Dr. D'Alton did not treat or examine

the plaintiff, but rendered opinions based on a review of the

plaintiff's medical records. He agreed with Dr. Rockett that

the June, 2009, MRI study of the plaintiff's neck revealed a

disc herniation at C4-C5 that was caused by the trolley crash,

but he described the injury far differently from Dr. Rockett. 9

Dr. D'Alton testified that in most such cases the extruded disc

material is reabsorbed by the body and, with physical therapy,

the symptoms go away within six to twelve weeks. In particular,

9

Dr. D'Alton testified that he used the term "herniation"

to describe the plaintiff's condition in June, 2009, because he

uses that term whenever the disc capsule is breached and disc

material is extruded (as opposed to a "disc bulge" or "disc

protrusion," where there is no breach). However, he stated that

there was no evidence that the nerve root or spinal cord was

compressed. He added that the plaintiff's medical records

contain reports that shortly after the train crash, she did not

report any radiating pain down her arm or any sensation of

numbness, which indicates that she did not suffer any nerve

compression. He opined that the plaintiff's report to Dr.

Rockett in May, 2012, of tingling in her hands was most likely

an unrelated symptom of carpal tunnel syndrome.

9

he interpreted the plaintiff's medical records, especially the

notes of her 2009 physical therapy treatment, as indicating that

by November, 2009, she had improved considerably, had only mild

pain, and was fit to return to work with limitations on lifting

for about one month before she would be ready to resume her

regular employment. He also opined that there was no causal

relationship between the plaintiff's lower back problems and the

train crash.

Discussion. 1. Introduction. The defendants contend that

during the opening statement, throughout the presentation of the

evidence, and during closing argument, plaintiff's counsel

violated established rules of practice and evidentiary

standards, frequently in direct violation of a ruling sustaining

a defense objection. Observations made by the trial judge in

her memorandum of decision indicate that she took the same view

of the conduct of plaintiff's counsel, noting, for example, his

"efforts to elicit evidence without any apparent good faith

basis to believe that such evidence would be admissible."

Although the judge responded to some of these violations by

sustaining objections and giving instructions to the jury, we do

not believe the actions taken by the judge cured the prejudice

caused by counsel's misconduct.

2. Opening statement by plaintiff's counsel. "The proper

function of an opening is to outline in a general way the nature

10

of the case which the counsel expects to be able to prove or

support by evidence." Posell v. Herscovitz, 237 Mass. 513, 514

(1921). "It is not an opportunity for argument." Commonwealth

v. Croken, 432 Mass. 266, 268 (2000). In his opening,

plaintiff's counsel made multiple statements about the crash and

the train operator's actions prior to and during the crash,

despite the fact that the parties had stipulated that the

defendants were negligent. For example, counsel told the jury

that as the trolley left Government Center station and

accelerated to full speed, defendant Quinn took out his cellular

telephone and called his girlfriend, leaving a voice message.

The judge sustained an objection and told counsel "to

concentrate on the issue that is before the jury." Plaintiff's

counsel responded by telling the jury that the operator then

composed and sent a text message to his girlfriend as the train

sped by yellow and red warning lights indicating a stopped train

was ahead. Another objection was sustained, and again the judge

instructed counsel, "let's move on to the issue that is before

the jury." Plaintiff's counsel then described for the jury a

scene in which the operator looked up from his telephone and saw

the crash about to occur, despite the fact that there was no

basis for counsel to believe there would be admissible evidence

to support his statement. Despite several admonishments,

plaintiff's counsel persisted in referring to facts that he had

11

no reasonable basis to expect would be proved by the evidence.

Finally, the judge delivered a cautionary instruction to the

jury.

However, plaintiff's counsel disregarded the judge's ruling

and injected facts into the case that were prejudicial, not

probative of the issues, and not supported by admissible

evidence. For example, despite the judge's explicit caution

during a bench conference that counsel not refer to facts that

would not be supported by evidence, counsel continued, "At the

crash people are thrown from their seats in the trains, against

the walls and on to the floor. People are seen with contorted

extremities, bleeding, necks are snapped, and --." Defense

counsel objected again at this point, but the judge did not

respond except by stating, "Counsel, again, you need to confine

yourself to what you have reason to expect is going to come into

evidence." Contrast Rivera v. Club Caravan, Inc., 77 Mass. App.

Ct. 17, 21 (2010) (judge struck plaintiff's counsel's improper

statement as to driver's blood alcohol level and instructed jury

that they would not receive evidence on that subject, that the

statement should not have been made, and that they should

disregard it).

Unlike in A.C. Vaccaro, Inc. v. Vaccaro, 80 Mass. App. Ct.

635, 640-641 (2011), where there was one improper statement in

the opening, in this case there were multiple improper

12

statements. As in Goldstein v. Gontarz, 364 Mass. 800, 811-812

(1974), where an improper statement was the basis for ordering a

new trial, here the improper statements were not probative and

were made deliberately -- and in contravention of the judge's

numerous directives to counsel to confine his statements to the

evidence and to the issue at trial.

3. Closing argument. Prior to the closing arguments, the

judge gave the jurors a comprehensive instruction explaining

that closing arguments were not evidence and reminding them that

they must rely on their own memory of the evidence.

In keeping with customary practice, defense counsel made

the first closing argument, and suggested that the central

question was what is fair and reasonable compensation for the

injuries that the plaintiff suffered as a result of the trolley

crash. Defense counsel attempted to draw a distinction between

fair compensation to the plaintiff for her injuries and a damage

award that was intended to punish the defendants. He discussed

the plaintiff's medical records, and argued that the jury should

credit the opinion of the defense medical expert who opined that

the plaintiff's injuries due to the train collision were not as

significant as she claimed and that some of her complaints were

not related to the defendants' negligence. Defense counsel also

stressed that there was important evidence missing from the case

-- in the sense that there was no evidence of how long the

13

plaintiff, then forty-nine years old, had planned to work -- to

enable the jury to accurately calculate the value of the

plaintiff's loss of earning capacity in the event the jury

believed that she was no longer able to work.

Plaintiff's counsel, in stark contrast to the approach

taken by defendants' counsel, chose not to follow established

rules of conduct during his closing. He told the jurors that

not only were they required to answer the question submitted by

the judge, but that each juror had a duty to explain to the

other jurors the reason or reasons for deciding each issue in a

particular way. Defense counsel objected, but the judge

deferred a ruling on the matter. Plaintiff's counsel next not

only argued that the defendants' apologies were "h[o]llow," but

in direct violation of earlier rulings by the judge and settled

principles of evidence law, he added that the defendants had

failed to take corrective action to prevent such collisions from

happening in the future. See Mass. G. Evid. § 407(a) (2014)

(evidence of subsequent remedial measures generally

inadmissible). 10 A defense objection was sustained, and the

10

Plaintiff's counsel argued as follows:

"I want to take you back at the moment, right to the

beginning of the trial, though, to the first thing that you

heard from the MBTA and Aiden Quinn through their counsel.

It was an apology. An apology that I suggest to you was

h[o]llow, feigned apology. And as my mother told me many

times when I was young, did something I wasn't supposed to

14

judge told plaintiff's counsel to confine himself to the issue

before the jury, but plaintiff's counsel followed immediately by

telling the jurors that the defendants had forced the plaintiff

to bring this lawsuit. Another objection was lodged by defense

counsel and sustained by the judge, who again instructed

plaintiff's counsel to confine himself to the issue and the

evidence. Plaintiff's counsel responded by disagreeing with the

judge's ruling and by repeating the suggestion that the MBTA had

not taken responsibility for the plaintiff's injury. Another

objection was made by defense counsel, to which the judge

responded by delivering a cautionary instruction. 11

do, and then, 'Oh, I'm sorry,' she said, 'It's too little,

too late.' And that's what this apology is. Too little,

too late. The question is: What has the MBTA done to

prevent this from happening again?"

See Mass. G. Evid. § 409(a) (2014) (generally, expressions of

sympathy by a defendant for the injury suffered by a plaintiff

are not admissible).

11

The judge made these remarks to counsel and the jury:

"I'm going to interrupt you for just a moment, Counsel.

Jurors, as I told you, the issue before you is to decide,

based on the evidence that has been presented in this

trial, to decide what amount of damages will fairly and

adequately compensate the plaintiff for the injury

suffered. And I will be explaining to you the components

of that injury. The function of closing argument is to

discuss the evidence that has been presented on that issue.

That is the damages incurred by this plaintiff and the

amount of money that would be fairly and adequately

compensate this plaintiff for the damages that she has

incurred. So, Counsel, confine yourself to that issue,

please."

15

Plaintiff's counsel responded to the judge's caution with a

polite "[t]hank you, Your Honor," and, with his next breath,

returned to his theme that the MBTA blamed the plaintiff and was

not taking responsibility for her injuries: "What the MBTA has

done in talking about the damages sustained by Colleen Fyffe, is

to try to present to you a lack of responsibility. To try to

blame Colleen Fyffe, blame other things going on in her life,

and shed their responsibility and blame everything else.

They've looked through every one of her drawers, looked into her

cupboards, looked into her medical --[.]" Another objection was

made by defense counsel, and again, the judge instructed

plaintiff's counsel to confine himself to the evidence.

A few moments later, plaintiff's counsel returned to his

theme that the MBTA sought to blame the plaintiff for her

injuries, which led to another objection and another caution by

the judge, who instructed plaintiff's counsel to finish and

stated she would discuss the matter with counsel at sidebar

after the argument.

Plaintiff's counsel then sailed into another theme by

arguing that the jury should be aware that this was an

"important coverage case," that there may be media coverage of

it, and that it would be the first verdict after the train

16

crash. 12 Following another objection, the judge gave yet another

cautionary instruction telling jurors to disregard any

consideration of media coverage. 13

Plaintiff's counsel moved on to discuss his client's

injuries, limitations, and ongoing impairment for the next few

minutes of his closing. He told the jury that all the doctors,

including the defendants' medical expert, Dr. D'Alton, agreed

that the plaintiff suffered a "severe injury." Counsel then

made an unveiled reference to Dr. Rockett's testimony on the

possibility that the plaintiff could become a quadriplegic:

"This herniated disc at C-4/5, which has left the disc

space and entered into the spinal canal, impinging on our

spinal cord, being held back from further damage to that

spinal cord now by only a very thin fragile membrane. That

thin fragile membrane being the only thing that is

preventing, or presently, at this moment, holding back the

12

Plaintiff's counsel stated,

"Now, your job in this case is a very important one.

Again, as both the Court and myself indicated to you, it's

a very important coverage case. There could be media

coverage on this case, and this is the first verdict. Your

verdict will be the first."

13

The judge told the jurors,

"Jurors, you will disregard any media coverage and any

thought that there might be media coverage. Your job here

is to decide the facts of the damages incurred by this

plaintiff and to decide the amount that will fairly and

adequately compensate her for the damages she has suffered.

It is of no significance whether there has been media

coverage, whether there will be media coverage. Put that

entirely out of your mind. Counsel, again, let's focus on

the evidence, please."

17

further herniation of that disc into Colleen Fyffe's spinal

cord with the potential, with a risk that she lives with

every day of very, very grave consequences. They don't

want to talk about that."

Defense counsel objected and the judge sustained the objection,

but plaintiff's counsel responded by arguing with the judge,

before the jury, that what he had said was "exactly what the

evidence was." The judge again told plaintiff's counsel to

confine himself to the evidence of the damages suffered by the

plaintiff, and he responded, again before the jury, "that's

exactly what I'm talking about, Your Honor." What then followed

was yet another attempt by plaintiff's counsel, in violation of

the judge's explicit prior rulings, to use the testimony of Dr.

Rockett to summon the image of his client as a person standing

on the precipice of quadriplegia:

"This damage that Colleen Fyffe suffered to her spinal

column, to this herniated disc is one that she lives with

every day. She lives with not only the pain, not only the

function or loss, not only the effects on every part of her

life, but with the risk of the further harms that sit in

the background and will sit in the background for the rest

of her life. And your determination on this case will be

the final determination. Your verdict will be the only

verdict on this case. Your verdict will be the verdict

forever. Now, Colleen Fyffe's injury was -- is not static.

It is one as described by the medical evidence in the case,

by Dr. Rockett, as one that changes. It changes all the

time and it changes in part based upon use. The more

stress, strain, use that Colleen Fyffe placed on her neck,

it changes the disc. She every day walks a tightrope of

whether or not there's going to be further injury from this

disc. Whether or not this membrane that is holding the

disc back now from the spinal column is going to stay

there. Whether it's going to hold."

18

Later, when plaintiff's counsel finally came to the issues

of causation and the various components of her damages, he

injected the following: "It was the MBTA's choice to save the

money on a seat without a head restraint." There is no evidence

in the case to support this remark, which was, in any event,

irrelevant to the question before the jury. Defense counsel

objected and once again the judge told plaintiff's counsel to

confine himself to the issue of damages.

After some skirmishing over whether plaintiff's counsel

should specify the amount of damages she was seeking, another

remarkable exchange occurred that illustrates that plaintiff's

counsel was acting in conscious disregard of the law as well as

the judge's repeated instructions:

Plaintiff's counsel: "On this case, you as this jury, as

the jury in all cases that we do, is considered by the

courts to be the conscience of the community. It is your

job as the conscience of the community –-"

Defense counsel: "Objection, Your Honor."

Plaintiff's counsel: "-- to determine --"

The judge: "I'm going to be explaining to the jury their

function. The only issue before the jury is the amount of

the damages. Counsel, you've used up your time. Let's

finish now."

Plaintiff's counsel: "Okay. As this jury, you are the

guardians of the safety of all of the moms, all of the

dads, and all of the children, and all of the grandparents

that ride in these trains. It is your –-"

Defense counsel: "Objection, Your Honor."

19

Plaintiff's counsel: "-- decision --"

Defense counsel: "Objection."

Plaintiff's counsel: "-- that --"

Defense counsel: "Move to strike any comment that --"

The judge: "I'll address it. Counsel, finish up, please."

Plaintiff's counsel: "Thank you, Your Honor. It is your

decision that will make the determination as to what the

responsibility is by the MBTA for the protection of these

people, the paying passengers of its trains. Thank you."

The judge: "I'll see counsel at sidebar."

At sidebar, 14 the judge informed counsel that she would address

the improprieties in the closing argument by instructing the

jury (1) that their role was to fix the compensation due to the

plaintiff and not to punish the defendants, (2) that a juror is

not under any obligation to explain his or her thinking to the

other jurors, and (3) that because liability was not an issue,

they were not required to determine how the trolley had been

operated, or the nature of the seat or other equipment. 15

14

As the sidebar conference began, an emphatic defense

counsel made it clear that he was looking to the judge to take

strong corrective action: "I've been doing [closing arguments]

for 37 years, and I've never heard anything as outrageous as

that, Your Honor. . . . [I]t is appalling how far outside what

appropriate argument that was to the point of almost every time

I stood up. . . ." See Harlow v. Chin, 405 Mass. 697, 703 n.5

(1989) ("I've never heard an argument like that, and I hope I

never hear one like it").

15

The judge specifically rejected the argument by defense

counsel that it was improper for plaintiff's counsel to suggest

to the jury in closing argument that the plaintiff should be

20

However, she did not give any instructions on these matters at

that time, instead moving on to the final jury charge.

In her final instructions, the judge addressed in direct

fashion two aspects of the numerous acts of misconduct committed

by plaintiff's trial counsel. First, she instructed the jury

that "[t]he news media is entirely irrelevant to your task in

this case. You should give no thought to how the news media, or

anyone else, might report on your verdict or might react to

you." Second, she told the jurors, "you don't have any sort of

obligation to explain yourself to anyone. It can be helpful in

the course of deliberation if, when you express a view, you

explain why you hold that view, and sometimes if you give an

explanation, you persuade other jurors. But you have no

obligation in the course of your deliberations or at any other

time to explain your views to anyone." However, beyond these

instructions that related to specific errors by plaintiff's

trial counsel, the judge did not specifically address his other

compensated $760,000 for loss of earning capacity solely on the

basis of evidence that the plaintiff earned $40,000 per year

prior to the train crash by assuming she would have worked until

sixty-five years of age. The judge reasoned that jurors "can

draw their own inference about how long she would have worked,

and they can do arithmetic." When defense counsel argued that

it was necessary to reduce such a calculation to its present

value, the judge acknowledged that there was no expert testimony

in the case on that question, but that the jury could use their

common sense and common knowledge to arrive at the correct

figure. In view of the result we reach, we need not address

this issue.

21

misconduct, such as (1) referring to facts about the train crash

that were not in evidence, (2) stating that the MBTA had tried

to save money by installing a seat without a head rest, (3)

stating that the MBTA had not corrected the problems that caused

the plaintiff's injury, that the MBTA forced the plaintiff to

bring the lawsuit, and that it subjected her to unfair scrutiny,

(4) arguing that the medical evidence was that the plaintiff

lived with the daily risk of becoming a quadriplegic, and (5)

arguing that the jury "are the guardians of the safety of all of

the moms, all of the dads, and all of the children, and all of

the grandparents that ride in these trains." Instead the judge

relied upon standard language that compensatory damages are

meant to remunerate the plaintiff, not punish the defendants;

that the jurors were to decide the case based on the evidence;

that the lawyers' arguments are not evidence; and that the jury

had the right to believe or disbelieve the testimony of any

witness, including the medical experts. 16

16

For example, the judge instructed the jury that "[t]he

opening statements and the closing arguments of the lawyers are

not evidence. They're only intended to assist you in

understanding the contentions of the parties."

The judge also instructed the jury,

"You are free to reject the testimony and opinion of [an

expert] witness in whole or in part if you determine that

the witness's opinion is not based on sufficient education

and experience, or that the testimony of the witness was

motivated by some bias or interest in the case. You must

22

4. The conduct of plaintiff's counsel caused prejudicial

error. In her memorandum of decision on the defendants' motion

for a new trial or remittitur, the judge acknowledged that

plaintiff's counsel engaged in misconduct and that he lacked any

good faith basis for his actions. The judge wrote:

"The defendant[s] point[] to improprieties in the conduct

of plaintiff's counsel, particularly during opening

statement and closing argument, and suggest[] that

counsel's conduct may have led the jury to act based on

passion and prejudice rather than reason. The Court agrees

that plaintiff's counsel repeatedly exceeded well-

established boundaries in both opening and closing, as well

as in efforts to elicit evidence without any apparent good

faith basis to believe that such evidence would be

admissible." 17

also, as I have explained, keep firmly in mind that you

alone decide what the facts are. If you conclude that an

expert's opinion is not based on the facts as you find

those facts to be, then you may reject the testimony and

opinion of the expert in whole or in part. You must

remember that expert witnesses do not decide cases. Juries

do. In the last analysis, an expert witness is like any

other witness in the sense that you alone make the judgment

about how much credibility and weight you give to the

expert's testimony, and what conclusions you draw from that

testimony."

17

In a footnote, the judge was more specific:

"The most obvious example of efforts to elicit inadmissible

testimony is counsel's questioning of the plaintiff

regarding details of the conduct of the MBTA operator that

caused the collision, of which she had no personal

knowledge, and which had no relevance to damages, which was

the only issue before the jury. Examples of improprieties

in closing argument include counsel's statements that

'there could be media coverage' of the jury verdict, and

that 'you are the guardians of the safety of all of the

moms . . . .' Counsel is no novice, whose conduct might be

attributed to inexperience or inadvertence. The Court can

only infer that counsel made a calculated choice to go as

23

However, the judge ultimately concluded that the curative

instructions given to the jury sufficed to cure any prejudice to

the defendants.

(i) Standard of review. The first question we must

address is the standard of review. The plaintiff argues that

our review on appeal from the denial of a motion for a new trial

is limited to determining whether the judge abused her

discretion. See Commonwealth v. Johnson Insulation, 425 Mass.

650, 668 (1997), citing Bartley v. Phillips, 317 Mass. 35, 41-43

(1944). We show great deference to the view taken by the trial

judge in denying a new trial motion when the argument on appeal

is based on the weight of the evidence, whether the damages

awarded are excessive, or the impact of newly discovered

evidence. See, e.g., Mirageas v. Massachusetts Bay Transp.

Authy., 391 Mass. 815, 822 (1984); Robertson v. Gaston Snow &

Ely Bartlett, 404 Mass. 515, 520, cert. denied, 493 U.S. 894

(1989); VanAlstyne v. Whalen, 15 Mass. App. Ct. 340, 349-350

(1983). However, this case is also before us on direct appeal

from the judgment. Therefore, the deferential standard

applicable to review of the new trial motion does not relieve us

of the duty to examine the record to determine whether

instructions that were given or not given by the judge when a

far he thought he could get away with."

24

matter was properly brought to her attention amounted to an

error of law, and to assess whether the error was prejudicial. 18

See Hart v. Morris & Co., 259 Mass. 211, 214-215 (1927).

Whether remedial instructions given during the trial in response

to an objection that is sustained or at the conclusion of the

trial during the judge's final charge are adequately curative

18

The plaintiff does not argue on appeal that the

defendants did not properly preserve for appellate review the

errors committed by her trial counsel and the adequacy of the

trial judge's response. See Mass.R.A.P. 16(a)(4), as amended,

367 Mass. 921 (1975); Mass.R.A.P. 16(b), as appearing in 411

Mass. 1602 (1992). The dissent nonetheless maintains that the

defendants have "waived" the issue of prejudice resulting from

the conduct of plaintiff's trial counsel. Post, at ____. Even

if the plaintiff had raised the issue, there is an important

distinction between a "waiver" and a "forfeiture." See Smith v.

Kmart Corp., 177 F.3d 19, 25 (1st Cir. 1999) (explaining that by

the "overwhelming weight of . . . authority," appellate courts

are authorized to apply the plain error doctrine to remedy the

consequences of egregious errors made in a closing argument

though not properly preserved); Cadorna v. City and County of

Denver, 245 F.R.D. 490, 495 (D. Colo. 2007) (waiver analysis not

appropriate; court retains power to remedy unfair prejudice

caused by improper conduct of counsel). See also Murphy v.

International Robotic Sys., Inc., 766 So. 2d 1010, 1024-1026

(Fla. 2000) (collecting cases). There are Massachusetts cases

along the same lines. See Michnik-Zilberman v. Gordon's Liquor,

Inc., 390 Mass. 6, 9-10 (1983); Flood v. Southland Corp., 416

Mass. 62, 67-68 & nn.5-6 (1993); Hatton v. Meade, 23 Mass. App.

Ct. 356, 362 (1987); Squibb v. R.M. Bradley & Co., 40 Mass. App.

Ct. 914, 915 (1996).

Although a trial judge has discretion and at times a duty

to act sua sponte to prevent and cure improper closing argument,

see Commonwealth v. Olmande, 84 Mass. App. Ct. 231, 241 n.4

(2013) (Agnes, J., concurring), counsel also have an important

role to play. Counsel not only should assist the judge by

suggesting an appropriate curative instruction, but inform the

judge why a curative instruction that is given is not adequate.

25

presents a question of law. See Goldstein v. Gontarz, 364 Mass.

at 811.

(ii) Determining whether there was prejudicial error. To

properly assess the errors committed by plaintiff's trial

counsel in this civil case, it is instructive to consider the

framework that is used to evaluate allegations of misconduct by

counsel in criminal cases, notwithstanding obvious differences

in the review that takes place in criminal appeals. We consider

"(1) whether the defendant seasonably objected; (2) whether the

error was limited to collateral issues or went to the heart of

the case; (3) what specific or general instructions the judge

gave to the jury which may have mitigated the mistake; and (4)

whether the error, in the circumstances, possibly made a

difference in the jury's conclusion." Commonwealth v. Lewis,

465 Mass. 119, 130-131 (2013), quoting from Commonwealth v.

Kater, 432 Mass. 404, 422-423 (2000). See Commonwealth v.

Kozec, 399 Mass. 514, 518 (1987). The record here indicates

that the defendants seasonably and repeatedly objected; that the

misconduct by plaintiff's counsel related to the central issues

in dispute; that although the judge responded to many of

counsel's improper statements, the corrective measures taken

were not sufficient to negate the prejudice; and that the

cumulative effect of counsel's misconduct deprived the

defendants of a fair trial. In particular, on several occasions

26

during his closing argument, plaintiff's trial counsel

challenged the judge in front of the jury as she instructed him

to confine himself to the evidence. We also attach significance

to the fact that during his closing argument to the jury,

plaintiff's trial counsel was permitted to state that in

assessing fair compensation for her injuries, the jury should

consider the possibility that at any time in the future, without

warning, the plaintiff would become a quadriplegic because "a

very thin fragile membrane," which was all that protected her

spinal column from a herniated disc, could fail to hold the disc

back from her spinal cord. This was not within the realm of a

reasonable inference from the medical evidence, and invited the

jury to speculate about the central issue in the case -- fair

compensation for the injury suffered by the plaintiff.

An isolated remark, even several remarks in a closing

argument that make reference to matters that are not in

evidence, when followed by an objection and a curative

instruction directing jurors to disregard the remark, will not

support an argument on appeal that there was prejudicial error

requiring a new trial. See, e.g., Haddad v. Wal-Mart Stores,

Inc. (No. 1), 455 Mass. 91, 112 (2009). While much is left to

the discretion of the trial judge in assessing the impact of

errors in a closing argument, see Gath v. M/A-Com, Inc., 440

Mass. 482, 495 (2003), this case stands apart from most cases in

27

which errors in a closing argument are alleged to require a new

trial. In this case, in which the evidence unfolded over the

course of only two days, the improper remarks permeated the

opening and closing arguments, with plaintiff's experienced

counsel deliberately disregarding the judge's directives and

pretrial rulings, openly arguing with her, and defiantly,

forcefully, and repeatedly making irrelevant and prejudicial

statements. 19 We do not believe the judge's final charge was

sufficient to counter the damage. See Goldstein v. Gontarz, 364

Mass. at 811. Defense counsel's numerous objections at trial,

especially during plaintiff's counsel's closing argument, were

sufficient to call the misconduct of opposing counsel to the

judge's attention and to impose on her a duty to take corrective

action. See Harlow v. Chin, 405 Mass. 697, 703 n.5 (1989); note

14, supra. While the trial judge was unfailingly patient and

issued numerous cautions to plaintiff's trial counsel, the steps

that were taken were not sufficient.

19

It is possible that even immediate curative actions would

not have been sufficient to cure the prejudice. See Hess v.

Boston Elev. Ry., 304 Mass. 535, 541 (1939). See also

Krulewitch v. United States, 336 U.S. 440, 453 (1949) (Jackson,

J., concurring). Plaintiff's counsel's open defiance was on

display throughout the trial. For example, during the testimony

of the plaintiff's former supervisor, when the judge instructed

plaintiff's counsel that he could ask the witness about the

requirements of the plaintiff's job, not about assumptions

related to her physical condition, he responded: "I think with

that restriction, Your Honor, I probably can't ask this witness

the question that the jury would like answered."

28

Our conclusion as to unremedied prejudice finds support in

the amount of the damages awarded by the jury. In denying the

defendants' motion for a new trial or remittitur the judge

reasoned in part that relief was unwarranted because the $1.228

million damages award was not disproportionate to the evidence.

Although we are not prepared to say that the judge abused her

discretion in denying remittitur, 20 we take the view that because

the amount awarded seems to lie in the upper range of what may

be borne by the evidence, it suggests a significant risk that

the jury's assessment of damages was affected by the numerous

improprieties of plaintiff's counsel. 21 Perhaps chief among

20

On the other hand, based on the evidence, the judge was

not foreclosed from taking the opposite course.

21

We note here our misgivings about the judge's rough

estimate that "the jury could fairly have assessed the value of

the plaintiff's lost earnings and loss of earning capacity in an

amount in the range of one million dollars." The judge based

her calculation on what she took as the plaintiff's annual

salary at Delta as a gate agent prior to the trolley crash

($40,000), added to it the plaintiff's estimate of the annual

cost of obtaining the equivalent of the private health insurance

she lost ($12,000), and multiplied the sum by twenty based on

the assumption that the plaintiff would have continued working

at that rate for another twenty years but for the injuries she

suffered in the trolley crash. The evidence was that the

plaintiff could earn up to $40,000, but does not permit the

assumption that her wages at the time of the collision were in

that amount. The evidence showed that working for Delta, the

plaintiff earned $26,000 in 2006, $33,000 in 2007, and almost

$33,000 in 2008. In 2009 before the crash, the plaintiff took

advantage of a Delta furlough program, which permitted gate

agents to take unpaid leaves of absence, as soon as the program

became available. In fact, the plaintiff applied to extend her

leave of absence beyond April, 2009, and was granted another

29

these is the argument by counsel that the plaintiff would live

every remaining day of her life with the real possibility of

becoming a quadriplegic, where there was no record evidence to

support such speculation.

The judge reasoned in part that "the consequences of

counsel's fault should not be visited on his client." However,

that is not the question before us. Ultimately, the question

before us is whether there was an unacceptable risk that

plaintiff's counsel's misconduct had a material effect on the

jury's decision. Application of the prejudicial error standard

under G. L. c. 231, §§ 119, 132, requires us to undertake a

case-by-case analysis. The substantial rights of a party are

adversely affected when, "viewing the record in a commonsense

way," the misconduct of a party or counsel "could have made a

material difference" in the outcome. DeJesus v. Yogel, 404

Mass. 44, 48 (1989). Here, the jury were asked only to

determine the cause, nature, and extent of the plaintiff's

injuries and to assign to those attributable to the negligence

unpaid leave for May, 2009, prior to the collision. The Delta

representative could not explain other records indicating that

the plaintiff was working during the first week of May, 2009.

Moreover, putting aside whether there was any evidence that the

plaintiff intended to work until age sixty-five, there was

evidence that she could have worked in other capacities at Delta

in the Boston area such as an outside sales representative, but

that she arbitrarily decided she was unsuited for such work.

Also, there was evidence that the plaintiff worked part-time as

a hostess and that during 2011 she earned $15,000.

30

of the defendants a dollar value that would represent fair

compensation to the plaintiff. We think that plaintiff's trial

counsel's numerous inflammatory remarks and efforts to inject

facts beyond the record into the trial, especially unfounded

statements about the plaintiff's risk of future harm and the

defendant MBTA's indifference to rider safety, could have

influenced the jury's decision-making process, and thus deprived

the defendants of a fair trial. The sheer number of counsel's

acts of misconduct cannot be minimized or overlooked. See

Williams v. Drake, 146 F.3d 44, 49 (1st Cir. 1998)

("[I]ndividual miscues, while insufficient in themselves to

warrant a new trial, [may] have an aggregate effect that impugns

the fairness of the proceedings and thus undermines the

trustworthiness of the verdict"). See also Leone v. Doran, 363

Mass. 1, 6, S.C., 363 Mass. 886 (1973). Although the judge

sustained numerous objections, told the jury that argument by

the lawyers was not evidence, and gave jurors cautionary

instructions about some of counsel's improper statements, the

rubric that jurors are presumed to follow the judge's

instructions does not mean that a curative or cautionary

instruction always suffices to remove the stain of what

otherwise would be prejudicial error. See Allen v. Boston Elev.

Ry., 212 Mass. 191, 194 (1912).

31

Conclusion. It is instructive to consider the observation

made by the United States Court of Appeals for the First Circuit

in Polansky v. CNA Ins. Co., 852 F.2d 626, 632 (1st Cir. 1988):

"[W]e do not view favorably any attempt 'to play fast and

loose' with our judicial system. Too often a lawyer loses

sight of his primary responsibility as an officer of the

court. While he must provide 'zealous advocacy' for his

client's cause, we encourage this only as a means of

achieving the court's ultimate goal, which is finding the

truth. Deceptions, misrepresentations, or falsities can

only frustrate that goal and will not be tolerated within

our judicial system." (Citations and footnote omitted.)

Ultimately, we conclude that the judge's efforts to address the

numerous and repeated violations of the law by plaintiff's trial

counsel fell short. We cannot say "with substantial confidence"

that the errors committed by plaintiff's counsel did not make a

material difference in the outcome. DeJesus v. Yogel, 404 Mass.

at 49. Accordingly, we vacate the judgment and remand the case

for a new trial. 22

So ordered.

22

The plaintiff argues on appeal that she is entitled to

the costs of the action below. We need not reach this issue, in

part because the plaintiff did not appeal from the judgment,

which omitted costs. At any rate, the plaintiff is not entitled

to costs because she filed her action after November 1, 2009,

when the MBTA became a public employer and therefore immune from

the award of interest and costs accruing on or after that date.

Smith v. Massachusetts Bay Transp. Authy., 462 Mass. 370, 371,

380 (2012).

GRAHAM, J. (dissenting). At trial, the sole issue for the

jury was the amount of the plaintiff's damages. The evidence

presented by the plaintiff was as follows. Dr. Francis Rockett,

a neurosurgeon employed at the Newton-Wellesley Hospital,

testified that the accident caused the plaintiff to suffer the

herniation of the disc between her fourth and fifth cervical

vertebrae. The pressure of the disc against ligaments in her

spine and a left-sided nerve root caused her to have pain in the

affected areas when she engaged in various activities and

prevented her from lifting heavy objects, performing yard work,

or carrying large items. Dr. Rockett opined that, as a result

of the accident, the plaintiff was disabled permanently from her

job as a Delta Airlines customer gate agent.

The plaintiff, a forty-six year old woman employed by Delta

Airlines for twenty-three years at the time of the accident, had

an annual salary at the time of the accident of approximately

$40,000 per year, with annual raises of approximately four per

cent available in each of the three years after the accident. 1

In addition, the plaintiff received free travel benefits for

herself and her family, paid vacation time, and ten paid

holidays per year, together with medical insurance, life

1

Pursuant to Delta Airlines policy, if a gate attendant was

not needed at the end of a shift, the attendant could leave work

early and forfeit pay for the hours of work missed. Before the

train crash in 2009, the plaintiff at times took advantage of

that policy, reducing her income somewhat as a result.

2

insurance, and pension benefits. The medical benefits alone

were worth more than $12,000 per year.

Both the plaintiff and her husband testified regarding the

physical and emotional effects of the accident on the plaintiff.

Each testified that the accident impaired the plaintiff's

ability to participate in her previous activities and diminished

her quality of life.

The defense relied on cross-examination of the plaintiff's

witnesses, seeking to impeach their credibility. In addition,

the defense presented testimony, via videotape, from Dr. Joseph

D'Alton, a doctor who had neither examined nor treated the

plaintiff. The trial was short and presented a classic case of

credibility for the jury to determine.

While acknowledging the improprieties in the conduct of

plaintiff's counsel, the judge, in light of her curative

instructions, was "not persuaded that the jury's verdict

reflects anything other than its permissible judgment of the

credible evidence." In rejecting the defendant's motion for new

trial or remittitur, the judge determined that the jury could

fairly have assessed the plaintiff's economic losses "in the

range of one million dollars" and, in addition, "could properly

have awarded a substantial additional amount for physical and

emotional pain and suffering."

3

In my view, the motion judge, who was also the trial judge,

did not abuse her considerable discretion in denying the motion.

I would defer to her view. See Gath v. M/A-Com, Inc., 440 Mass.

482, 495 (2003) ("The judge was in the best position to evaluate

the effect on the jury of the improper argument").

The majority of the court, hesitant (and properly so) to

say outright that the judge abused her discretion, instead turns

to the prejudicial error standard as its basis for overturning

the judgment on the direct appeal. That analysis is flawed for

several reasons. At the threshold, the defendants did not

preserve for appeal their arguments about uncured prejudice from

plaintiff's counsel's antics. Their contemporaneous objections

alone were not enough: once the defendants' objections were

sustained, they did not ask for specific curative instructions,

and when the judge gave her own curative instructions, the

defendants did not object or request any additional instructions

or actions. Tellingly, at no time did defense counsel move for

a mistrial. Finally, defense counsel did not object after the

final jury charge was given, instead pronouncing himself

satisfied. The issue of the sufficiency of the judge's

instructions (or claimed insufficiency) has been waived. See

Boston Edison Co. v. Massachusetts Water Resources Authy., 459

Mass. 724, 740 (2011), citing Mass.R.Civ.P. 51(b), 365 Mass. 816

(1974) (failure to object to the giving or omission of

4

instructions at trial waives right to claim error on appeal). 2 I

am concerned that the court, by relying on waived issues to

upend a trial judge's discretionary determination in a civil

case, has strayed too close to the restraining line between

error correction and substitution of judgment.

Waiver of the issues aside, I am also persuaded that the

majority has overestimated the prejudice caused by plaintiff's

counsel's actions, inexcusable though they were. A number of

factors suggest an insignificant risk that the jury were

inflamed or distracted. (1) The trial was clearly focused

solely on the issue of damages -- the stipulation to liability

was emphasized to the jury throughout the trial. (2) The vast

majority of the evidence went in without objection or

controversy, whereas the inadmissible evidence was only a small

part and passed quickly. (3) Although there were opposing

2

Similarly waived is any argument relying on the

sufficiency of the evidence of damages. The defendants neither

moved for a directed verdict nor for judgment notwithstanding

the verdict (judgment n.o.v.). See Hatton v. Meade, 23 Mass.

App. Ct. 356, 361 (1987) ("[W]here a losing party has not moved

for a directed verdict at the close of all the evidence,

[Mass.R.Civ.P. 50(b), 365 Mass. 814 (1974),] not only precludes

[a] the granting to that party of a motion for judgment n.o.v.,

but also [b] appellate review of the sufficiency of the evidence

to support the verdict"). The argument that there was

insufficient evidence to support an award of lost earning

capacity is therefore waived -- the judge told the parties that

she would allow the jury to use their own common sense about how

long the plaintiff would continue to work, and the defendants

did not object. Nor did they object when she told them that she

would allow the jury to discount to present value in the absence

of expert testimony on how to perform such a calculation.

5

experts, the plaintiff's expert testified live and the

defendants' did not. Testimony presented by video recording or

transcript is often less effective than live testimony.

Moreover, the plaintiff's expert had personally examined the

plaintiff, while the defendants' expert had not. (4) The

husband's testimony was extremely affecting -- it painted a

moving picture of a woman whose life activities have been

seriously curtailed by the train crash. A significant portion

of the undifferentiated damages award may have related to this

suffering. (5) The defendants' tactical decision to call the

plaintiff's Delta Airlines supervisor to the stand clearly

backfired. His testimony favored the plaintiff, including

vouching for her value as a long-time employee. (6) The trial

judge allowed the jurors to ask questions after each witness's

testimony and those questions reveal a focus only on pertinent

issues. (7) The jury did not rush to a verdict. They

deliberated for one hour after the closings and returned to

deliberate for almost a full additional day. Considering that

the trial was short, this was a long deliberation -- which

undercuts the notion that the jury were inflamed by plaintiff's

counsel. (8) Finally, I am inclined to believe that the

judge's interventions with the jury had more curative value than

the majority is willing to recognize.

I respectfully dissent.