# Corsetti v. Stone Co. > Massachusetts Supreme Judicial Court · September 19, 1985 · 396 Mass. 1 URL: https://www.frixlaw.com/law-library/cases/9526550 ## Case - **Full name:** Domenic Corsetti & Another vs. the Stone Company & Another - **Court:** Massachusetts Supreme Judicial Court - **Decided:** September 19, 1985 - **Citations:** 396 Mass. 1; 483 N.E.2d 793 - **Precedential status:** Published - **Opinion:** Dissent by Abrams - **Judges:** Hennessey, Wilkins, Liacos, Abrams, Nolan, Lynch, O'Connor - **Cited by:** 132 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9526550 ## How later opinions describe it (automated extraction) - holding that evidence of collateral source income may be admissible, in the discretion of the trial judge, as probative of a relevant proposition or credibility of a particular witness - holding a general contractor liable for injuries of the subcontractor’s employee because it had retained the necessary control to initiate, maintain, and supervise all safety precautions related to the project ## Opinion text Abrams, J. (dissenting). I dissent from that portion of the court’s opinion which concludes that the exclusion of collateral source evidence was error necessitating a new trial on the issue of damages. I find it incredible that the court is substituting its judgment for that of a highly experienced trial judge with respect to a discretionary matter concerning the exclusion of evidence. We have not done so in the past. See Rocco v. Boston-Leader, Inc., 340 Mass. 195, 197 (1960); Griffin v. General Motors Corp., 380 Mass. 362, 365-366 (1980). Moreover, it is highly irregular for an appellate court to disturb *31 the proper exercise of the judge’s discretion on a theory not offered to the judge and on a record which does not clearly disclose error. Collateral source evidence has been deemed irrelevant because “the receipts from the outside source do not go to reduce the defendant’s liability; yet jurors might be led by the irrelevancy to consider plaintiffs’ claims unimportant or trivial or to refuse plaintiffs’ verdicts or reduce them, believing that otherwise there would be unjust double recovery.” Goldstein v. Gontarz, 364 Mass. 800, 809 (1974). Exceptions to any general rule should be cautiously considered, lest the exceptions swallow the rule. That is what the court’s opinion today may do with respect to the collateral-source rule. The defendants sought to pierce the collateral-source rule not for the limited purpose of impeaching the plaintiffs’ credibility. They specifically wished to influence the jury’s opinion as to damages. 1 The judge exercised his discretion against the admission of the evidence, reasonably fearing that such evidence “becomes too confusing.” We ought to respect that assessment. In the appropriate circumstances, I too would endorse a narrowly-tailored exception to the collateral-source rule, 2 but *32 the circumstances of this action do not cry out for the creation of such an exception. First, there was ample evidence here of malingering, without collateral source benefits evidence.* * 3 The defendants, thus, could hardly maintain that, were the judge to enforce the collateral-source rule, they would be left without a basis on which to challenge the plaintiffs’ credibility. Second, nothing in the plaintiffs’ case opened the door to the defendants’ introduction of collateral source benefits evidence. Although the plaintiff here testified on direct examination that his wife increased her work schedule from part time to full time after his accident, the context of that testimony suggests not that Mrs. Corsetti did so because of financial need, but rather in order that she might get out of the house to escape her husband’s irritability. Further, while the plaintiff testified on direct that he and his wife fought about money, that he liked to “earn money, support the family,” and was “aggravated” because his wife worked, that testimony alone, in my view, would be unlikely to mislead a jury into believing that the plaintiff was poverty-stricken or unable to meet household expenses as a result of his injuries. *33 The excerpts selected by the court from the plaintiff’s testimony are susceptible to more than one interpretation. The court stresses that Corsetti averred that his wife worked full time after his accident and that the couple fought about money. But that testimony must be understood in light of the general line of questioning in which it arose. The point in the exchange, set forth in the margin, 4 seems to me to be that the plaintiffs fought not because they were suddenly poor, but because Cor-setti, disabled and inactive, was no longer participating in the household shopping and was now bickering with his wife over her expenditures. The court next finds fault with Mrs. Corsetti’s characterization of the Christmas of 1978 as “bleak.” But recall that Cor-setti’s injuries occurred on September 26, 1978, only three months before Christmas. I see no indication in the record that Corsetti received expedited funds, either workmen’s compensation or Social Security disability benefits. Very likely, the Corsettis’ Christmas that year was bleak — “financially and otherwise.” Last, the court lays emphasis on Corsetti’s statement that he used “to love to go to work” because he liked to “earn *34 money, support the family.” He added, “Now because my wife is working I get aggravated.” But again, this testimony, read in context, is innocuous. 5 Here, it seems to me, the plaintiffs’ counsel was focusing on Corsetti’s loss of self-esteem, rather than merely loss of income. Corsetti’s comments convey not that he was wanting for money, but only that he was not earning any. Moreover, he was frustrated not because his wife was compelled to work, but that she was the only one able to work. It is clear, in any event, that the judge did not perceive any of these statements by the plaintiffs as deceptive. When considering whether to permit the defendants to introduce collateral source benefits evidence, the only basis he saw was “that it would go to the credibility of the claim that [the plaintiff] cannot work” (emphasis added). Had the plaintiff offered a blatantly distorted version of his circumstances, we would be justified in tampering with a time-honored financial prescript. I am hard put to read such a distortion into the facts before us. It was only on cross-examination by counsel for the defendant The Stone Company that the plaintiff’s assertions could be seen as misleading. When asked by defense *35 counsel whether he had attended a movie since his accident, Corsetti replied, “No. I can’t afford to go to movies.” 6 This was clearly not an instance in which the plaintiff made it part of his case-in-chief to show financial need. To permit the defendants to bootstrap an exception to the collateral-source rule onto their own solicitation of statements from Corsetti regarding his financial straits would pervert the rationale for an exception to the rule. That rationale is simply that the collateral-source rule inures to the benefit of the plaintiff; but should the plaintiff attempt to take advantage of that rule by affirmatively pleading poverty, he should be forced to confront the consequences of that choice on cross-examination. Nor, finally, did Corsetti attempt to take advantage of the rule by inflating his earning capacity to include amounts referable to collateral source benefits. The plaintiffs’ expert based his projections on Corsetti’s income for 1978, a figure of some $9,000. In any event, if it were doubtful in the first instance whether the plaintiffs’ case affirmatively introduced a misleading economic element, resolution of that question was best committed to the discretion of the trial judge. See Pemberton v. Boas, 13 Mass. App. Ct. 1015, 1018 (1982). In view of the availability of ample evidence as to the plaintiff’s malingering, see note 3, supra, the defendants have no valid claim that the judge’s ruling was prejudicial to their case. Perhaps most significant is the fact that the court has not formulated its exception to the collateral-source rule with the degree of limpidity sufficient to afford guidance to the trial *36 court. It is puzzling to me exactly when the defendant Stone Company is now “entitled as a matter of right” to the admission of collateral source evidence. Ante at 18.1 expect that the trial judges will face the same conundrum. Because, at the very least, the record is ambiguous, I would accord substantial deference to the trial judge. What in fact the court is doing is exercising its discretion to determine an evidentiary question committed to the discretion of the trial judge. 7 The court’s action is inappropriate. The fact that an appellate court would exercise its discretion differently does not justify ordering a new trial. I therefore would affirm the judgment. As one defense counsel argued below: “What more cogent evidence would this jury like to hear, that the fellow is doing a hell — he’s doing a great deal better now by staying out of work than he was doing when he was working, because he’s got Social Security . . . .” Several courts have recognized only a highly circumscribed exception to the collateral-source rule in permitting the introduction of collateral source benefits evidence where a plaintiff in a personal injury action has volunteered testimony as to penurious circumstances allegedly resulting from his injuries. See, e.g., Gladden v. P. Henderson & Co., 385 F.2d 480 (3d Cir. 1967), cert, denied, 390 U.S. 1013 (1968) (plaintiff testified he returned to work because he had fallen behind in the payment of his bills); Lange v. Missouri Pac. R.R., 703 F.2d 322 (8th Cir. 1983) (plaintiff asserted he had to return to work immediately after surgery because he had no disability income); York v. Young, 271 Ark. 266 (1980) (plaintiff testified he could not afford to have his truck repaired); Jackson v. Beard, 146 Ind. App. 382 (1970) (plaintiff’s attorney questioned plaintiff as to lessened income after automobile collision); Jojola v. Baldridge Lumber Co., 96 N.M. 761 (Ct. App. 1981) (plaintiff testified he had no money, food, or lights); Hack *32 v. State Farm Mut. Auto. Ins. Co., 37 Wis. 2d 1, 10 (1967) (plaintiff testified he went back to work because he needed money to support family). See generally Annot., 47 A.L.R.3d 234 , 250 (1973 & Supp. 1984). The rationale in these cases is that “[t]he [plaintiff] having opened the gate on the matter of reduced income as a result of the [injury] complained of, the [defendant] has the right to drive through arid to cross examine on the issues, raised by [plaintiff].” Jackson v. Beard, supra at 398 . Collateral source benefits “become relevant when the plaintiff’s direct testimony misleads the jury on some issue in the case and cross-examination of the plaintiff on evidence of collateral source payments is necessary to rebut the testimony.” Lange v. Missouri Pac. R.R., supra at 324. To forbid “cross-examination would [confer] on plaintiff the unparalleled right to give testimony on direct examination with immunity from inquiry on cross-examination.” Gladden v. P. Henderson & Co., supra at 483. As the court indicates, “Dr. Thrasher, Corsetti’s treating physician at the time of the accident, testified that when he last saw Corsetti in November, 1981, the physical findings did not support Corsetti’s most recent complaints, and that he felt that those complaints might be related to Corsetti’s desire to make a better case. Corsetti testified that his injuries had substantially improved by the time of the trial.” Ante at 18. Plaintiffs’ counsel: “Do you ever go to the store shopping with your wife, or do any shopping for your wife?” Corsetti: “I go with my wife sometimes.” Plaintiffs’ counsel: “How do you help her when you go to the store now?” Corsetti: “Just walk beside her.” Plaintiffs’ counsel: “She does all the shopping for the house?” Corsetti: “Right.” Plaintiffs’ counsel: “She has to check out the prices and stuff like that, right?” Corsetti: “Right.” Plaintiffs’ counsel: “Did you ever go shopping with your wife before and help her check the stuff?” Corsetti: “Yeah. I used to before.” Plaintiffs’ counsel: “Who does the clothing shopping now?” Corsetti: “My wife.” Plaintiffs’ counsel: “Do you end up fighting about money?” Corsetti: “Yeah.” Plaintiffs’ counsel: “How has this incident, injury you have suffered from changed your own opinion about yourself?” Corsetti: “A lot. I don’t feel like the same, like I used to feel before. ” Plaintiffs’ counsel: “Why not?” Corsetti: “I feel a different person.” Plaintiffs’ counsel: “Has it affected you at all that you have been working since you were 16 and are no longer working?” Corsetti: “Yes.” Plaintiffs’ counsel: “Does it bother you now?” Corsetti: “Yes. Drives me crazy.” Plaintiffs’ counsel: “Why?” Corsetti: “Because I used to go to work. I used to love to go to work.” Plaintiffs’ counsel: “Why?” Corsetti: “Because I like to, you know, earn money, support the family. Now because my wife is working I get aggravated.” Plaintiffs’ counsel: “How do you feel about yourself since this accident? You are unable to work and your position?” Corsetti: “I can’t feel — I can’t work any more. I don’t feel like I can work any more.” Once again, the court strains to see this response as misleading, and here, too, I disagree. The plaintiff was not claiming that because of his instant financial status he was no longer able to afford the movies; he meant that he had never been able to afford to go to the movies: Defense counsel: “Never go to the beach in the summer?” Corsetti: “No. I don’t like beach.” Defense counsel: “Have you ever been to the movies?” Corsetti: “No.” Defense counsel: “Never been to the movies?” Corsetti: “No. I can’t afford to go to movies.” As I read the court’s opinion, if the plaintiff on retrial simply omits those comments considered provocative by the court, the judge has discretion still to exclude the collateral source evidence at the second trial. Because the evidence of malingering was thoroughly developed at the first trial, the insistence on a second trial wherein a jury may consider substantially the same evidence seems pointless. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9526550. Public record. Not legal advice.