Opinion
11-P-110
01-27-2012
CAROLYN LITTLEFIELD & another v. CARISSA RAND.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs, Carolyn Littlefield (Littlefield) and her minor daughter Veronica, appeal from a judgment for the defendant, Carissa Rand, entered on a jury verdict after an eight-day trial in September, 2009. On appeal, the plaintiffs raise several issues concerning the conduct of the trial and argue that the verdict was against the weight of the evidence.
Littlefield came to the offices of South Carver Medical Associates (SCMA) on November 22, 2003, complaining of sinusitis. She was seen by Rand, a physician assistant who had been working there since July of 2003. At the time of the visit Littlefield was approximately twenty-four weeks pregnant, but did not know it. The plaintiffs allege that Rand deviated from the standard of care when she 'failed to note Ms. Littlefield's contraception, Depo-Provera, [ ] failed to note that the Depo-Provera may have been ineffective, failed to note that Ms. Littlefield may have missed an injection administration of Depo-Provera, and otherwise failed to diagnose Ms. Littlefield's pregnancy.' After the child was born with certain disabilities, Littlefield filed this medical malpractice action against Rand and others. At the time of trial, all that remained was a claim for wrongful birth against Rand. Littlefield claimed that if she had known about her pregnancy on November 22, 2003, she would have obtained an abortion.
At trial, Dr. Terrance Baker testified that 'Depo-Provera is a medication that in 1992 was authorized by the FDA, Federal Drug Administration, for use as a contraceptive; and it is ministered as an injection into a muscle . . . and will last for approximately three months.'
The amended complaint named the following as defendants: Perry Hearn, individually; Perry Hearn, P.C., doing business as South Carver Medical Associates; Leah Simas; Brian Bonenfant; and Rand.
No argument is made by any party concerning the viability of such a claim in Massachusetts. As such, we do not consider this issue on appeal. Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
The plaintiffs had settled their claims against all of the other defendants.
Discussion. 1. 'Business habit' evidence. The plaintiffs argue that Rand, who had no memory of the specific visit with Littlefield, was permitted to testify as to Rand's custom or habit during an office visit without the proper foundation being laid for the admission of business habit evidence. 'Evidence of the routine practice of a business or one acting in a business capacity, established through sufficient proof, is admissible to prove that the business acted in conformity with the routine practice on a particular occasion.' Mass. G. Evid. § 406 (2011). On appeal, we review the admission of business habit evidence for abuse of discretion. See Palinkas v. Bennett, 416 Mass. 273, 274 (1993).
Here, Rand testified that it was her customary practice (1) to make sure that someone was not pregnant before prescribing medication, and (2) to ask female patients if there was any chance that they could be pregnant and to follow-up with a question about their use of contraceptives if they answered no. In order to be admissible testimony, the proponent must establish that these routines constituted a habit and that the habit was a business habit, not a personal one. Id. at 276-277. With regard to Rand's actions before prescribing medicine, Rand testified that: she learned these practices while studying to be a physician assistant, continued these practices during her clinical rotation, and then used the same practices when she went to work at SCMA, where she saw approximately one hundred patients per week. With regard to Rand's customary questions to female patients, Rand testified that she had a customary practice as to what information she would obtain from patients who appear for a sick visit and that this had been her practice for three to four years, dating back to physician assistant school. Thus, the judge did not abuse his discretion in determining that these routines constituted a habit, nor did he abuse his discretion when he determined that these habits are business habits. See id. at 277; O'Connor v. SmithKline Bio-Science Labs., Inc., 36 Mass. App. Ct. 360, 365 (1994).
This time period could have encompassed the time Rand practiced at SCMA before she met with Littlefield and Rand's two years of classes and one year of clinical rotation.
The plaintiffs argue that Rand cannot present business habit evidence because she had been working at SCMA for only a few months. The plaintiffs, however, do not cite to any cases to support this proposition. Moreover, the plaintiffs disregard the fact that, while Rand had only been a licensed practitioner for a short time, she had developed these business habits over the course of three to four years during her master's program and clinical education. Ultimately, the length of time and manner in which Rand developed her business practice goes to the weight of the evidence and is an issue for the jury, who were so instructed. See id. at 365-366.
The judge instructed that: 'In assessing whether Ms. Rand followed a routine custom or practice you may consider the manner in which such a custom or practice was learned or developed and the length of time the defendant had been engaged in that practice or in the practice of primary or family care medicine as a physician's assistant.'
2. Denial of motion for new trial. All of the remaining issues were raised in the plaintiffs' motion for a new trial. The motion judge, who had presided at trial, denied the motion after a hearing. 'We grant considerable deference to a judge's disposition of a motion for a new trial, especially where he was the trial judge, and we will reverse the ruling only for an abuse of discretion.' Gath v. M/A-Com, Inc., 440 Mass. 482, 492 (2003).
A. Misconduct. The plaintiffs argue that Rand's attorney committed deliberate misconduct. We consider each of these allegations of misconduct in turn. For the reasons set forth below, the judge did not abuse his discretion by failing to grant the plaintiffs a new trial based on either individual or cumulative acts of alleged misconduct.
Jury empanelment. During the jury empanelment process defense counsel stated in open court, 'Your Honor, I mentioned that Ms. Rand does need to leave the court today for personal reasons, for health, child health.' The plaintiffs' counsel moved for a mistrial claiming that the comment was irrelevant, prejudicial, and intended to elicit sympathy for Rand. The judge denied the request for a mistrial stating, 'I don't think this jury is prejudiced by it.' Assuming, arguendo, that defense counsel's statement was improper, the trial judge is in the best position to determine the harmful effect of any such comment. See Torre v. Harris-Seybold Co., 9 Mass. App. Ct. 660, 664 (1980). 'The determination of potential juror prejudice is a matter within the sound discretion of the trial judge.' Commonwealth v. Rosario, 460 Mass. 181, 194 (2011), quoting from Commonwealth v. Federici, 427 Mass. 740, 747 (1998). The judge did not abuse his discretion by denying the defendant's request for a mistrial.
The plaintiffs also argue in a footnote that the appearance of Rand's husband in court at the end of the trial may have biased the jury. Specifically, the plaintiffs argue that one juror, who knew Mr. Rand because the juror had purchased pool supplies at Mr. Rand's business, might be biased in favor of the defendant. The juror was questioned by the trial judge and reaffirmed her ability to be impartial. The plaintiffs' counsel declared that he was 'satisfied' by this inquiry. The motion judge did not abuse his discretion by refusing to grant a new trial on this ground.
A judge should conduct a voir dire of jurors where 'the jury may have been exposed during the course of trial to material that goes beyond the record and raises a serious question of possible prejudice.' Commonwealth v. Francis, 432 Mass. 353, 369 (2000) (citation omitted). As the trial judge could have found that the comment did not raise a serious question of possible prejudice,' he did not abuse his discretion by not conducting a voir dire here. See id. at 370.
Trial. The plaintiffs objected to two references to Littlefield's boyfriend at trial. First, Littlefield was asked on cross-examination, 'And, as of November of 2003, you were sexually active with a new partner?' The plaintiffs' counsel objected, and the objection was sustained. Second, a witness for the defendant stated, '[Littlefield] had a new boyfriend who obviously had a lot of, you know, visit -- chance to see her. He didn't recognize [that Littlefield was pregnant].' The trial judge granted the plaintiffs' motion to strike. Despite the fact that the first objection was sustained and the second comment was stricken, the plaintiffs argue that the prejudice could not be removed from the minds of the jurors. We disagree. 'Jurors are presumed to follow a judge's instructions, including instructions to disregard certain testimony.' Commonwealth v. Caldwell, 459 Mass. 271, 278 (2011) (citation omitted). The trial judge acted appropriately to prevent any prejudice by the jury.
Closing. The plaintiffs argue that defense counsel improperly communicated her personal opinion of the expert economist's testimony and the defendant's credibility in her closing argument. In both instances, the plaintiffs made timely objections, and the court provided curative instructions. , Since the trial judge took 'rigorous and emphatic action to counteract prejudicial statements made in front of the jury,' Rolanti v. Boston Edison Corp., 33 Mass. App. Ct. 516, 529 (1992) (citation omitted), no new trial is required. See ibid. (new trial generally not required due to 'overreaching' closing argument unless there was an 'overt appeal to the jury's partiality and prejudice').
'I've got to tell you I'm not a numbers person but I took a look at this chart . . . Okay, I don't know, I'm not an economist. But then I looked at the other number. . . . Hmm, that seemed a little odd. A bigger number for lesser -- much lesser number of years. . . . Now, I'm not a numbers person but that just doesn't make sense to me. It doesn't add up.'
'Mr. Halstrom [Littlefield's counsel], the plaintiffs seem to place great weight on the fact that Ms. Rand could not remember her specific visit with Ms. Littlefield. Now, Ms. Rand could have come here and told you sure she remembered the visit this is what she asked. But she didn't, she was honest with you. She's been honest all along. She said she couldn't remember and of course she didn't remember it was a routine . . . .'
In response to defense counsel's use of the first person, the judge later instructed the jury:
'During the course of arguments, there was some reference to a first person pronoun, counsel's name I think or I believe or what ever. Understand those were figures of speech. It is not an expression of any personal opinion by counsel because counsel's personal opinion is irrelevant. Ultimately, it is your assessment of the evidence . . . that will determine the facts of this case.'
In response to comments about Rand's honesty, the judge immediately instructed the jury in the middle of the closing argument: 'Alright, ladies and gentlemen, you'll assess the testimony as you've heard it and limit it to what you've heard.'
Misrepresentation. The plaintiffs argue that defense counsel misrepresented to the court that the plaintiffs 'resurrected' the theory of wrongful birth on the eve of trial, requiring late admission of evidence for the defendant. The plaintiffs cite to no cases where a new trial was granted after similar actions by counsel. Moreover, the plaintiffs do not provide any evidence that such statements prejudiced the jury, who were not present when defense counsel made these comments. The judge did not abuse his discretion by refusing to grant the plaintiffs' request for a new trial on this ground.
Torre v. Harris-Seybold Co., 9 Mass. App. Ct. 660 (1980), cited by the plaintiffs, is not on point.
B. Expert testimony. The plaintiffs claim that the judge erred by (1) allowing the defense expert, Dr. Culpepper, to testify without complying with proper pretrial disclosure and (2) allowing Dr. Culpepper to testify pursuant to an affidavit filed on the first day of trial regarding the availability of an abortion. '[A] trial judge has broad discretion in deciding whether to permit expert testimony when the proponent has not given proper notice of the identity of the expert or the subject matter of the expert's anticipated testimony, either in his answers to interrogatories or in his supplementary responses.' Elias v. Suran, 35 Mass. App. Ct. 7, 10 (1993).
The plaintiffs also argue in a footnote that the judge erred by not allowing them to cross-examine Dr. Culpepper and Rand with Dr. Miller's expected testimony about the date that Littlefield conceived. The date of conception was relevant to Rand's argument that at the time of the office visit Littlefield's pregnancy was already too advanced to have a lawful abortion. Since the jury found that Rand was not negligent, they never reached the question whether Rand's negligence deprived Littlefield of her ability to have an abortion. Thus the claimed error did not constitute grounds for a new trial.
'The extreme sanction of a new trial requires both surprise and unfair prejudicial harm.' Hammell v. Shooshanian Engr. Assoc., 73 Mass. App. Ct. 634, 638 (2009). With regard to the first issue, there was no surprise as the defendant, in accordance with the procedure prescribed by the court, filed a supplement to the joint pretrial memorandum more than eight months before trial that disclosed Dr. Culpepper's identity and expected testimony. With regard to the second issue, there was no unfair prejudice because: Rand notified the plaintiffs in a letter dated August 17, 2009, that Rand intended to offer rebuttal testimony on the availability of an abortion if her motion to exclude the supplemental opinion of the plaintiffs' expert failed; the trial judge allowed the plaintiffs to depose Dr. Culpepper prior to his testimony; and the plaintiffs' expert was also allowed to testify about the availability of an abortion. Thus, the trial judge did not abuse his discretion by allowing Dr. Culpepper to testify.
C. Failure to redact records. The plaintiffs argue that the judge improperly denied their motion in limine to redact from medical records information concerning Littlefield's alcohol use. Assuming, arguendo, that the judge erred by failing to redact this information, the error did not prejudice the jury because Littlefield's alcohol consumption was only relevant on the issue of damages. Since the jury found that Rand was not negligent, they never reached the question of damages.
D. Improper jury conduct. During deliberations, the jury submitted the following question: 'Is the defendant solely Carissa Rand or Carissa Rand as an agent of South Carver Medical Associates?' The judge, after obtaining the agreement of counsel, instructed the jury that the laws of agency were irrelevant. The plaintiffs claim that the jury returned less than five minutes later with a defense verdict. The plaintiffs argue that it was clear the jury improperly considered whether Rand was sued as an agent, ultimately reaching a compromise verdict.
The trial judge instructed the jury that: 'The answer to the question is[:] the Defendant in this matter is Carissa Rand and so your focus should be on Ms. Rand. The question is insightful but irrelevant, that is, you should not be any way concern yourself with any principles of agency or anything of that sort rather look at the conduct of Ms. Rand in her professional capacity and then in relationship to her interaction with Carolynn Littlefield. Whether she was acting individually or as an agent really is not an issue properly put before you and your focus again in this trial should be entirely on Ms. Rand and Ms. Rand's conduct.'
The trial judge appropriately instructed the jury in response to their question. As noted above, '[j]urors are presumed to follow a judge's instructions.' Commonwealth v. Caldwell, 459 Mass. at 278. The alleged brevity of deliberation between the judge answering the jury's question and the jury returning the verdict does not amount to evidence that 'certain jurors must have conceded their conscientious belief that the [plaintiffs] ought to prevail to the end that agreement might be reached.' Simmons v. Fish, 210 Mass. 563, 570 (1912) (finding compromise verdict where the jury found liability but awarded minimal damages).
E. Weight of the evidence. Finally, the plaintiffs argue that the verdict was wholly against the weight of the evidence. The plaintiffs' argument, however, relies on disregarding the testimony of Dr. Culpepper and a determination that Rand's business habit testimony was improperly admitted. As discussed above, Rand's business habit testimony was properly admitted. Furthermore, '[t]he weight and credibility of the evidence is the province of the jury.' Commonwealth v. Gomez, 450 Mass. 704, 711 (2008).
To the extent that we do not address the plaintiffs' other contentions, 'they 'have not been overlooked. We find nothing in them that requires discussion." Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
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Judgment affirmed.
Order denying motion for new trial affirmed.
By the Court (Mills, Katzmann & Milkey, JJ.),