Opinion
20-P-200
06-18-2021
Erin E. WYNNE v. BAYSTATE MARY LANE HOSPITAL & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Erin E. Wynne appeals from a judgment, after a jury trial, in favor of the defendant Dr. Raul Octaviani, and from an order denying her motion for new trial. Octaviani was a hospitalist who discharged Ronald M. Baglio (Wynne's husband) from Baystate Mary Lane Hospital two weeks before Baglio died from a heart attack. The core allegation against Octaviani was that, in the circumstances, he should not have discharged Baglio without ordering a nuclear stress test. On appeal, Wynne makes three arguments. First, she argues that the judge abused his discretion with respect to the scope of cross-examination of Wynne's expert, Dr. Bruce Decter. Second, she argues that defense counsel misrepresented the evidence in closing argument. Third, Wynne argues that the verdict was against the weight of the evidence. We affirm.
Before trial, Wynne reached a settlement with the other defendants, and the claims against those defendants were dismissed.
As a threshold matter, on our own initiative we have considered the jurisdictional question whether the notice of appeal was untimely. See Creatini v. McHugh, 99 Mass. App. Ct. 126, 127 (2021) ; DeLucia v. Kfoury, 93 Mass. App. Ct. 166, 170 (2018) ("A timely notice of appeal is a jurisdictional prerequisite to our authority to consider any matter on appeal"). Judgment entered on December 20, 2018. As a result, unless otherwise tolled, Wynne was required to file a notice of appeal within thirty days of that date. See Mass. R. A. P. 4 (a) (1), as appearing in 481 Mass. 1606 (2019). One way of tolling the thirty-day period is to file a timely motion for new trial pursuant to Mass. R. Civ. P. 59, 365 Mass. 827 (1974) ( rule 59 ), which "shall be served not later than 10 days after the entry of judgment." See Mass. R. A. P. 4 (a) (2) (C), as appearing in 481 Mass. 1606 (2019). Here, Wynne did not serve her rule 59 motion until January 16, 2019 -- approximately twenty-five days after judgment entered. Thus, Wynne's rule 59 motion did not toll the time for filing a notice of appeal, and her notice of appeal (which was not filed until December 19, 2019 -- almost a year after judgment entered) was untimely.
In response to our request at oral argument, the parties have jointly submitted an agreed-upon statement of the timeline for the filing and serving of Wynne's rule 59 motion and of her notice of appeal.
Wynne requested (and received) an agreement with defense counsel that her rule 59 motion could be served on January 16, 2019. This is not the same as filing a request for an extension with the court and receiving the court's assent.
Ordinarily, in such circumstances, we would dismiss the appeal. However, the defendant has not challenged the timeliness of the appeal, either here or below, the merits of the appeal are fully briefed, and it appears that both parties mistakenly assumed that their agreement to extend the time for serving the rule 59 motion would operate to toll the time for filing the notice of appeal. In addition, the defendant has claimed no prejudice from the late filing of the notice of appeal, which was made within thirty days of the denial of the rule 59 motion. In these circumstances, we exercise our discretion to reach the merits of the appeal. See Eyster v. Pechenik, 71 Mass. App. Ct. 773, 781 (2008).
1. Cross-examination of Wynne's expert. Wynne argues that the trial judge abused his discretion in allowing the defendant to cross-examine Wynne's expert witness concerning the settlement she reached with the codefendants. See Morea v. Cosco, Inc., 422 Mass. 601, 602 (1996). Even assuming the issue was properly preserved by Wynne's motion in limine, the rule in Morea is only that "unless admission of the evidence is relevant for some other purpose, no evidence of a settlement or the amount of the settlement shall be admissible." Id. at 603. "[T]he rule does not extend beyond the fact of the settlement itself." Zucco v. Kane, 439 Mass. 503, 509 (2003). Here, the defendant's cross-examination of Wynne's expert did not mention or touch upon the fact of settlement or the settlement amount. Morea did not constrain cross-examination into the expert's opinion that doctors other than Octaviani were at fault, simply because that opinion was rendered before the claims against those doctors were settled.
The defendant argues that Wynne waived her Morea objection by failing to object on those grounds. See Scheffler v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 84 Mass. App. Ct. 904, 905 (2013), quoting Palmer v. Murphy, 42 Mass. App. Ct. 334, 338 (1997) ("Objections, issues, or claims -- however meritorious -- that have not been raised at the trial level are deemed generally to have been waived on appeal"). Here, while Wynne did object to the line of questioning at trial, her grounds were that Dr. Decter's first two expert reports did not mention Dr. Octaviani because they were limited to the issue of causation. When the judge indicated that the "cat's got out of the bag" and that Wynne could clarify the issue on redirect, Wynne still did not raise Morea as the basis for her objection.
Wynne also argues that the judge abused his discretion in permitting cross-examination concerning matters outside the expert's expertise. Assuming the issue has been properly preserved, Wynne's argument that the trial court abandoned its gatekeeping function is misplaced. It was elicited at trial that the expert was "a licensed practicing physician in the field of cardiology," a "fellow of the American College of Cardiology," a "[f]ellow of the American College of Physicians," a "[f]ellow of the American Society of Nuclear Cardiology," board certified, had trained in and done a residency in internal medicine (which entailed "caring for patients in the hospital"), and that as a clinical professor he "helped to teach medical students how to become doctors."
Wynne objected to the line of examination because the expert was "just a causation witness" and "the right [of a hospitalist] to rely [on a cardiologist's report] is exactly an issue of standard of care." This is not exactly the argument she raises now. Where a party does not put the trial court on notice of the specific reason for her objection, she does not properly preserve the issue for appeal. See Mayer v. Cohen-Miles Ins. Agency, Inc., 48 Mass. App. Ct. 435, 444-445 (2000) ("although the plaintiff did object at trial, she did not explain the basis for her objection. Thus, she did not preserve the issue for appeal"). See also Mass. R. Civ. P. 46, 365 Mass. 811 (1974).
Although the "fact that [a] witness is qualified as an expert in one area does not qualify him to give expert opinion in [an]other area," Commonwealth v. Frangipane, 433 Mass. 527, 535 (2001), citing Timmons v. Massachusetts Bay Transp. Auth., 412 Mass. 646, 649-650 (1992), a "medical expert need not be a specialist in the area concerned nor be practicing in the same field as the defendant ... the professional specialty of a medical practitioner offered as a witness need not be precisely and narrowly related to the medical issues of the case. ... The crucial issue is whether the witness has sufficient education, training, experience and familiarity with the subject matter of the testimony" (quotations and citations omitted), Letch v. Daniels, 401 Mass. 65, 68 (1987). Here, the expert was trained in internal medicine (among other things), and he testified that a hospitalist (Octaviani's specialty) "is an internal medicine physician." Given the expert's education, training, and background, the judge was within his discretion in allowing the expert to opine on the interrelation between cardiologists and internists in a hospital setting, including but not limited to their respective standards of care and the extent to which one would rely on the other or defer to the other's expertise.
This characterization was confirmed by another expert witness, Dr. Peter Jenei.
Wynne also argues that, even if medical experts can in some circumstances testify to the standard of care of a specialist outside their practice area, it was an abuse of discretion for the judge to allow such questioning on cross-examination here because it was outside the scope of direct examination. However, a witness "may be cross-examined without regard to the scope of his testimony on direct." Mass. R. Civ. P. 43 (b), 365 Mass. 806 (1974). See Commonwealth v. Haggett, 79 Mass. App. Ct. 167, 175 (2011) ("the general rule of evidence in Massachusetts does not limit cross-examination of witnesses to matters raised on direct examination").
2. Closing. Wynne argues that a new trial is warranted because defense counsel made improper closing argument by (i) mischaracterizing the testimony of the expert in such a way as to mislead the jury and (ii) alluding to a sidebar discussion in such a way that the jury would infer that the sidebar bore on the expert's credibility. We are unpersuaded by both arguments. As to the first, it fails largely for the same reasons we have discussed above. Because there was no error with respect to the cross-examination of the expert, the defendant's counsel was permitted to summarize the evidence and argue from it in closing. See Mason v. General Motors Corp., 397 Mass. 183, 192 (1986) ("The scope of proper closing argument is limited to comments on facts in evidence that are relevant to the issues and the fair inferences which can be drawn from those relevant facts"). Moreover, we keep in mind that the judge instructed the jury that closing arguments were not evidence, that the jury were the arbiters of the facts, that the jury were the sole judge of a witness’ credibility, and that the jury could decide what to accept or not accept from an expert witness. "We presume that a jury understand and follow limiting instructions, and that the application of such instructions ordinarily renders any potentially prejudicial evidence harmless" (citations omitted). Commonwealth v. Donahue, 430 Mass. 710, 718 (2000).
With respect to counsel's reference to a sidebar conference, it was made only in passing while making a point about the expert having had the opportunity to review his disclosure report. Moreover, the judge sua sponte gave a curative instruction, which we presume that the jury followed. See Donahue, 430 Mass. at 718.
"I showed him another disclosure that was submitted a month ago, and I asked, surely, Doctor, a month ago, you realized that Dr. Octaviani caused Mr. Baglio's death. And there was a sidebar during that time, if my memory serves me correct, but Dr. Decter sat there and read his entire disclosure. And after sidebar, I said Doctor, did you find the spot about Dr. Octaviani. And what did he tell you? It wasn't there."
"There was some mention -- during closing statements, there was some reference to sidebar, sidebar conferences. I think we've gone over this in the instructions, but I just want to reiterate that you shouldn't infer that anything happens at sidebar as affecting what a witness says or any of the evidence in this case. Both parties are allowed to ask for sidebars. We've had a number of those. Sometimes, I called the sidebars. So if there was any suggestion that something happened, some witness’ testimony was affected as a result of the sidebar, you should disregard that."
3. Verdict against the weight of the evidence. Wynne argues that her motion for new trial should have been allowed because the verdict was "so markedly against the weight of the evidence as to suggest that the jurors allowed themselves to be misled, were swept away by bias or prejudice, or for a combination of reasons, including misunderstanding of applicable law, failed to come to a reasonable conclusion." W. Oliver Tripp Co. v. American Hoechst Corp., 34 Mass. App. Ct. 744, 748 (1993). "Whether to set aside a verdict because it is against the weight of the evidence is a question addressed to the discretion of the trial judge, and his decision will not be disturbed unless that discretion has been abused." Meyer v. Wagner, 57 Mass. App. Ct. 494, 504 (2003). We discern no abuse of discretion here. There was ample evidence from which the jury could reasonably conclude that Dr. Octaviani, a hospitalist, met the applicable standard of care when he did not override the cardiologist's treatment plan. Given that it was the jury's province to decide which of the competing expert witnesses to credit, see Commonwealth v. Fitzgerald, 376 Mass. 402, 411 (1978), the judge did not abuse his discretion in denying the motion for new trial.
Judgment affirmed.
Order denying motion for new trial affirmed.