MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This case arose out of an automobile accident. The plaintiff, Erin P. Fallon, appeals from the allowance of a motion for a new trial or remittitur filed by the defendants, Bond Brothers, Inc. (Bond Bros.), and Gerald McMorrow, on her negligence claims relating to that automobile accident. She also appeals from the judgment dismissing her claims under G. L. c. 93A and c. 176D against the insurer, Travelers Insurance Company (Travelers). We affirm.
Background . On July 15, 2004, McMorrow, an employee of Bond Bros., was driving a pickup truck and rear-ended the automobile that Fallon was driving and then struck the passenger door. Fallon declined treatment at the scene; instead her brother-in-law, who was driving nearby, picked her up and took her to a nearby medical facility. She was treated for a whiplash injury and strain. She was out of work for two and one-half weeks following the accident, and then returned to a full-time schedule.
The week following the accident, Fallon returned to the same medical center, complaining of headaches and chest pain caused by the accident; a few days later she visited Massachusetts General Hospital (MGH) with the same complaints. Later (in July, August, and September, 2004), claiming that she continued to have neck and back pain, headaches, dizziness, and nausea, Fallon was treated by a neurologist, Dr. Fullerton. She participated in prescribed physical therapy from July through October, 2004, but failed to appear for a scheduled appointment in November, 2004, and then never again followed up with Dr. Fullerton. Fallon claims she ceased medical treatment because she did not have medical insurance for a time after the personal injury (PIP) benefits ran out, but then resumed treatment at a later time when she obtained a job with medical benefits.
Fallon obtained a new position in November, 2004, and moved to Washington, D.C.
Fallon next sought treatment from Dr. Taylor, a new primary care physician in Virginia; she complained of continued neck and back pain, along with headaches. Fallon reported to Dr. Taylor that her symptoms were the result of the 2004 accident. According to the judge's findings, Fallon's medical records reflect notes by Dr. Taylor attributing the neck and back pain to the accident, exclusively based on Fallon's self-reported history. Fallon again was prescribed physical therapy, which she attended sporadically. In August, 2006, Fallon was treated by a neurologist, Dr. Jahan, for her neck pain and headaches She was diagnosed with both temporomandibular joint syndrome (TMJ) and bilateral carpal tunnel syndrome.
In November, 2006, Fallon was involved in another car accident, and again was rear-ended. Dr. Jahan was the only physician to whom she reported the 2006 car accident because, as she testified, she did not think it important to share the information with other healthcare providers. In 2008, Dr. Taylor referred Fallon to another neurologist, Dr. Osborne, based on her self-reported complaints of continuing headaches; Dr. Osborne prescribed physical therapy with Dr. Vahldick, who treated Fallon for sciatic pain and TMJ.
Fallon filed her complaint in March, 2007, alleging negligence by Bond Bros. and McMorrow, and unfair claim settlement practices pursuant to G. L. c. 93A and c. 176D against Travelers. The claim against Travelers was bifurcated and stayed pending resolution of the underlying negligence claim.
The defendants conceded liability on the negligence claim, and the matter was tried on the issue of damages only; the jury returned a verdict of $600,000 for the plaintiff. Bond Bros. and McMorrow moved for a new trial or remittitur, and the judge allowed the new trial motion after Fallon declined to accept a remittitur to $70,000. The second damages trial resulted in a jury verdict of $110,000 for the plaintiff. The unfair claim settlement action was then tried jury-waived before the judge who had presided at the second jury trial. In light of the remittitur of the prior verdict to $70,000 and the judgment in the second case for $110,000, the judge concluded that the prior settlement offers by the insurer did not constitute unfair claim settlement practices and, as a result, found no violation of c. 93A and c. 176D.
Admitted at trial were Fallon's medical records from various treating physicians; there were no medical records indicating permanent disability. According to the parties' joint pretrial memorandum (dated October 22, 2009), prior to the first trial Fallon's claimed medical bills and expenses (including lost wages) totaled approximately $27,000.
In the judge's memorandum of decision and order on McMorrow's and Bond Bros.' new trial motion, she found that Fallon's medical records from Dr. Taylor contained notes attributing Fallon's complaints of pain to the 2004 accident "based exclusively on Fallon's self-reported history of headaches from the 2004 motor vehicle accident." The judge also found that the opinions of Drs. Jahan and Osborne that Fallon's ongoing symptoms were causally related to the 2004 accident had no basis in medical evidence, especially in light of the fact that Fallon failed to inform Dr. Osborne of the 2006 accident.
Discussion . The plaintiff now argues that the judge who presided at the first trial erred in allowing the motion for a new trial and remitting the jury's verdict from $600,000 to $70,000, claiming that the judge's order is based on errors of law and fact, and also that the judge impermissibly drew inferences in the defendant's favor. We review the trial judge's decision for abuse of discretion. Passatempto v. McMenimen , 86 Mass. App. Ct. 742, 746 (2014). See Reckis v. Johnson & Johnson , 471 Mass. 272, 299 (2015) (abuse of discretion in granting new trial on ground of excessive damages so rare that actual instances where the decision is overturned on appeal are "almost nonexistent").
While initially, the judge's remittitur (a nearly ninety percent reduction of the award) appears extreme, in fact, the reduced award was significantly higher than the total damages claimed for the period between July and October, 2004, the period during which the judge determined that Fallon had incurred the relevant medical bills and expenses, lost wages, and pain and suffering that resulted directly from the July 15, 2004, accident. The judge found that "[a]ll medical treatment and/or diagnosis from 2005 through 2010 were based on the plaintiff's subjective reports of pain from the 2004 accident. On review of the evidence, the jury's excessive verdict was not supported by the evidence and was likely swayed by the plaintiff's testimony that characterized her injury and attribution to the 2004 incident." We are satisfied that the judge's conclusion is adequately supported by the record. See Reckis , supra at 299 (error of law if damages awarded are greatly disproportionate to injury proven).
In addition, the judge found that, of the seven treating physicians during this period, only one physician (Dr. Jahan) was aware of Fallon's subsequent car accident in 2006.
The judge also concluded that statements made during the plaintiff's closing argument were improper and likely invoked "emotional sympathy" toward the plaintiff, despite the judge's attempts to cure the impropriety by instructing the jury not to put themselves in the shoes of the plaintiff. See Reckis , supra at 299 (damages are excessive where the jury is "influenced by passion, partiality, prejudice or corruption"). We do not consider this rationale or the judge's reference to newly discovered evidence as the excessiveness of the damages alone provided a sufficient basis for the judge to allow the new trial motion.
After Fallon declined to accept the remittitur, "the allowance of a motion for a new trial based upon an ... excessive award of damages, and the direction on a[ ] ... remittitur, [then] rests in the sound discretion of the judge." Baudanza v. Comcast of Mass. I, Inc ., 454 Mass. 622, 630 (2009), quoting from Blake v. Commissioner of Correction , 403 Mass. 764, 771 (1989). See Mass.R.Civ.P. 59(a), 365 Mass. 827 (1974). "We do not substitute our judgment for that of the trial judge who saw the witnesses." Baudanza , supra , quoting from Blake , supra . For these reasons, and given our circumscribed standard of review, we see neither error nor abuse of discretion in the allowance of the motion for a new trial on the issue of damages.
After the allowance of the motion for a new trial, Fallon sought the entry of separate and final judgment, which was denied. On appeal, she argues that the judge erred in denying her motion and that she was prejudiced by having to conduct a second jury trial and a jury-waived trial on the unfair settlement practices claim before having her appeal of the allowance of the motion for a new trial resolved. She cites no authority for this proposition. We conclude that the ruling allowing the motion for a new trial was entirely interlocutory; the entry of separate and final judgment pursuant to Mass.R.Civ.P. 54 (b), 365 Mass. 820 (1974), would not have been appropriate in these circumstances.
Second trial . Fallon next argues that, at the retrial, the judge abused his discretion in denying her motion in limine to exclude the testimony of a late-disclosed defense expert. The expert apparently was disclosed on the eve of trial, and Fallon claims she had no opportunity to depose him or to conduct discovery concerning his testimony. The defendants counter that Fallon supplemented her discovery one month before trial with thousands of pages of additional medical records and bills, causing a postponement of the trial. They also argue that the substance of the expert's opinion was substantially similar to that of the expert from the first trial. Given the deference we accord a trial judge in exercising broad discretion in admitting or excluding expert evidence, see Palandjian v. Foster , 446 Mass. 100, 104 (2006), we see no error here.
Unfair claims (third) trial . Fallon argues that the judge committed an error of law by holding she lacked standing to assert a claim pursuant to G. L. c. 176D, § 3(9)(g ), inserted by St. 1972, c. 543, § 1, which provides that it is an unfair claim settlement practice to "[c]ompel[ ] insureds to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amounts ultimately recovered in actions brought by such insureds " (emphases supplied). The judge ruled that the plain language of this subsection indicates it applies only to "insureds," which Fallon is not, in contrast to other subsections which have no such limitation. In addition to the plain language of the statute, the issue was resolved previously by the Supreme Judicial Court in Jacobs v. Town Clerk of Arlington , 402 Mass. 824, 829 (1988), which held that the language of subsection (g ) confers no rights to any person other than the insured. Ibid . Finally, Fallon did not reference subsection (g ) as a basis for her claim in her G. L. c. 93A demand letter.
Fallon relies on Rhodes v. AIG Domestic Claims, Inc ., 461 Mass. 486, 501 (2012), arguing that case looked to the legislative purpose of the statute to extend the protections of § 3(9)(f ), inserted by St. 1972, c. 543, § 1 ("[f]ailing to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear") to third-party claimants. That case clearly is distinguishable because, unlike subsection (g ) at issue in the present case, subsection (f ) does not expressly limit the protection to those who are insured. Ibid .
As to the substance of the remaining aspects of Fallon's asserted unfair claim settlement practices, specifically the insurer's alleged failure "to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear" under § 3(9)(f ), there is little doubt that the defendant's liability was clear from the outset, given the uncontested circumstances of the accident. The issue from the beginning was determining the value of the case. See O'Leary-Alison v. Metropolitan Property & Cas. Co ., 52 Mass. App. Ct. 214, 217-218 (2001).
As the trial judge noted in his comprehensive findings and rulings, while the insurer failed to offer the full value of its assessment of the value of the case or the full sum, plus interest, of the original verdict, the offers were not final and still were subject to negotiation between the parties. See Bobick v. United States Fid. & Guar. Co ., 439 Mass. 652, 662 (2003), quoting from Forcucci v. United States Fid. & Guar. Co ., 11 F.3d. 1, 2 (1st Cir. 1993) ( § 3  does not call for final offer immediately, only the that offer be within the "scope of reasonableness"). If the jury's original verdict had stood, Travelers's offers likely would not be considered reasonable. However, in light of the remittitur order and the reduced verdict of the second trial, the offers appear to have been "within the scope of reasonableness." Bobick , supra .
The day after the accident occurred, St. Paul/Travelers contacted Fallon to discuss the incident; her attorney, Kathryn Fallon, responded on November 19, 2004, providing details of the accident and demanding payment of $1,099.31 for rental car expenses. After many months of requesting information from Attorney Fallon regarding actual medical expenses incurred by Fallon, and receiving no reply, on November 7, 2006, St. Paul/Travelers made its first offer, by certified mail, of settlement to Attorney Fallon in the amount of $20,000, representing $2,070 in lost wages, $10,014 in medical expenses, and $8,000 to cover personal injury payments (PIP); a check in the amount of $1,099.31 was sent reimbursing Fallon for a rental car expense. Not until May 29, 2008, did Attorney Fallon make her first settlement demand, of $500,000, which was rejected by Travelers. During mediation, Travelers increased its settlement offer to $43,600 (Travelers was prepared to offer $75,000), and Attorney Fallon reduced her offer to $350,000. Mediation was terminated by Travelers when the mediator determined there was no possibility of settlement. On March 29, 2010, new co-counsel, Attorney McNaught, made a settlement demand of $250,000, and Travelers countered with $75,000, which was rejected.
Judgment affirmed .