Home RICHARD THIBAULT & others vs. THOMAS J. MACK & another.

19 Mass. App. Ct. 916

December 5, 1984

Robert A. Murphy for the plaintiffs.

Stephen J. Brown for the defendants.

Although a motion for a new trial is ordinarily addressed to the discretion of the trial judge, Galvin v. Welsh Mfg. Co., 382 Mass. 340 , 343 (1981),

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where it is clear that damages are inadequate "and the inadequacy is such as to descend to the level of unreasonableness," Freeman v. Wood, 379 Mass. 777 , 785 (1980), the judge may be obliged to order a new trial, or at his election, condition denial on the defendant's acceptance of an additur. See Mass.R.Civ.P. 59(a), 365 Mass. 827 (1974). This is such a case. The jury found the defendants liable for physical injuries sustained by the plaintiff Melissa Thibault (a baby) in what could have been an extremely serious accident. Melissa was bleeding from the ears and was thought likely to have a skull fracture. She was taken to Wilmington Regional Health Center and transferred within hours to an intensive care unit at Children's Hospital Medical Center in Boston. Bills for medical services amounted to $6,333.05. The judge instructed the jury that, if the defendants were found to be liable, their liability would extend to compensating the father for reasonable medical expenses. There was no evidence from which the jury could have concluded that the medical expenses were not reasonable in the circumstances. Nevertheless the jury awarded only $500 to the father. In view of the question posed by the jury to the judge and his answer thereto, it is inconceivable that they could have mistakenly added the medicals to their award of damages to Melissa ($6,500). In these circumstances we think that the motion for a new trial of the father's claim should be allowed unless the defendants should agree to an additur sufficient to raise the father's award of damages to $6,333.05, adjusted to take account of the stipulation docketed on June 30, 1983, plus interest as provided by law. There was no abuse of discretion in denying the motion for a new trial as it related to the other claims. The order denying the motion for a new trial is reversed as to the plaintiff Richard Thibault, and the case is remanded for further proceedings consistent herewith.

So ordered.