JOHN TARPEY [Note 1] VS. CRESCENT RIDGE DAIRY, INC., & others [Note 2]

GILLERMAN, J. Catherine A. Tarpey, a vigorous woman until her last illness, died in November, 1990, at age 72. When hospitalized, Tarpey was diagnosed with hypercalcemia [Note 3] and elevated levels of vitamin D in her blood stream. She was placed on prednisone therapy which allegedly compromised her immune system and led ultimately to her death from pneumonia.

Her executor, the plaintiff, brought suit in July, 1991, against Crescent Ridge Dairy, Inc. (Crescent Ridge), which produced and distributed dairy products including milk, and various other parties [Note 4]. Crescent Ridge fortified its milk with vitamin D concentrate, but during the relevant period (1990) it did so with up to five hundred times the amount of vitamin D allowed by law. See 105 Code Mass. Regs. s. 541.002 (1986). The plaintiff claimed that Tarpey usually drank two or three full glasses of Crescent Ridge milk daily, and her ingestion of large amounts

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of vitamin D in the Crescent Ridge milk was the cause of her hypercalcernia which, as we have said, allegedly led to her death. The expert for Crescent Ridge, on the other hand, testified that Tarpey's death was related to factors other than her consumption of Crescent Ridge milk.

In response to special questions, the jury found that Crescent Ridge had breached the warranties of fitness and merchantability, that it was negligent in its addition of vitamin D to its milk, but not grossly negligent, that Robert Parrish, the president of Crescent Ridge, individually was negligent, and that such negligence amounted to gross negligence, and that Crescent Ridge and Robert Parrish had caused Tarpey's injuries but not her death. The jury awarded damages in the amount of $125,000 for Tarpey's injuries, and punitive damages in the amount of $150,000 against Robert Parrish, which was later vacated because of the absence of a finding that Parrish's conduct caused Tarpey's death.

On the c. 93A claims against Crescent Ridge and Robert Parrish (defendants), see note 4, supra, the judge assessed damages caused by the defendants' breaches of warranties of merchantability and fitness in the amount of $250,000 which, the judge particularly stated, "includes and is not in addition to the $125,000 awarded by the jury." Still later, the judge entered an order which stated that "[t]he damages which I assessed . . . were not multiple damages. . . . The interest shall run on the sum of $250,000." The plaintiff also was awarded his costs, attorney's fees and their costs, expert witness fees, and interest on $250,000 from the date of the commencement of the action.

Timely notices of appeal were filed by Crescent Ridge and Robert Parrish (as appellants regarding various issues arising under c. 93A and other procedural matters), and by the plaintiff (as cross-appellant regarding the admission in evidence, over his objections, of the opinion testimony of the defendant' expert, Andrew Rosenberg, M.D. [Note 5], and regarding allegedly inconsistent verdicts), all as more particularly described below.

We discuss first the plaintiff's claims on appeal.

1. The admission of Rosenberg's opinion testimony. First, the qualifications of Rosenberg. Rosenberg is a board certified

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pathologist employed by the pathology department of the Massachusetts General Hospital, an associate professor of pathology at Harvard Medical School, and the author of approximately one hundred articles in scientific journals. His specialty is anatomy pathology, which is the study of disease using human tissue. His particular field of interest is in the surgical pathology of diseases of the skeleton - a difficult field with few physicians having the necessary expertise. Rosenberg's credentials are not in controversy.

We summarize Rosenberg's testimony. There are various causes of hypercalcemia, the most common being cancer. Cancer causes hypercalcemia by destroying the bones which contain calcium which is then released into the bloodstream. The cancer produces a parathyroid hormone related protein known as PTHrP. PTHrP causes the skeleton to release calcium in the blood, and cancer cells which secrete PTHrP are the most common cause of hypercalcemia. The size of the tumor does not determine the amount of PTHrP produced.

Numerous tests had been conducted to determine whether Tarpey had cancer, but no cancerous growth was identified. Rosenberg was given the court's permission to review the slides of Tarpey's lung tissue which had been obtained in the autopsy and thereafter properly preserved. Rosenberg's examination of the slides revealed a type of cancer in Tarpey's lung tissue. Rosenberg gave this new information to Dr. Godleski, who had previously reviewed Tarpey's autopsy at the Brigham and Women's Hospital where Tarpey was last treated. Godleski prepared twelve or fourteen slides of Tarpey's tumor and submitted them to Dr. Ronald A. DeLellis, a pathologist at the Tufts New England Medical Center, to test for the presence of PTHrP using polyclonal antibodies. This type of study, known as immunohistochernistry, is used by pathologist to determine whether a particular substance is present in tissue. It is not disputed that the use of antibodies to identify PTHrP molecules is a recognized and accepted technique within the field of immunohistochemistry [Note 6].

After completing his PTHrP antibody tests, DeLellis's test

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slides were delivered to Rosenberg. Rosenberg is an expert in immunohistochemistry. He has worked with inummohistochemistry tests "as much as probably anybody in the country." Rosenberg examined the slides and concluded that the immunohistochemistry test performed by DeLellis to identify the PTHrP molecule, using polyclonal antibodies, "did not work . . . everything, the tumor, and the lung, and everything else on the slide stained positively. And that's called non-specific staining . . . tissues on the slide that should not contain PTHrP were staining indicating there was false staining . . . therefore [it was] impossible to come to a conclusion regarding the results based on that slide."

Of the slides sent to Rosenberg by DeLellis, six were unstained; they had not been subject to testing by DeLellis. Once Rosenberg was assured that these slides of Tarpey's lung tissue showed a tumor, he sent the slides to Dr. Leonard Deftos in California for testing.

At this point in Dr. Rosenberg's testimony, and prior to his expressing any opinion, the judge called for a voir dire [Note 7]. The following is a summary of that testimony.

Rosenberg had reviewed the "medical literature from the different laboratories in this country that have antibodies to PTHrP, [and found that] Dr. Deftos's lab used the most stringent criteria in his testing, and in his development of the antibodies. . . . [Rosenberg] wanted the best lab to work with the tissue and as far as [he] was able to determine [Deftos's laboratory] was the

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best lab to do it." Deftos's laboratory generated monoclonal antibodies which "recognized" the PTHrP molecule and nothing else. However, these particular antibodies are not available at the Massachusetts General Hospital, and Rosenberg had decided to use the Deftos-developed antibodies and no other.

The slides went forward to Deftos. He performed the tests required to determine whether the tumor cells in Tarpey's tumor contained PTHrP, following which the stained slides were returned to Rosenberg. Rosenberg examined the test results the stained slides - processed by Deftos's laboratory, and he determined that Tarpey's tumor cells were producing PTHrP. On cross-examination within the voir dire, the defendant established that the antibodies produced by Deftos were used only by his laboratory, and that Rosenberg had never before used the antibody developed by Deftos. The plaintiff did not make any inquiry regarding the difference, if any, between the polyclonal antibody used by DeLellis and the monoclonal antibody used by Deftos [Note 8], nor regarding any of the other bases for objection raised in his motion in limine. Rosenberg's voir dire terminated at this point.

Based on Rosenberg's voir dire testimony, the plaintiff argued that the conditions for admissibility imposed by Department Of Youth Servs. v. A Juvenile, 398 Mass. 516 , 531-532 (1986), had not been satisfied. That case holds that where an expert is basing his opinion on facts or data not admitted in evidence, those facts, or data, must be "independently admissible," and they must be "of the sort that experts in that specialty reasonably rely on in forming their opinions." Ibid. Here, the defendant was offering the opinion testimony of Rosenberg based on the Deftos test results without producing Deftos or any of his staff involved in the test procedures.

The judge concluded that the requirements of A Juvenile were satisfied, and Rosenberg would be permitted to express his opinion. The plaintiff's motion in limine was denied. Rosenberg thereupon testified in detail and at length, giving his opinion that the PTHrP secreted by Tarpey's lung tumor - not the vitamin D - was the likely cause of her hypercalcemia [Note 9], and

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that the actual causes of Tarpey's death were unrelated either to her high levels of vitamin D or to the prednisone therapy.

On cross-examination, the plaintiff established that the antibody used by Deftos in his testing procedures was monoclonal, while the antibody used by DeLellis was polyclonal, and that Rosenberg did not know whether any other laboratory used monoclonal antibodies to test for PTHrP. On the basis of Rosenberg's testimony as just summarized, the plaintiff now argues that the Deftos test is neither "generally accepted" in the scientific community under the Frye test (applicable at the time of trial, see Commonwealth v. Fatalo, 346 Mass. 266 [1963], adopting Frye v. United States, 293 Fed. 1013 [Ct. App. D.C. 19231), nor valid or reliable under Commonwealth v. Lanigan, 419 Mass. 15 (1994). Lanigan was decided after the trial of this case; the decision is discussed below.

The plaintiff acknowledges in his brief that the use of polyclonal antibodies to test for the presence of PTHrP (as performed by DeLellis) was generally accepted in the scientific community, but he argues there was no evidence that the use of monoclonal antibodies to test for the presence of PTHrP (as performed by Deftos) was generally accepted in the scientific community. He further reasserts the other arguments in his motion in limine (see note 7, supra). Thus, the argument continues, the judge made a critical error in admitting Rosenberg's opinions - an error that so materially affected the outcome of the case, that he is entitled to a new trial.

We disagree. We find that this case falls within "those cases which accept expert testimony based on personal observations, clinical experience, or generally accepted scientific techniques without application of the possibly more rigorous analysis set out in [Frye/Lanigan] . . . ... Vassallo v. Baxter Healthcare Corp., 428 Mass. 1 , 15 & n.15 (1998) (collecting cases).

The argument that the use of monoclonal antibodies for immunohistochemistry testing is outside the circle of general acceptance lacks an evidentiary foundation. In spite of ample opportunity to cross-examine Rosenberg, both during his voir dire and later before the jury, regarding the importance of any differ-

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ence between polyclonal and monoclonal antibodies, the plaintiff made no such inquiry. The plaintiff called two expert rebuttal witnesses, Michael Horlick, M.D., and Leonard Gottlieb, M.D. Again, no inquiry was made of either expert regarding any important difference between monoclonal and polyclonal antibodies in immunohistochemistry testing for PTHrP. There is simply nothing in the record before us which suggests that Deftos did anything more than improve the immunohistochernistry technique of testing for PTHrP, nor is there anything in the record which suggests that this modification in technique was based on a new scientific theory calling for evidence of general acceptability.

The plaintiff cannot rely only on unsupported assertions in his motion in limine and his brief to propose that the use of monoclonal antibodies to test for PTHrP is a new "scientific theory" requiring independent evidence of general acceptability. When, as in this case, the plaintiff has acknowledged the general acceptance of antibodies as acceptable vehicles for testing for PTHrP, it is incumbent upon the plaintiff to press the issue of whether the particular variation developed by Deftos is based on a new scientific theory requiring independent evidence of general acceptance. Cf. Commonwealth v. Daye, 411 Mass. 719 , 741 (1992) (less favorable standard of review where defendants neither sought voir dire nor objected to expert's testimony on basis of Frye test).

Even assuming that Deftos's substitution of monoclonal for polyclonal antibodies was a new scientific theory, we nevertheless conclude that the evidence offered by the defendant was sufficient to satisfy the requirements of A Juvenile, the decision upon which the judge correctly relied. There the court held that an expert is permitted to base an opinion on facts or data not in evidence "if the facts or data are independently admissible and are a permissible basis for an expert to consider in formulating an opinion." 398 Mass. at 531. This rule, wrote the court, will eliminate the need for producing exhibits and witnesses "whose sole function is to construct a proper foundation for the expert's opinion." Ibid. At the time of trial, the leading Massachusetts case regarding the admissibility of a new "scientific theory" was Commonwealth v. Fatalo, 346 Mass. at 269 ("Judicial acceptance of a scientific theory or instrument can occur only when it follows a general acceptance by the community of scientists involved."). Fatalo relied on Frye v. United States,

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293 Fed. 1013 (Ct. App. D.C. 1923), the leading Federal case, which involved the admissibility of the results of a polygraph test [Note 10].

Recent decisions have emphasized the underlying rationale of Frye/Fatalo. Two days after the jury announced its verdict in this case, the United States Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The "basic reasoning" of the Daubert opinion has since been adopted by the Supreme Judicial Court "because it is consistent with our test of demonstrated reliability" (emphasis added). Commonwealth v. Lanigan, 419 Mass. at 26 [Note 11]. The court in Lanigan reviewed the Massachusetts decisions regarding the admissibility of expert testimony based on scientific knowledge. Those decisions have focused on the Frye test: "whether the community of scientists involved generally accepts the theory or process." Id. at 24, quoting from Commonwealth v. Curnin, 409 Mass. 218 , 222 (1991). The court pointed out, however, that "[t]he ultimate test . . . is the reliability of the theory or process underlying the expert's testimony" (emphasis added). Ibid. Continuing its discussion of Frye, the court wrote, "Perhaps the relevant scientific community has not yet digested and approved the foundation of the theory or process, but the theory or process is so logically reliable that evidence should be admitted even without its general acceptance by involved scientists" (emphasis added). Ibid, Thus, the Frye test, seen retrospectively, could not, as of the time of the trial,

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be taken as an inflexible rule of evidence even when applied to a new scientific theory.

As to the case at hand. The judge admitted Rosenberg's opinion testimony. Implicit in the judge's decision was his judgment, after considering the plaintiffs carefully prepared motion in limine, and after an extensive voir dire of Rosenberg's testimony, that the Deftos test results could provide the basis of Rosenberg's opinion. Rosenberg's engagement of the Deftos laboratory was undertaken only after a careful search through the literature, and assurances that the Deftos laboratory "used the most stringent criteria . . . [and] was the best lab" to do the required immunohistochemistry test. Moreover, the plaintiff does not seriously argue that Rosenberg was not qualified to render an opinion interpreting the results of the Deftos, or similar, tests. The heart of the defendant's case, as we have said, was Rosenberg's expert opinion testimony. The plaintiff had already put on his expert in support of his theory of the case. Rosenberg's expertise was unusual. There are not many people in the world, Rosenberg testified, who specialize "in the surgical pathology of diseases of the skeleton." He had worked in the field of immunohistochernistry "as much as probably anybody in the country." There was ample justification for the judge's finding that Rosenberg's opinions, based on the Deftos test results, were plainly reliable if not entirely persuasive, and his ruling permitting the admission of Rosenberg's opinion testimony was not error. See Commonwealth v. Gordon, 422 Mass. 816 , 842 (1996).

2. The allegedly inconsistent verdicts. The plaintiff claims that the jury's conclusion that the defendants' negligence did not result in Tarpey's death is inconsistent with their conclusion that the defendants' negligence caused Tarpey's injuries [Note 12]. More specifically, the argument is that, since the defendants were found liable for negligently causing Tarpey's injuries, that conclusion had to have been based upon her ingestion of Crescent Ridge milk with the grossly excessive vitamin D. Since there was no evidence, the argument runs, of any injury produced solely by vitamin D intoxication, the injuries Tarpey suffered could only have been caused by her hypercalcernia (the alleged product of the vitamin D intoxication) which, according to the plaintiff, was the condition that led to her death. Thus the

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events of Tarpey's injury and death were intertwined and could not be separated, the plaintiff argues.

This claim of inconsistent verdicts, made only on appeal (according to the transcript of the trial before us), comes too late. Uloth v. City Tank Corp., 376 Mass. 874 , 884 (1978) (having failed to present a motion raising the issue of inconsistency in the verdict before the dismissal of the jury, defendants may not argue inconsistency on appeal). Adams v. United States Steel Corp., 24 Mass. App. Ct. 102 , 104 (1987) (late claim of inconsistency may not be raised in a motion for a new trial). See Vassallo v. Baxter Healthcare Corp., 428 Mass. at It ("in civil cases . . . issues not . . . raised in the trial court will not be considered on appeal"). In any event the argument has no merit. The jury and the judge may well have inferred that Tarpey's vitamin D intoxication alone caused her pain and suffering, justifying the award of compensatory damages.

The plaintiff also claimed below, as he does in this court, that there was an inconsistent verdict regarding punitive damages. The jury first found that Parrish was grossly negligent (question #11), but then found that Parrish's negligence did not cause the decedent's death (question #12). The trouble arises a little further on. Without objection from the plaintiff, the verdict slip for question #15 (regarding the amount of punitive damages) instructed: "If you found gross negligence [was] committed by Crescent Ridge Dairy or Robert Parrish or Freeman Industries, answer question #15 only as to that person or entity which you found committed gross negligence." This statement omitted the key instruction, which the judge had earlier clearly given to the jury, that punitive damages were available only if the defendant's gross negligence was the cause of the decedent's death [Note 13]. The result, not surprisingly, was the jury's punitive damage award of $150,000 against Robert Parrish because they had found his conduct to be grossly negligent. Thus the trouble wag not with the answer to question #15, but rather with the verdict slip for that question, which erroneously allowed the jury to award

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punitive damages for gross negligence, even if they did not find that said negligence caused the decedent's death. There was no "inconsistent verdict" on this branch of the case.

In the end, what occurred worked no prejudice to the plaintiff. As we pointed out in Footit v. Monsees, 26 Mass. App. Ct. 173 , 181 (1988) (Cutter, J.), "[w]here an answer to one special question is dispositive of the case and renders immaterial the answer to another special question, the dispositive answer is controlling." When the jury found that Parrish's conduct was not the cause of the decedent's death, that answer controlled the disposition of the punitive damages question and rendered the jury's answer to question #15 immaterial.

We turn, now, to the defendants' claims on appeal.

1. The defendants claim that the judge erred in allowing the plaintiff to amend his complaint to add c. 93A claims, there having been no demand letter prior to the commencement of the action in July, 1991. See G. L. c. 93A, s. 9(3). Subsequently, the plaintiff did serve a demand letter dated September 14, 1992. The letter carefully described the events giving rise to the claim as well as the full reach of the claim under 93A. See Slaney v. Westwood Auto, Inc., 366 Mass. 688 , 704 (1975). The letter solicited a settlement offer within thirty days. On October 14, 1992, counsel for Crescent Ridge responded with a $250,000 offer to settle all claims against that defendant. The plaintifFs motion to file a second amended complaint (reciting the service of the 93A demand letter and the response thereto) was filed on November 13, 1992, and allowed on November 18, 1992.

There was no error. One purpose of the demand letter requirement is to encourage negotiation and settlement. See ibid. Crescent Ridge submitted a substantial offer in response to the demand. Contrary to the defendants' assertions, the fact that the demand letter did not specify the dollar amount demanded is not decisive since, as noted above, the letter was otherwise comprehensive and detailed. Compare Fredericks v. Rosenblatt, 40 Mass. App. Ct. 713 , 716-718 (1996) (93A demand letter adequate even though damages claimed grossly exceeded amount justified by the evidence).

The thirty-day requirement is not necessarily jurisdictional. See York v. Sullivan, 369 Mass. 157 , 163 (1975) ("[T]he thirty day requirement . . . is not jurisdictional in the sense that a party cannot waive it . . . . Demand before suit is often a fruitless ceremony."). Further, in such cases, dismissal does not

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"ordinarily bar a suit brought after the thirty days ha[ve] run." Id. at 164. See Fredericks, supra at 716-717 (rejecting "jurisdictional" argument for 93A demand letter and citing York v. Sullivan, supra).

On the facts of this case, we see no basis upon which the plaintiff's 93A claim may, or should be, nullified.

2. The defendants claim that the judge's award of damages was beyond his authority. This argument is based on the fact that the jury awarded the plaintiff $125,000 and the judge, on the plaintiff's 93A claim, awarded him $250,000. Since, the argument continues, the judge made no finding of wilfulness, doubling of the award was beyond the judge's authority.

This argument fails to take account of the judge's subsequent order in which he stated that the 93A damages assessed by him "were not multiple damages." There was no error. See Chamberlayne Sch. v. Banker, 30 Mass. App. Ct. 346 , 353-355 (1991) (judge substituted his own 93A findings on damages for those of the jury; held, no error).

3. The award of attorney's fees. The amount of the award for attorney's fees is within the "broad discretion of the trial judge." DiMarzo v. American Mut. Ins. Co., 389 Mass. 85 , 106 (1983). The judge, who was the trial judge, acting on the motion for fees, held an evidentiary hearing in which the entire matter of fees was reviewed. Following the hearing, the judge issued his memorandum of decision in which he carefully described his findings, which were consistent with Linthicum v. Archambault, 379 Mass. 381 , 388-389 (1979), and he explained his rulings. We disagree in one respect only.

The plaintiff's 93A claim was not included in the complaint until November 18, 1992. While the 93A claim, and the evidence in support thereof, was entirely parallel with the negligence claim (breach of warranty), see Maillet v. ATF Davidson Co., 407 Mass. 185 , 189 (1990), still, only a 93A claim in this case would permit the recovery of attorney's fees. However, we see no basis upon which the plaintiff may recover attorney's fees on his 93A claim for the period prior to November 18, 1992, when the 93A claim was added to the case. Since the judge properly limited the award of fees to the period ending with the date of the rejection of the defendants' reasonable offer of settlement, see c. 93A, s. 9(4), namely, October 14, 1992, the plaintiff is not entitled to an award of attorney's fees. The same analysis applies to the award of costs.

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4. Defendants' rule 67 motion. Finally, the defendants claim the judge erred in denying their rule 67 motion to deposit the sum of $200,000 into court to avoid the accrual of statutory interest. Mass.R.Civ.P. 67, 365 Mass. 835 (1974). The judge's denial of the motion was not an abuse of his discretion. See Smith and Zobel, Rules Practice s. 67.2 (1981) (where would-be-depositor denies liability, the court will probably withhold leave to deposit). Contrast cases where the depositor is a mere stakeholder, or does not contest liability to at least someone among two or more claimants, or denies liability only in part. See ibid.

For the reasons stated above, the amended judgment is to be modified to strike the award of attorney's fees and costs. As so modified, the amended judgment is affirmed.

So ordered.