2017 Mass. App. Div. 136

May 26, 2017 - August 29, 2017

Appellate Division Northern District

Court Below: District Court, Lawrence Division

Present: Coven, P.J., Singh & Flynn, JJ. [Note 2]

J. Gregory Batten for the plaintiff.

Christopher J. O'Rourke for the defendants.

FLYNN, J. Plaintiff Gail Chenell ("Chenell") brought this personal injury action against defendants Central Wheelchair and Van Transportation, Inc. and Brendan M. Cross (hereinafter collectively referred to as "Central Wheelchair/Cross"). A trial resulted in a directed verdict in favor of the defendants. As this action arose out of a motor vehicle accident, it is governed by G.L. c. 231, § 6D, which requires $2,000.00 in medical expenses as a threshold measure to recover damages for pain and suffering. At trial, the plaintiff did not submit any evidence of actual medical bills.

Page 137

The defendants moved pursuant to Mass. R. Civ. P. 50(a) for a directed verdict on that basis, which was allowed. The plaintiff now appeals that order and asserts as error issues solely related to the application and interpretation of G.L. c. 231, § 6D. We affirm. [Note 3]

Chenell acknowledges that she did not offer any medical bills or other medical expenses into evidence. There is no dispute that Chenell failed to certify medical bills in accordance with G.L. c. 233, § 79G or attempt to offer actual medical bills or expenses in any other fashion. Chenell asserts that she met a "serious injury requirement" of G.L. c. 231, § 6D, and further argues that it was for the jury to so decide based upon the evidence of a "9% whole person impairment" and the medical records of treatment provided. However, Chenell inaccurately characterizes this statute; § 6D(3) states that there is an exception to the tort threshold where the injury "consists in whole or in part of permanent and serious disfigurement." The statute provides as follows:

"In any action of tort brought as a result of bodily injury, sickness or disease, arising out of the ownership, operation, maintenance or use of a motor vehicle within this commonwealth by the defendant, a plaintiff may recover damages for pain and suffering, including mental suffering associated with such injury, sickness or disease, only if the reasonable and necessary expenses incurred in treating such injury, sickness or disease for necessary medical, surgical, x-ray and dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral expenses are determined to be in excess of two thousand dollars unless such injury, sickness or disease (1) causes death, or (2) consists in whole or in part of loss of a body member, or (3) consists in whole or in part of permanent and serious disfigurement, or (4) results in such loss of sight or hearing as is described in paragraphs (a), (b), (c), (d), (e), (f) and (g) of section thirty-six of chapter one hundred and fifty-two or (5) consists of a fracture."


Page 138

The general rule of statutory construction requires that a statute is to be interpreted "according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated." Commonwealth v. Galvin, 388 Mass. 326, 328 (1983), quoting Industrial Fin. Corp. v. State Tax Comm'n, 367 Mass. 360, 364 (1975). The exceptions to the tort threshold are clearly specified under the plain language of the statute. There is no "serious injury" exception as claimed by the plaintiff. If the Legislature had intended for there to be such a requirement, it would have been included in the statute. Rather, the exception calls for "permanent and serious disfigurement," and Chenell offered no evidence of disfigurement at trial and does not argue such. Chenell failed to meet any of the exceptions under the statute.

Chenell lastly argues that the judge erred in not allowing the jury to decide whether the plaintiff's evidence of medical treatment was sufficient to support a reasonable circumstantial inference that her medical expenses must have exceeded $2,000.00. There is nothing in G.L. c. 231, § 6D that supports such a contention, and we do not so find. Chapter 231, § 6D states that a plaintiff may recover damages for pain and suffering only if the reasonable and necessary medical expenses are determined to be in excess of $2,000.00 (unless one of the exceptions apply). To allow a claimant to circumvent the tort threshold by not offering direct evidence of actual medical expenses would be contrary to the plain language of the statute.

Chenell has the burden of proof as to all elements of her claim, including proving damages, and did not certify medical bills pursuant to G.L. c. 233, § 79G or otherwise attempt to offer medical bills into evidence. Chenell, by her own such inaction, failed to meet the tort threshold.

In DeMarco v. Martin, 2003 Mass. App. Div. 95, the Appellate Division upheld the trial court's entry of a directed verdict for the defendant where the plaintiff did not submit medical bills into evidence in compliance with G.L. c. 233, § 79G and otherwise did not offer evidence as to the dollar amount of the medical bills. The Division held as follows:

"The manner and means of introducing medical bills and reports could scarcely be more clear, or easier. Plaintiff's failure to avail herself of the benefits of G.L. c. 233, § 79G, or any of the other avenues by which these records could have been successfully introduced into evidence, has left plaintiff unable to prove an essential element of her claim. The trial judge was correct to deny plaintiff's request to admit her medical records, as offered. Without those records in evidence, the court then had little choice but to allow defendant's motion for a directed verdict on plaintiff's pain and suffering claim."

Id. at 98.

In the present action, Chenell similarly failed to introduce evidence of her medical bills and thus failed to prove an essential element of her case. On the issues raised in the appeal, we find no error. The directed verdict in favor of Central Wheelchair/Cross was properly granted by the court, and we affirm.


[Note 1] Brendan M. Cross.

[Note 2] The Honorable Sabita Singh participated in the hearing of this case, but was appointed to the Appeals Court prior to the issuance of this opinion.

[Note 3] Following the entry of judgment on February 9, 2016 and the plaintiff's filing of a notice of appeal on February 11, 2016, the defendants moved to dismiss the appeal in the trial court, on May 26, 2016, for the plaintiff's failure to file an "appeal on the record of proceedings" within thirty days of filing the notice of appeal, as required by Dist./Mun. Cts. R. A. D. A. 8C. The plaintiff opposed the motion; on June 1, 2016, moved for an enlargement of time to comply with Rule 8C and filed the original transcript; and on June 2, 2016, filed six copies of her appeal on the record of proceedings. On August 1, 2016, the trial court allowed the plaintiff's motion for enlargement of time to comply with Rule 8C, pursuant to Rule 14(b), but took no action on the defendants' motion to dismiss the appeal, referring it to our attention. The defendants renewed the motion to dismiss in the Appellate Division, which the plaintiff opposed. We need not address the motion given our disposition of this case, but note that the trial court effectively denied the motion to dismiss by allowing the motion for an enlargement of time to comply with Rule 8C, which was the sole basis of the motion to dismiss.