JOHN NAUGLER v. NOAH D. ELLIS and another [Note 1]

FINIGAN, J. The plaintiff, John Naugler ("Naugler"), appeals from a judgment entered in favor of the defendant, Noah D. Ellis ("Ellis"), in this motor vehicle tort action. The appeal comes before us on the record of the proceedings pursuant to Dist./Mun. Cts. R. A. D. A., Rule 8C.

1. Procedural history. The action arose from a garden variety automobile crash that occurred in Weymouth, Massachusetts on August 26, 2010. Naugler was a passenger in a vehicle that collided at an intersection with one driven by Ellis, the key issue for trial being which operator ran the red light. Naugler filed a lawsuit in Brockton District Court on August 2, 2012 seeking damages caused by the negligence of Ellis; some six weeks later, Kelly Finn ("Finn"), the driver of the vehicle in which Naugler was a passenger, also filed suit against Ellis. Finn filed her case in the small claims session of the Brockton District Court, which was later transferred to the civil session. Ellis filed a motion to consolidate the two cases, which the trial judge allowed as to discovery matters only. Both Naugler and Finn were represented by the same counsel.

Both cases were called for trial on September 24, 2013. On the morning of the trial, the trial judge stated his intention, despite his earlier ruling, to "consolidation for liability issues." Naugler's attorney (who was also Finn's attorney) agreed to that approach, so long as Naugler's case was tried first. Counsel for Ellis also agreed, provided Finn's case was tried first, reasoning that if the jury found Ellis was not negligent, that finding would be "res judicata" as to Naugler. After a brief recess, the trial judge indicated the Finn matter would be tried first, and counsel for Naugler objected.

Naugler's objection was rooted in several grounds: (i) his injuries were more severe that those suffered by Finn; (ii) Finn's own negligence would be a factor in her case against Ellis, which would not be an issue for Naugler as a mere passenger; and (iii) Finn had certain "emotional difficulties" that might make her less appealing to a jury. Nonetheless, the trial judge proceeded with his planned course of trying the Finn matter first, informing counsel that if the jury were to return a verdict finding Ellis was not negligent, "Mr. Naugler's case is over." In the alternative, if the jury found some negligence on the part of Ellis, Naugler would then be allowed to present further testimony as to his damages. The jury presumably would then retire to consider a second verdict with respect to Naugler's claim.

Page 53

Both Finn and Naugler testified at the trial. Naugler renewed his objection to the court's planned course of action at the close of the evidence. The trial judge gave the familiar instructions regarding negligence and damages, as well as instructions on comparative negligence as between Finn and Ellis. The jury was provided with a verdict slip containing five questions, the first of which asked whether Ellis was negligent. After deliberating, the jury found Ellis was not negligent and consequently awarded zero damages to Finn. The court then entered judgment in favor of Ellis with respect to Naugler's claim, and this appeal followed.

2. Analysis. It is axiomatic that Naugler was entitled to a jury trial on the issues raised by his action. Jury trials are available in the District Court in money damages actions if the right to jury trial is properly claimed. [Note 2] See arts. 12 and 15 of the Massachusetts Declaration of Rights. The jury, however, did not render a verdict with respect to Naugler's case. To warrant such a result, then, his claim must have been barred by res judicata or the application of Massachusetts Rule of Civil Procedure 42(c), which permits consolidation of actions in the District Court under certain circumstances. For the reasons set forth below, neither principle warrants the denial of Naugler's right to a jury trial.

A. Res judicata. The term "res judicata" includes both claim preclusion and issue preclusion. See Heacock v. Heacock, 402 Mass. 21, 23 n.2 (1988). "Claim preclusion makes a valid, final judgment conclusive on the parties and their privies, and prevents relitigation of all matters that were or could have been adjudicated in the action." O'Neill v. City Manager of Cambridge, 428 Mass. 257, 259 (1989), quoting Blanchette v. School Comm. of Westwood, 427 Mass. 176, 179 n.3 (1998). This is based on the idea that the party to be precluded has had the incentive and opportunity to litigate the matter fully in the first lawsuit. Id. The invocation of claim preclusion requires three elements: "(1) the identity or privity of the parties to the present and prior actions, (2) identity of the cause of action, and (3) prior final judgment on the merits." Kobrin v. Board of Registration in Med., 444 Mass. 837, 843 (2005), quoting Franklin v. North Weymouth Coop. Bank, 283 Mass. 275, 280 (1933). "It is the general rule that when two different actions involving the same parties and the same claim are pending at the same time, the final judgment first rendered is entitled to res judicata effect in the second action, regardless of which was commenced first" Wright Mach. corp. v. Seaman-Andwall Corp., 364 Mass. 683, 690 (1974), citing Restatement of Judgments §43 (1942), and Restatement (Second) of Judgments §41.1 (1982).

"Claim preclusion" is inapplicable in the present case because the requisite elements described above are not satisfied. While Naugler was a witness in the prior action, he was not a party, due to the trial judge's decision. He was also not a privy. He served as a witness in the trial, but that alone does not elevate his status to that of a privy. The jury, as fact finder, were unaware they were deciding Naugler's fate by their verdict. See Old Dominion Copper Mining & Smelting Co. v. Bigelow, 203 Mass. 159, 218 (1909) ("One comprehensive definition of privies is such persons as are 'privies in estate - as donor and donee, lessor and lessee and joint tenants; or privies in blood - as heir and ancestor; or privies in representation - as executor

Page 54

and testator or administrator and intestate; or privies in law - where the law without privity in blood or estate casts land upon another, as by escheat'" [citations omitted]).

Similarly, issue preclusion "prevents relitigation of an issue determined in an earlier action where the same issue arises in a later action, based on a different claim, between the same parties or their privies." Heacock, supra at 23 n.2. Before precluding a party from relitigating an issue, "a court must determine that (1) there was a final judgment on the merits in the prior adjudication; (2) the party against whom preclusion is asserted was a party (or in privity with a party) to the prior adjudication; and (3) the issue in the prior adjudication was identical to the issue in the current adjudication." Tuper v. North Adams Ambulance Serv., Inc., 428 Mass. 132, 134 (1998). "Additionally, the issue decided in the prior adjudication must have been essential to the earlier judgment." Id. at 134-135, and cases cited. Issue preclusion may be used only to prevent relitigation of issues actually litigated in the prior action. See Fidelity Mgt. & Research Co. v. Ostrander, 40 Mass. App. Ct. 195, 199 (1996).

Upon the record before us, "issue preclusion" is likewise inapplicable. Here, while Finn and Naugler shared the same theory, i.e., they suffered injuries due to negligence on the part of Ellis, Naugler was not in privity with Finn. The pair were both occupants of the same vehicle that collided with Ellis, but that, without more, does not establish privity. See Pioneer Insulation & Modernizing Corp. v. City of Lynn, 331 Mass. 560, 563 (1954) ("It is true that in certain circumstances a person who is not a party may be bound by the adjudication of litigated matters as if he were a party. But he must, individually or in cooperation with others, control the action and have a financial or proprietary interest in it"). The simple fact of the matter is that while Naugler was a witness at the trial, he simply did not have his day in court. See Anderson v. Phoenix Inv. Counsel of Boston, Inc., 387 Mass. 444, 452 (1982) (The rule of res judicata is designed to forestall a plaintiff from getting 'two bites at the apple.'").

B. Mass. R. Civ. P. 42(c). The remaining possible avenue by which Naugler might not be entitled to a jury trial is by application of Rule 42(c) of the Massachusetts Rules of Civil Procedure. That rule provides that "[w]hen actions involving a common question of law or fact are pending before a single District Court, it may order a joint hearing or trial of any or all the matters in issue in the actions." Id. For these purposes, Rule 42 "follows federal law." New England Energy Inc. v. Keystone Shipping Co., 855 F.2d 1, 7 (1st Cir. 1988). Here, the trial judge proposed to use his discretion pursuant to Rule 42(c) to streamline the court docket. Naugler objected, though, and raised real concerns.

In considering whether to consolidate two or more cases, a trial judge is required to conduct a two-part analysis. Seguro de Servicio de Salud v. McAuto Sys. Group, Inc., 878 F.2d 5, 8 (1st Cir. 1989). As a threshold issue, a judge must determine "whether the two proceedings involve a common party and common issues of fact or law." Id. If the cases involve common parties and common issues of fact or law, then the judge must weigh the costs versus the benefits of consolidation, namely, the interests of judicial economy versus the concern for a fair trial. Id. See Malcolm v. National Gypsum Co., 995 F.2d 346, 350 (2d Cir. 1993). "It is appropriate to consider, when weighing the costs and benefits of consolidation, 'the convenience or inconvenience to the parties, the judicial economy, the savings in time, effort or expense and any confusion, delay or prejudice that might result from consolidation.'" Cruickshank v. Clean Seas Co., 402 F. Supp. 2d 328, 341 (D. Mass. 2005), quoting Data Gen. Corp.

Page 55

v. Grumman Sys. Support Corp., 834 F. Supp. 477, 487 (D. Mass. 1992), affd, 36 F.3d 1147 (1st Cir. 1994). Absent a showing of "demonstrable prejudice," courts generally allow consolidation. Segura de Servicio de Salud, supra at 8.

Naugler articulated at least three reasons why consolidation might be disadvantageous to his case, namely, that his injuries were more severe that those suffered by Finn; Finn's own negligence would not be a factor in his case; and Finn had certain "emotional difficulties" that might make her less appealing to a jury. We cannot say those concerns were unwarranted. When sufficient prejudice is demonstrated by the party opposing consolidation, then “[c]onsiderations of convenience and economy must yield to a paramount concern for a fair and impartial trial.” Unifund CCR Partners v. Mendel, 2007 Mass. App. Div. 38, 39, quoting Johnson v. Celotex Corp., 899 F.2d 1281, 1285 (2d Cir. 1990).

The judgment is vacated, and the case is returned to the trial court for further proceedings not inconsistent with this opinion.