LIAM JOYCE vs. MICHAEL BIELBY and another [Note 1]

KARSTETTER, J. In November of 2013, defendant Michael Bielby ("Bielby") ran a red light on Hale Street in Newburyport and broadsided a United Parcel Service truck driven by plaintiff Liam Joyce ("Joyce"), causing him injuries. The parties stipulated to the defendant's negligence, leaving for trial the issues of causation and damages. There was evidence that Joyce's reasonable and necessary medical expenses exceeded $60,000.00. After trial in January, 2017, the jury returned a verdict in favor of Joyce and awarded damages of $9,163.00. The record indicates that Joyce fulfilled the conditions precedent to seeking a new trial based on inadequate damages pursuant to Mass. R. Civ. P. 59(a). His motion for a new trial or for additur was denied. Contending that the verdict was against the weight of the evidence and that there was error in the admission of certain evidence, Joyce filed this appeal seeking a new trial. We affirm.

1. Background facts. Plaintiff Joyce moved in limine to exclude any evidence of defendant Bielby having suffered a seizure just before the collision. The judge limited the evidence to the statement, "I think I had a seizure, I blacked out," which Bielby's counsel mentioned in his opening statement. Bielby testified, without objection, that he had no idea what happened. Asked if he had "blacked out," he responded, "Black out, fainted. I really can't say." Immediately thereafter, Bielby agreed that he was responsible for the collision. Counsel appropriately limited his closing to Bielby's actual testimony. Joyce now contends that the admission of this testimony, in light of the stipulation on liability, was error.

Joyce also moved in limine to exclude the report and testimony of Mary Ellen Cotter ("Cotter"), a licensed nurse practitioner who examined the plaintiff in connection with his claim for workers' compensation benefits, on the grounds that the report was inadmissible hearsay and the testimony unreliable.

Joyce urges us to view the claimed errors in the admission of evidence against the backdrop of the amount of the verdict, which was approximately 15% of his special damages, or in the alternative to return the case with an order that the trial judge alter or amend the amount of the judgment.

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2. Discussion. Denial of motion for new trial or additur. The decision to grant or deny a motion for new trial is within the trial court's discretion. Freeman v. Wood, 379 Mass. 777, 781 (1980); Fialkow v. DeVoe Motors, Inc., 359 Mass. 569, 576-577 (1971); Bergdoll v. Suprynowicz, 359 Mass. 173, 175 (1971). Such a motion should not be granted unless the failure to do so is inconsistent with substantial justice. Galvin v. Welsh Mfg. Co., 382 Mass. 340, 343 (1981). Great deference must be given to the view taken by the trial judge in denying a new trial motion when the argument on appeal is based on the weight of the evidence, whether the damages awarded are excessive (or, as is claimed here, insufficient), or the impact of newly discovered evidence. Fyffe v. Massachusetts Bay Transp. Auth., 86 Mass. App. Ct. 457, 471 (2014). In Fyffe, the Appeals Court noted:

"This case is also before us on direct appeal from the judgment. Therefore, the deferential standard applicable to review of the new trial motion does not relieve us of the duty to examine the record to determine whether instructions that were given or not given by the judge when a matter was properly brought to her attention amounted to an error of law, and to assess whether that error was prejudicial."

Id.

Joyce's claims of error are also before us on direct appeal from the judgment, and we too are thereby not relieved of the duty to examine the record to determine whether there was prejudicial error. We turn, therefore, to the disputed evidence.

"Context" evidence. The trial issues in this case were limited to causation and damages. Joyce contends that the anticipated testimony (that Bielby blacked out and thought he had a seizure) that the judge heard at the motion in limine stage, and the actual testimony (that he had no idea what happened) that the judge allowed in evidence, did not add anything probative. [Note 2] Bielby contends that the context, i.e., the circumstances surrounding the happening of the accident, was relevant, and that in the exercise of her broad discretion, the trial judge could admit the disputed evidence if only to prevent speculation about the reason for the defendant's stipulation as to liability. Joyce further contends that even if the evidence was probative to put the accident in context, its probative value was substantially outweighed by the danger of unfair prejudice.

Whether the view of the disputed evidence is that it was not relevant or that it was unduly prejudicial, a party may claim error in the admission of that evidence only if the error injuriously affects a substantial right of the party. G.L. c. 231, §§ 119, 132. See Galvin, supra at 343. Where the claimed error is in the admission of evidence, the party must timely object or move to strike, stating the specific ground unless it is apparent from the context. Commonwealth v. Marshall, 434 Mass. 358, 365 (2001); Commonwealth v. Pickles, 364 Mass. 395, 399 (1973). Despite the lack of an objection

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during the trial testimony, and acknowledging the differences between the proffer during the motion hearing and the actual testimony at trial, we conclude that the issue was preserved. [Note 3] The question, then, remains whether the admitted testimony injuriously affected a substantial right of the plaintiff Joyce.

Because Bielby's actual testimony was that he did not know what had happened and not the more definitive preamble that he blacked out and might have had a seizure, the actual testimony was less likely to garner sympathy or to create a danger of unfair prejudice to Joyce than the testimony that had been expected, the amount of the verdict notwithstanding. The immediate admission of liability following this testimony also reduced that danger. Any prejudice that might have resulted from the fact that the jury heard something different in the opening statement was cured by the judge's proper instruction that the openings and closings of counsel were not evidence. The admitted testimony did not injuriously affect a substantial right of the plaintiff Joyce whether or not its admission was error.

Report and testimony of nurse practitioner. Plaintiff Joyce also contends that admission of Cotter's report/records [Note 4] and testimony was error because the evidence should have been excluded as inadmissible hearsay and unreliable expert opinion, respectively. Joyce posits that the exception in G.L. c. 233, § 79G to the general rule that hearsay is inadmissible did not apply because it was not the report of a treating nurse practitioner and was therefore not a treatment record. As to Cotter's testimony, Joyce's chief objection is that it did not meet the standard of reliability required to be admitted under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).

General Laws c. 233, § 79G provides that reports like Cotter's are admissible. In pertinent part, [Note 5] it provides:

"In any proceeding commenced in any court . . . , any report of any examination of said injured person, including, but not limited to hospital medical records subscribed and sworn to under the penalties of perjury by the physician . . . , shall be admissible as evidence of . . . the necessity of such services or treatments, the diagnosis of said physician . . . , the prognosis of such physician . . . , the opinion of such physician . . . as to proximate cause of the condition so diagnosed, the opinion of such physician . . . as to disability or incapacity, if any, proximately resulting from the condition so diagnosed . . . ."

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The nurse practitioner in this case was a physician as defined by G.L. c. 233, § 79G because the term "physician" is broadly defined and "shall include chiropodists, chiropractors, optometrists, osteopaths, physical therapists, podiatrists, psychologists and other medical personnel licensed to practice under the laws of the jurisdiction within which such services were rendered" (emphasis added). Id. See Commonwealth v. Palacios, 90 Mass. App. Ct. 722, 726 (2016) (EMT reports qualified as admissible opinion of "physician" under § 79G). Cotter testified that she was required to be and was licensed by the Commonwealth at the time she examined Joyce; she was, therefore, a "physician" as defined by the statute. There is no requirement in the statute that the physician be a "treating" physician or that the examination be for "treatment" purposes.

Joyce cites Ortiz v. Stein, 31 Mass. App. Ct. 643 (1991) for the proposition that a report of an examination must be for the purpose of rendering medical treatment in order to be admissible under the statute. We do not read the holding of Ortiz to include such a requirement. The affidavit deemed inadmissible by the Appeals Court in Ortiz contained the opinion of a physician who neither treated nor examined the injured party. "If each word of [G.L. c. 233, § 79G] is to be given force and effect (Citation omitted.), the reference to the ‘report of any examination . . . subscribed . . . by the physician . . . rendering such services . . .' limits the admissible reports to those authored by a physician who treated or examined the injured person in question" (emphasis added). Id. at 644-645. There is no additional holding that the examination be in contemplation of treatment.

The testimony of Cotter was likewise admissible. On direct examination, Bielby elicited her status as a nurse practitioner, her licensure, statements made by Joyce to her during her examination of him, and the preparation of her records/report. She was not asked about her evaluation or any opinion until Joyce's cross-examination. General Laws c. 233, § 79G provides:

"Nothing contained in this section shall be construed to limit the right of any party to the action to summon, at his own expense, such physician . . . for the purpose of cross examination . . . , or for any other purpose, nor to limit the right of any party to the action or proceeding to summon any other person to testify in respect to such bill, record or report or for any other purpose" (emphasis added).

Under the statute, then, Bielby was free to call the nurse practitioner to testify for what was ruled the appropriately limited purposes of providing information relevant to the admission of Cotter's report (her background), Joyce's statements during the examination, and that her findings were in her report. Any testimony beyond that limited scope elicited by Bielby on redirect was properly allowed because Joyce raised additional information on cross.

We turn to Joyce's argument that without information regarding Cotter's qualifications and experience, he could not determine if her testimony was reliable. Mass. G. Evid. §§ 104, 702 (2017); Canavan's Case, 432 Mass. 304 (2000); Commonwealth v. Lanigan, 419 Mass. 15 (1994). See also Daubert, supra; Commonwealth v. Arroyo, 442 Mass. 135 (2004). After ruling that Cotter's testimony would be allowed (with some limitations), the trial judge asked Joyce's counsel, "Is there anything else in regards

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to [the nurse practitioner]'s testimony?" Joyce was thereby given the opportunity to conduct a hearing, which he declined. On direct examination, Bielby did not proffer Cotter's opinion; it was Joyce's cross-examination that resulted in opinion testimony. His objections to the testimony being beyond simple lay observations are thus unavailing. The crux of Joyce's objection to Cotter's testimony has more to do with its weight than its admissibility, an argument he had the opportunity to make to the jury. Having determined that there was no error in the admission of Cotter's report and testimony, we need not consider whether that evidence injuriously affected a substantial right of the plaintiff. The jury's verdict. In addition to the substantial deference we give to the trial judge's determination on a motion for new trial, in deciding whether any damages award is against the weight of the evidence, substantial deference must be given to the jury's determination. The jury could have credited Cotter's properly admitted report and testimony, specifically, the testimony regarding Joyce's statements to her that his pain had essentially resolved as of the date of her last examination. The jury was free to discredit the evidence of the need for further treatment and expense following the date that Cotter deemed Joyce fit to return to work and thereby credited only part of Joyce's damages claim. There was no reason for the trial judge to conclude that the jury acted dishonestly or unreasonably in reaching its verdict. Hartmann v. Boston Herald-Traveler Corp., 323 Mass. 56, 60 (1948). We decline therefore to return the case for a new trial or to alter or amend the judgment.

Judgment affirmed.

So ordered.