Opinion
18-P-774
10-24-2019
James BUZBEE v. Richard T. NATALE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal from judgments entered, following a jury trial in Norfolk Superior Court, finding that the decedent, who was the mother of the plaintiff James Buzbee, (1) had the testamentary capacity in 2010 to execute her will, create a trust, and execute other estate planning documents, through which she essentially left all of her property to the defendant, Richard Natale, her neighbor; (2) executed the documents free from undue influence; and (3) intentionally destroyed the 2010 will. On appeal, Buzbee raises three claims of error. We affirm.
Expert testimony. Buzbee first contends that the judge abused his discretion in precluding his expert from opining whether the decedent had the testamentary capacity to execute the 2010 will. We review a judge's decision to exclude expert testimony for an abuse of discretion. See Canavan's Case, 432 Mass. 304, 312 (2000). "If the process or theory underlying a scientific expert's opinion lacks reliability, that opinion should not reach the trier of fact." Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994). The proponent of the expert testimony bears the burden to show that the expert's testimony is reliable. See Commonwealth v. Sands, 424 Mass. 184, 185-186 (1997). The judge acts as a gatekeeper, which "entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Lanigan, supra, quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-593 (1993).
Given Buzbee's burden to show the expert's opinion is reliable and that the judge acts as a gatekeeper for the jury, Buzbee's argument that the expert's testimony was admissible because Natale did not file a pretrial motion is without merit.
Here, Buzbee's expert testified that he did not examine the decedent and that in order to "arrive at a diagnosis" whether the decedent had the testamentary capacity when she executed her 2010 will, he would require contemporaneous examination of her. As set forth in his report, his opinion was that the decedent "might have been mentally incompetent" when she executed her estate planning documents (emphasis added). Thus, the judge did not abuse his discretion in excluding this testimony as speculative. See Aleo v. SLB Toys USA, Inc., 466 Mass. 398, 406 (2013), quoting Sevigny's Case, 337 Mass. 747, 751 (1958) ("Expert opinion testimony may be excluded ‘where it amounts to no more than mere speculation or a guess from subordinate facts that do not give adequate support to the conclusion reached’ ").
The judge also properly excluded the expert's testimony regarding Buzbee's mental health history and reasons for not visiting the decedent. The testimony was not relevant to the disputed issues on trial -- namely, whether the decedent had the testamentary capacity in 2010 when she executed the estate documents, and whether she destroyed the 2010 will. See Commonwealth v. Patterson, 445 Mass. 626, 639 n.10 (2005) ("To be admissible, testimony must be relevant as well as reliable"). In any event, Buzbee and his wife testified regarding Buzbee's medical and mental health conditions.
Revocation of trust. Next, Buzbee contends that the judge should have instructed the jury that the apparent inability to locate the 2010 trust instrument among the decedent's papers suggested that the instrument had been destroyed, thereby revoking the trust. Buzbee did not ask for such an instruction and did not seek to present any such question to the jury for consideration. Accordingly, he has waived any claim of error in this regard. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006), quoting Century Fire & Marine Ins. Corp. v. Bank of New England-Bristol County, N.A., 405 Mass. 420, 421 n.2 (1989) ("An issue not raised or argued below may not be argued for the first time on appeal").
Moreover, the trust instrument provided that the trustee (the decedent) could revoke the trust only "in writing" and following any such revocation the trust assets were required to be returned to the settlor (the decedent). No such writing was in evidence; indeed, the trust assets remained with the bank, which had received no instructions to transfer them to the decedent.
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Response to jury question. Buzbee also maintains that the judge erred in refusing to instruct the jury (in response to a question they asked during deliberations) that they could compensate Natale for the care he provided to the decedent during her lifetime should they find the 2010 will was intentionally destroyed. Because this theory was not presented to the jury during the trial, there was no abuse of discretion. See Boorstein v. Boston, 28 Mass. App. Ct. 313, 318 (1990), quoting Dalton v. Post Publ. Co., 328 Mass. 595, 598-599 (1952) ("A judge is required to submit to a jury only the issues which the parties have seen fit to try").
Judgments affirmed.