Opinion
No. 15–P–687.
07-12-2016
Roger M. MILAMBO, administrator, v. Sarah CATLIN & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff is the father of the stillborn child, Samuel Milambo, delivered in 2007 by Caesarian section (C-section) at thirty weeks of the mother's pregnancy, and is also the administrator of the child's estate. Following an eleven-day trial in October, 2014, the jury found that defendants Dr. Sarah Catlin and Dr. Eloise Chapman were not negligent, and that Dr. Tanya S. Ghatan was negligent, but that her negligence was not a substantial contributing factor in the death of the child. The plaintiff's motion for a new trial was denied by the trial judge The plaintiff appealed.
The plaintiff's theory of the case was that the defendants negligently delayed the C-section and that this delay caused the stillbirth. The plaintiff claimed that neither he nor the mother was responsible for the delay and that the case was about credibility. The defendants' theory of the case was that the child's death in utero was an unforeseen acute event of undetermined cause, and that in any event, the mother delayed giving her consent to the C-section.
At trial, the plaintiff did not move for a directed verdict or a judgment notwithstanding the verdict. He has not challenged the sufficiency of the evidence either in his motion for a new trial or on appeal. In this appeal, relying on the contents of numerous documents not admitted in evidence at trial, he disputes only evidentiary rulings and the trial judge's instructions to the jury. We affirm.
They are the mother's January 10, 2013, complaint for protection from abuse and the supporting affidavit; the January 10, 2013, abuse protection order; the January 23, 2013, order modifying the earlier order; the March 25, 2013, order modifying the earlier order; the plaintiff's divorce complaint; the plaintiff's pretrial memorandum in the divorce case; the mother's pretrial memorandum; the mother's affidavit in support of her opposition to the plaintiff's motion for return of a 2006 Land Rover; the plaintiff's letter to the Probate Court seeking “withdrawal of [the mother's] motion for [a] restraining order”; and “Burlington [police] Full Log” of a call from the mother on November 20, 2012.
Background. The jury could have credited the following evidence. The mother had numerous medical and surgical procedures prior to the delivery of Samuel, her second stillborn child, on December 24, 2007. Her first pregnancy had ended in 2005 at twenty-two weeks with a stillbirth. The mother's second pregnancy likewise ended with the stillbirth which is the subject of the current case. During this pregnancy, the mother had several hospital admissions and visits. On December 22, 2007, two days before the stillbirth, she came to the hospital complaining of decreased fetal movement. A biophysical profile (BPP) was performed, and the result was eight out of eight. The mother was discharged.
A BPP is a test involving an abdominal ultrasound to evaluate the health of the fetus. The BPP measures four criteria: amniotic fluid volume, fetal breathing movements, fetal body movements, and fetal tone. Each criterion is scored as zero or two, with a total possible score of eight. The BPP result can be used to predict fetal well-being for three to four days and up to one week.
On December 24, 2007, when she was thirty weeks and three days pregnant, the mother came back to the hospital with the plaintiff, complaining of constipation over a five-day period and of abdominal pain. She was not in labor. The mother was attached to a fetal heart monitor for almost an hour and a half until 9:28 A.M., and the resultant tracing was reassuring. The mother was subsequently examined, tested, monitored, and treated for constipation and pain.
Different methods were used to address her constipation, and she was frequently getting up to go to the bathroom. When the mother was not on the fetal monitor, the fetus was evaluated at various times by a handheld Doppler, a device which measures the heart rate of the fetus, and by intermittent electronic monitoring. After initially feeling better, the mother began experiencing more pain, and pain medication was administered to her at 1:10 P.M. She was put back on the fetal heart monitor at 1:36 P.M.
At 2:04 P.M., the fetal heart tracing strip showed normal results. The mother was taken for an ultrasound at 2:30 P.M., and was put back on the monitor at 3:26 P.M. The BPP report listing the time as 3:27 P.M. indicated a reading of only two out of eight. Upon learning of this result, the defendants decided that a C-section was necessary, and so informed the mother and the plaintiff. The mother was moved back to her room and hooked up to the monitor, when, according to the defendants, the plaintiff began asking for the mother's regular gynecologist and telling the doctors that they did not know what they were talking about, that the baby was fine, and that the problems were caused by the pain medication given to the mother. Even though the mother had previously communicated with the staff in English, at this time she was not responding to the doctors, only speaking to the plaintiff in French.
Dr. Ghatan, who understands French, heard the plaintiff tell the mother to listen to him, that he was in charge, that she did not need a C-section, that the doctors did not know what they were talking about, and that the problems were caused by the pain medication. Dr. Ghatan then called for an interpreter and told the plaintiff that if he was not going to let the mother answer, she would call security. The plaintiff stated in response that the mother did not want a C-section. It was only after the interpreter called by the doctors came in that the mother gave her consent for the C-section.
It took approximately forty-five minutes from the time the attending physician first told the mother that a C-section was necessary until the time she gave her consent to the surgery. She consented to anesthesia at 4:30 P.M. Dr. Ghatan assisted with a different delivery at 4:49 P.M. and then came back to the mother's delivery room. The mother's surgery began at 5:35 P.M., and the child was delivered stillborn, with no pulse and an Apgar score of zero.
Dr. Ghatan certified the cause of the child's death as unknown intrauterine fetal demise. The pathologist who examined the placenta and performed the autopsy on the child wrote in his report that there were no pathological findings as to the placenta and the fetus and that “the events leading to fetal death were very acute in nature.”
The plaintiff's sole expert, obstetrician/gynecologist Dr. Cohn, testified that the consent form signed by the mother some four months earlier, on August 13, 2007, was sufficient to perform a C-section on December 24, 2007; that there should have been continuous fetal heart monitoring on December 24, 2007; and that the 3:27 P.M. BPP of two meant “[a]lmost certain fetal asphyxia ... as close to 100 [percent] as you possibly can get....” He opined that the defendants were responsible for the delayed delivery, that Dr. Ghatan violated the standard of care by not sending the mother from the ultrasound room directly to the operating room for an immediate C-section after the BPP, and that these actions substantially contributed to the stillbirth.
The judge noted in her order denying the plaintiff's motion for a new trial that Dr. Cohn's testimony was inconsistent. He testified both that the child's stillbirth was caused by a gradual process and that it was sudden. He first stated that there were “plenty of warning signs” that the child “was deteriorating,” but later described the deterioration as “a gradual process.” He also testified that “the influence that ultimately killed the baby, happened close to the—the delivery time; not hours or days before,” and that “this child was alive straight up until the time when the Caesarean section was done.”
The defendants presented two experts: Dr. Goldberg, an obstetrician/gynecologist; and Dr. Pinar, a perinatal pathologist. Dr. Goldberg testified that each of the three defendants met the standard of care applicable to her. She testified that continuous fetal monitoring was neither necessary nor possible where the mother (1) had a normal BPP two days earlier, (2) was not in labor, (3) had been on electronic fetal monitoring for one and one-half hours that morning, which yielded normal results, and (4) was frequently getting up to use the bathroom in light of the treatment for constipation. Dr. Goldberg also testified that following unfavorable BPP results, the defendants could not have proceeded with preparations for a C-section and could not have performed the C-section without first obtaining the mother's consent. She stated that in light of the mother's serious medical conditions, all of the steps taken by Dr. Ghatan prior to the surgery were necessary. She also testified that the cause of the stillbirth in this case was unexplained and undetermined.
Dr. Pinar, a perinatal pathologist, testified on the issue of causation. He stated that the results of the autopsy examination and the placental examination were normal, and that in this case, as in forty percent of stillbirths, the cause of the stillbirth was undetermined. He also testified that nonHispanic black women have a higher incidence of stillbirths, and that a woman who previously had a stillborn child is at increased risk of a subsequent stillbirth. Dr. Pinar ruled out the cause of death as insufficient oxygen flow. He testified that although the cause of death was unknown, he agreed with the pathology report that it was caused by an acute event.
Discussion. The plaintiff's main argument on appeal is that certain documents (the mother's 2013 affidavit and resulting c. 209A order, and the divorce pleadings, including the mother's divorce affidavit) were not admissible in this case. This argument is misplaced because these materials, and numerous other materials that the plaintiff included in the record appendix, were not introduced as exhibits at trial. The proper question is whether it was appropriate for defense counsel to cross-examine the plaintiff and the mother by referring to the affidavits and quoting from them.
Much of the material in the record before this court does not appear in the plaintiff's jury book or the defendants' jury book. Those documents are not properly before us. See Mass.R.A.P. 8(a), as amended, 378 Mass. 932 (1979); Mass.R.A.P. 18, as amended, 428 Mass. 1601 (1998).
We consider the judge's rulings on defense counsel's cross-examination of the plaintiff and the mother applying the following well-settled principles: “We review a trial judge's evidentiary decisions under an abuse of discretion standard.” Crown v. Kobrick Offshore Fund, Ltd., 85 Mass.App.Ct. 214, 219 (2014), quoting from N.E. Physical Therapy Plus, Inc. v. Liberty Mut. Ins. Co., 466 Mass. 358, 363 (2013). “Whether evidence is relevant is a question addressed to the sound discretion of the trial judge.... [It] is a matter on which the opinion of the trial judge will be accepted on review except for palpable error .” Wyatt, petitioner, 428 Mass. 347, 355 (1998) (citations omitted).
The “adverse party has the right to cross-examine the witness on all matters material to the issue.” Nuger v. Robinson, 32 Mass.App.Ct. 959, 960 (1992) (quotation omitted). “[T]he scope of cross-examination rests largely in the sound discretion of the trial judge.” Crown, supra at 220, quoting from Commonwealth v. DeJesus, 44 Mass.App.Ct. 349, 352 (1998). The determination of the scope of cross-examination includes the determination of the extent to which “the accuracy, veracity, and credibility of a witness may be tested.” Commonwealth v. Gagnon, 408 Mass. 185, 192 (1990), quoting from Commonwealth v. Underwood, 358 Mass. 506, 513 (1970).
Finally, as to impeachment, “the decision to admit impeachment evidence rests in the broad discretion of the judge and will not be disturbed on appeal unless the exercise of that discretion constituted an abuse of discretion or palpable error of law.” Crown, supra at 220, quoting from Commonwealth v. Oliveira, 74 Mass.App.Ct. 49, 52 (2009).
1. Cross-examination of the plaintiff. During the direct examination of the plaintiff, his counsel asked him to tell the jury how he was impacted by the death of his son, and the plaintiff responded that if the child “was alive today, me and my wife would be together on this day.” At the subsequent bench conference, the judge concluded that in fairness, defense counsel must be allowed to address the plaintiff's inflammatory statement, but in an abundance of caution, instructed the parties that this must be done one step at a time. After the plaintiff's statement on direct examination, the judge ruled that he had opened the door to the exploration of the reasons for his and the mother's divorce. See Commonwealth v. Francis, 432 Mass. 353, 360 (2000), citing Commonwealth v. Magraw, 426 Mass. 589, 595–596 (1998). See also J. Edmund & Co. v. Rosen, 412 Mass. 572, 576 (1992).
The plaintiff's statement was made in contravention of his own earlier position in his motion in limine. On the first day of trial, the judge heard arguments on the plaintiff's motion in limine in which he sought to prevent the defendants from introducing any evidence of his marital relationship with the mother and their marital status at the time of trial on the ground that such evidence was irrelevant, prejudicial, and confusing.
In their opposition, the defendants asserted that the evidence of the plaintiff's abuse of the mother during the marriage both before and after the loss of this child was relevant to the mother's delay in giving her consent to the C-section. The judged agreed that the state of the plaintiff's and the mother's relationship was relevant to the circumstances under which the defendants sought the mother's consent to a C-section and to the mother's delay in giving her consent. However, she also instructed defense counsel to seek permission at sidebar before using the mother's affidavits for impeachment.
Defense counsel argued that the plaintiff's testimony opened the door to the issue of his relationship with the mother. She asserted that the acrimonious divorce, and the mother's sworn allegations of rage and violence by the plaintiff, which started before this pregnancy and increased after this second loss of a child, were relevant on the issue. The judge concluded that the plaintiff opened the door for the cross-examination on the nature of their relationship and marriage, that she could not “un-ring this bell,” and that the plaintiff's statement that he and the mother would still be together if it were not for the child's death was dramatic and inflammatory.
During his cross-examination, the plaintiff doubled down on his earlier assertion. When asked whether there were issues between him and the mother that were unrelated to the child when he filed for divorce, he responded: “The issues was [sic ] to do with my son.” He also repeated his testimony that if the child were alive, he and his wife would still be together. With these statements, the plaintiff invited the defense to rebut his assertion by showing his knowledge that there were reasons for the divorce other than the stillbirth.
The plaintiff opened the door even wider when he himself invoked a report from the Burlington police, in response to defense counsel asking whether he knew that in the course of the divorce proceedings the wife signed an affidavit saying she was forced to leave the marital home in fear of harm from him. There were no objections by plaintiff's counsel. Just as the plaintiff was the one to bring up the police report, he was also the one who brought up the restraining order. It was only when defense counsel stated in her next question that nobody was pressuring the mother to get a restraining order that plaintiff's counsel objected and the judge sustained his objection. Through his responses, the plaintiff further expanded the breadth of proper inquiry by the defense regarding the reasons for his divorce and his claimed lack of knowledge of these reasons. See Gagnon, 408 Mass. at 192.
Shortly thereafter, the judge invited plaintiff's counsel to submit a proposed limiting instruction. In response, plaintiff's counsel moved for a mistrial, asserting that the cross-examination of the plaintiff was improper. In denying his motion, the judge agreed that one cannot be impeached with someone else's statement, but noted that “[t]he defendants have to be able to counter [the plaintiff's] statement that he attributes his divorce only to the death of [the child], when he knew that there [were] clear allegations through [P]robate and [F]amily [C]ourt documentation ... and also through restraining orders that there were many other reasons.”
On the morning of the next day, the judge held a hearing on the plaintiff's renewed motions in limine and for a mistrial. She reiterated her ruling that the plaintiff had opened the door to defense counsel's line of inquiry and that the mother's allegations of abuse against the plaintiff and the dynamic of their relationship were crucial to the defendants' argument that the mother did not give consent for a period of time because she was being dominated by the plaintiff. The judge repeated her offer to plaintiff's counsel to give a limiting instruction, suggested the possible language of such an instruction, and so instructed the jury after plaintiff counsel's request. Plaintiff's counsel did not object and did not request additional or different instructions. “We presume that a jury understand and follow limiting instructions, Commonwealth v.. Jackson, 384 Mass. 572, 579 (1981) ; see Commonwealth v. Kappler, 416 Mass. 574, 576 n. 1 (1993), and that the application of such instructions ordinarily renders any potentially prejudicial evidence harmless.” Commonwealth v. Donahue, 430 Mass. 710, 718 (2000).
The judge instructed:
“Last Friday, at the very end of last Friday and as [defense counsel] continues her cross-examination of Mr. Milambo, you have and will continue to hear mention of other acts allegedly done by Mr. Milambo with relation to Ms. Milambo.
“You may not consider that evidence as proof that the defendant has a criminal personality or bad character.
“However, you may consider that evidence solely on the limited issues of the grounds for divorce of Mr. and Mrs. Milambo as well as the credibility of Mr. Milambo.
“You may not consider this evidence for any other purpose other than those two grounds, [t]he grounds for divorce between this couple and Mr. Milambo's credibility.”
2. Cross-examination of the mother. On direct examination, the mother denied that there was a delay of forty-five minutes to an hour when the plaintiff was not allowing her to give her consent and talk to the doctors. On cross-examination, after she testified that she did not remember Dr. Chapman telling her that the child would not survive and that the doctors needed her consent to deliver the child immediately, she was confronted with her deposition testimony, which was inconsistent with her response. During continuing cross-examination, she denied that she was afraid to speak up, that she was afraid of the plaintiff, and that she feared he would be angry with her if something went wrong with this pregnancy.
When the mother was asked if the plaintiff acted violently toward her prior to 2007, plaintiff's counsel objected and the judge held a bench conference during which plaintiff's counsel moved for a mistrial. Defense counsel pointed out that the mother's affidavits contradicted her testimony. The judge noted that in the 2013 affidavit marked for identification the mother wrote that “[t]he violence started in 2004.” The judge noted that “credibility is highly relevant to this case” and that plaintiff's counsel had accused the doctors of lying. Since the mother had denied being in fear of the plaintiff, which was clearly contradicted by her affidavits, the judge concluded that defense counsel had established a basis on which to impeach her with the affidavit.
When cross-examination resumed, the mother again denied that she was afraid of the plaintiff in 2007, and denied that the plaintiff hit her and threw things at her. Defense counsel, with the judge's permission, showed the mother her 2013 affidavit, which she referred to as an exhibit marked for identification and a document. Before defense counsel asked the mother any more questions, the judge instructed the jury that items marked for identification were not exhibits in the case. Defense counsel then read several sentences from the affidavit, including: “I'm afraid of him and ran away from him several times,” and “[h]e used to hit me, throwed [sic ] telephone books on me, and corner me in order to finish me but stop [sic ].” The mother confirmed that she had written these words.
When defense counsel read the mother's statement in the affidavit that “[t]he violence started in 2004 and escalated toward 2012,” and asked her if she had read it correctly, the mother expanded the scope of the inquiry by insisting: “You have to start ... in the beginning what I wrote down here. You cannot pinpoint something, you have to start at the beginning.” The judge gave the jury a limiting instruction as to their use of this statement. Plaintiff's counsel neither objected to this instruction nor requested additional or different instructions on the subject.
On redirect examination, the mother again denied having been a victim of domestic violence. During the subsequent bench conference, defense counsel sought permission to impeach the mother with the three restraining orders issued at her request. At that point, the judge denied the request on the condition that plaintiff's counsel stop pursuing this line of inquiry.
After redirect examination resumed, the mother testified that things escalated between her and the plaintiff after the child's death in 2007, and that she and the plaintiff were divorced. On recross-examination, the mother confirmed that she had told the jury earlier that her marriage disintegrated only after 2007 because of the child's death. It was then, and only then, that defense counsel referred to the mother's “history of obtaining restraining orders on three different times,” and plaintiff's counsel's objection was overruled.
In sum, the judge carefully considered the testimony and the prejudicial impact of the restraining orders and the mother's affidavits. She allowed the plaintiff and the mother to be impeached only after they testified inconsistently, and even then, made gradual and cautious rulings. All of the judge's rulings allowing impeachment using the mother's affidavits and the restraining orders were correct. The plaintiff has not shown that the judge's challenged evidentiary rulings during the cross-examination of the plaintiff and the mother were plainly wrong or constituted an abuse of discretion. Horowitz v. Bokron, 337 Mass. 739, 742 (1958). J. Edmund & Co. v. Rosen, 412 Mass. at 576.
Even if the plaintiff's claims of evidentiary errors were valid, those errors were not prejudicial, nor did they affect the outcome of the case. See G.L. c. 231, § 119 ; Mass.R.Civ.P. 61, 365 Mass. 829 (1974); Crown v. Kobrick Offshore Fund, Ltd., 85 Mass.App.Ct. at 220. The plaintiff's challenges related to the issue of delay and whether it was the mother or the defendants who caused it. By finding Dr. Ghatan negligent, the jury presumably accepted the plaintiff's claim that she breached the duty of care by delaying the C-section. It was on the element of causation that the jury found for Dr. Ghatan. This finding and the resultant jury verdict were supported by the testimony of the defendants' expert, a perinatal pathologist. This testimony was not contradicted by a different pathologist because the plaintiff did not present a pathology expert to testify as to causation. Furthermore, the plaintiff's sole expert, an obstetrician/gynecologist, gave contradictory testimony as to how the child's stillbirth occurred. Our conclusion that the errors, if any, did not affect the outcome, is cemented by the fact that the plaintiff has not challenged the sufficiency of the evidence and has not argued that the jury could not have reached their verdict based on the evidence.
3. Curative instructions. The plaintiff's last argument is that the judge erred in giving a curative instruction to the jury during plaintiff's counsel's examination of Dr. Ghatan and another instruction after his closing argument. Improper “remarks in a closing argument that make reference to matters that are not in evidence, when followed by an objection, [call for] a curative instruction directing jurors to disregard the remark.... [M]uch is left to the discretion of the trial judge in assessing the impact of errors in a closing argument....” Fyffe v. Massachusetts Bay Transp. Authy., 86 Mass.App.Ct. 457, 472–473 (2014). See Kirby v. Morales, 50 Mass.App.Ct. 786, 794 (2001) (it is within the judge's broad discretion to decide whether a curative instruction should be given). These instructions, however, were proper in the context of the plaintiff's cross-examination and closing argument.
During his examination of Dr. Ghatan, plaintiff's counsel questioned her about discovery, interrogatories, and depositions; about when the case was filed, when interrogatories were sent to her and when she answered them, and about scheduling and cancellation of depositions. Defense counsel objected when plaintiff's counsel asked Dr. Ghatan about the timing of her deposition, insinuating that the defendants abused the discovery process to gain strategic advantage. The judge sustained defense counsel's objections. After a bench conference, the judge instructed the jury:
Plaintiff's counsel claimed at trial that the defendants intentionally and improperly delayed discovery, including Dr. Goldberg's expert disclosure, in order to make up the story about the plaintiff's interference with their attempt to get the mother's consent to the C-section and in order to dig out the plaintiff's and the mother's divorce and c. 209A records. These assertions were not supported by the evidence at trial and are not supported by the record on appeal.
“Members of the jury, I just want to point out to you that we've talked about these types of discovery. There are time limits.
“The rules dictate when a party is supposed to respond to these discovery requests. But, these requests, these timelines and deadliness are commonly extended by agreement of the parties.
“So, please don't infer anything by the fact that there may have been delays in responding to some discovery responses. This is not uncommon at all, in any type of lawsuit.”
In his closing argument, plaintiff's counsel again argued that the defendants chose “to try [this] case” on the plaintiff's and the mother's divorce file. He went on to claim that the defendants did not assert until 2013 that the plaintiff delayed the mother's granting of consent to the C-section. He argued to the jury that the defendants had improperly delayed in order to “get all [their] ducks in a row,” that this was neither “fair” nor “unbiased,” and that they did so in order to “dig through divorce files and restraining orders.”
Defense counsel subsequently objected and asked for a curative instruction. The judge concluded that it was improper for plaintiff's counsel to imply that the defendants engaged in a conspiracy to wait until the last minute to come up with the defense. She instructed the jury on this issue:
“Members of the jury, if you heard [plaintiff's counsel] in his closing argument refer to any significance to the timing of the defendants' responses to any discovery requests or to their disclosure of any expert testimony, you are to disregard it. All right?
“The timing of discovery responses is the function of many different circumstances, and it is not relevant for your—to your consideration of the facts in this case.”
The two challenged instructions, one given during the cross-examination of Dr. Ghatan, and the other given after plaintiff's counsel's closing argument, were necessary to ensure that the jury would base their decision on the evidence and would not improperly consider the timing of discovery. The judge did not abuse her discretion in giving these instructions. See Renzi v. Paredes, 452 Mass. 38, 53 (2008).
Judgment affirmed.
Order denying motion for new trial affirmed.