Opinion
No. 15–P–882.
10-20-2016
Kevin WESCOTT, administrator, v. Kathleen BARRETT.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Kevin Wescott, is the son of the decedent, Mary E. Bianchetto, and the administrator of her estate. Bianchetto died as a result of a fall she suffered during a hospital stay. The plaintiff subsequently filed this wrongful death action against the defendant nurse, Kathleen Barrett. After a jury found in favor of Barrett, the plaintiff filed a motion for a new trial, which was denied. On appeal, the plaintiff challenges several evidentiary rulings and jury instructions. We affirm.
At the outset, we note that our review of the plaintiff's appeal is hampered by his failure to include in his record appendix his motion for a new trial. See Mass.R.A.P. 18(a), as amended, 425 Mass. 1602 (1997); Cameron v. Carelli, 39 Mass.App.Ct. 81, 83–84 (1995). We nevertheless consider the merits of his appeal to the best of our abilities, addressing each of his claims, in turn.
1. Evidentiary rulings. There is no merit to the plaintiff's argument that the “judge improperly excluded the nurse practice act and nursing standards of conduct until the close of [his] case.” The judge consulted the parties on the issue, took judicial notice of the relevant portions of the regulations after the plaintiff had rested, admitted copies of those portions in evidence, and appropriately instructed the jury. As for the scientific publications the judge excluded from evidence, there likewise was no error. As to each, the plaintiff failed to meet the foundational prerequisites of G.L. c. 233, § 79C, which requires testimony about the author's expertise in the subject and the publication's relevance to the case. See Ramsland v. Shaw, 341 Mass. 56, 63–65 (1960) ; Commonwealth v. Reese, 438 Mass. 519, 527 (2003).
The plaintiff sought to admit the regulations of the Board of Registration in Nursing codified at 244 Code Mass. Regs. §§ 3.00 (1993) and 244 Code Mass. Regs. §§ 9.00 (2000).
Notably, the plaintiff fails to explain how the timing of the judge's actions caused him prejudice.
Nor did the plaintiff adequately meet the foundational requirements during the rest of the trial, despite the judge's willingness to allow him to do so.
The judge did not improperly restrict the plaintiff's cross-examination of the defendant's expert regarding the defendant's violation of the nursing regulations, as expert testimony on a violation of a regulation or statute calls for a legal conclusion and may impinge on the jury's function. See Lind v. Domino's Pizza LLC, 87 Mass.App.Ct. 650, 663–664 (2015). Nor did the judge abuse his discretion in restricting the plaintiff's cross-examination of the same witness on the issue of bias, as the proposed line of questioning was not probative of that issue. See Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 477 (1991).
See note 2, supra.
The plaintiff complains that a similar type of inquiry had been “allowed on direct,” but fails to mention that he lodged no objection at that time.
2. Jury instructions. The judge inadvertently omitted a fragment of a sentence from his jury charge on expert evidence. The plaintiff noted the error following the charge, but did not ask the judge to reinstruct the jury on that point. For this reason, and the fact that the judge thoroughly explained the different types of evidence to be considered by the jury throughout his charge, the omission of the language in question did not constitute reversible error. See Blackstone v. Cashman, 448 Mass. 255, 270 (2007). Taking the charge as a whole, no rational juror would have concluded that he or she could not consider any of the nonexpert testimony and evidence admitted during the eight-day trial. See Selmark Assocs., Inc. v. Ehrlich, 467 Mass. 525, 547 (2014).
In his draft jury instructions, the judge wrote:
“Expert testimony is required to establish medical negligence and in this case you use both the expert testimony you heard and all other testimony and evidence in this case to determine whether there was medical negligence.”
In his final written jury instructions, and in his oral charge to the jurors, the judge mistakenly omitted “and all other testimony and evidence in this case” from the above sentence.
We summarily dispose of the plaintiff's remaining claims of error on the issue of jury instructions. No instruction was necessary on the consideration of the defendant's testimony in relation to an admission of violating the standard of care, as she made no such admission during her testimony. The judge's instruction on the portions of the Code of Massachusetts Regulations admitted in evidence was proper, and in line with instruction 13.17 of the Massachusetts Superior Court Civil Practice Jury Instructions (3d ed.2014). Contrast Campbell v. Cape & Islands Healthcare Servs., Inc ., 81 Mass.App.Ct. 252, 258 (2012). The judge's comment in his final charge regarding certain improper remarks plaintiff's counsel had made during the trial was warranted and not an abuse of discretion. The judge also properly instructed the jurors to disregard the portion of the plaintiff's closing argument asking the jurors why a witness, whom he had subpoenaed and represented that he would call as a rebuttal witness, did not appear before them. A remark the judge made during a bench conference could not have affected the jury's verdict. Finally, the judge's statement to the jurors explaining why he was reinstructing them on a certain point neither singled out plaintiff's counsel, nor constituted an admonition.
We have not overlooked other arguments made by the plaintiff, but conclude they do not require discussion. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).