Opinion
10-P-1631
10-25-2011
249 A STREET COOPERATIVE CORPORATION v. MASSACHUSETTS HIGHWAY DEPARTMENT & another.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this civil action arising from claims of damage to the plaintiff's building as a result of construction on the Central Artery/Harbor Tunnel (CA/T) project, a Superior Court jury returned a verdict for the defendants (collectively, the Commonwealth). On appeal, the plaintiff argues that the judge erred in refusing to admit a hearsay statement attributed to David Druss, an engineer working for Bechtel Parsons Brinckerhoff (BPB), relating to the condition of the building's wood pilings before and after the CA/T construction. The plaintiff also challenges certain pretrial rulings and the propriety of the Commonwealth's closing argument. We affirm.
Background. The plaintiff alleged and endeavored to prove at trial that its building was structurally damaged as a result of CA/T construction work that included the creation of an I-90 connector tunnel and a casting basin on land directly abutting the building. The building sits on filled land atop a concrete slab supported by wood pilings. According to the plaintiff, CA/T construction caused the groundwater level to fall below the top of the wood pilings, thereby damaging them.
The evidence established that in 1988, David Druss, an engineer working for BPB, examined samples of wood pilings dug from a test pit on the plaintiff's property, and found them to be sound; and that, fourteen years later, in 2002, Druss went to the office of the plaintiff's engineering expert and inspected a section of piling taken from a new test pit on the property. During direct examination of the plaintiff's expert engineer, Paul Kelly, the plaintiff's counsel unsuccessfully sought to elicit testimony that Druss told Kelley, 'this pile is nothing like the one we looked at in '88, it's much more deteriorated than the one in '88.' The judge excluded the testimony, stating that she was unconvinced that Druss was an agent of the Commonwealth, and that even if he was an agent, the testimony was unreliable.
The judge stated, 'I'm not even convinced about agency, first of all, and even if there was a foundation of agency, I don't believe that statement that the witness proposes to offer was reliable . . . .' Earlier, the judge also had expressed concern that the plaintiff was endeavoring to 'bootstrap a comment that was made in 2002, fourteen years later, by somebody who's not here, who is not subject to cross examination.'
Discussion. 1. Exclusion of David Druss's statement. The plaintiff contends that the judge abused her discretion in failing to admit Druss's statement as either an admission of a party opponent, Mass. G. Evid. § 801(d)(2)(C)(2011), or a vicarious admission, Mass. G. Evid. § 801(d)(2)(D). We disagree. As the proponent of the evidence, the plaintiff had the burden of proving the foundational facts required for the statement's admission, and this it did not do.
On the record before her, the judge was well within her discretion in determining that the plaintiff had failed to establish that Druss was an agent authorized to make statements on behalf of the Commonwealth, as required for an admission by a party opponent. Mass. G. Evid. § 801(d)(2)(C). The judge also was well within her discretion in concluding that the statement did not satisfy the two-prong inquiry for vicarious admission under Mass. G. Evid. § 801(d)(2)(D), i.e., that the declarant was authorized as an agent on the matters about which he spoke, see Herson v. New Boston Garden Corp., 40 Mass. App. Ct. 779, 791 (1996), and that the probative value of the evidence was not 'substantially outweighed by its potential for unfair prejudice to the opponent of its admissibility.' Ruszyck v. Secretary of Pub. Safety, 401 Mass. 418, 422 (1988).
There was a paucity of evidence that Druss, an employee of the Commonwealth's independent contractor, was an agent of the Commonwealth for any purpose whatsoever. Furthermore, regardless of Druss's agency status, the judge was entitled to conclude that the statement had little probative value (the pilings Druss studied in 1988 were not the same as the piling he examined in 2002, and the offered statement involved a comparison of observations made fourteen years apart) and that such value as it did have was substantially outweighed by the potential for unfair prejudice to the Commonwealth, which would have no opportunity to cross-examine Druss on his alleged observations.
Finally, even if the statement should have been admitted, it was cumulative of other evidence properly admitted during trial, and therefore, its exclusion was not prejudicial. Cf. Doyle v. Dong, 412 Mass. 682, 687-688 (1992). A report containing Druss's engineering field notes from 1988 regarding the location of test pits and his findings concerning the structure of the building were admitted in evidence over the Commonwealth's objection. Kelley also testified that he inspected the piling in 2002 and that it was decayed. As plaintiff's counsel stated, 'Mr. Druss's comments . . . really are simply confirmation of what is in the report . . . .'
2. Pretrial rulings. There is no merit to the plaintiff's contention that the judge erred by failing to sanction the Commonwealth for defects in the Commonwealth's answer, responses to discovery requests, and disclosure of expert witnesses. All of the rulings in question were within the judge's broad discretion as to the conduct and scope of discovery and pretrial management. See Solimene v. B. Grauel & Co., KG, 399 Mass. 790, 799 (1987).
3. Closing argument. The plaintiff claims that the frequent use of the first person pronoun by the Commonwealth's counsel constituted vouching. Because the plaintiff did not object or move for a mistrial, the issue was not properly preserved, and we need not consider it on appeal. See Fontaine v. Ebtec Corp., 415 Mass. 309, 317 (1993); Ciccarelli v. School Dept. of Lowell, 70 Mass. App. Ct. 787, 799 (2007). In any event, it bears reiterating that not every use of the first person pronoun is an impermissible interjection of personal beliefs. See Commonwealth v. Santiago, 425 Mass. 491, 499 (1997). Furthermore, even if some of the remarks here could be said to fall into that category, the judge's admonition to the jury that they were to decide the case 'solely on the credible evidence' and that 'arguments or statements by the lawyers are not evidence' would have ameliorated any prejudice.
Judgment affirmed.
By the Court (Rapoza, Cohen & Agnes, JJ.),