The expert's testimony would not necessarily have been dispositive on this issue, and the jury would have been entitled to believe or disbelieve all, some, or part of the expert's testimony. See Banaghan v. Dewey, 340 Mass. 73, 79 (1959); Dodge v. Sawyer, 288 Mass. 402, 408 (1934). In the face of conflicting affidavits, the plaintiffs' expert's affidavit does not provide a basis on which the judge properly could have concluded that the reorganization of the maximum wing of the prison and its denomination as the "general population" of Cedar Junction was a pretext to avoid compliance with the DSU regulations.
The jury is entitled to discount, or disbelieve, the expert's testimony. See Banaghan v. Dewey, 340 Mass. 73, 79 (1959); Dodge v. Sawyer, 288 Mass. 402, 408 (1934). One factor in assessing the strength of expert testimony is the expert's knowledge and experience.
In determining the value of Supreme's good will, the judge was not bound by the expert testimony. P.J. Liacos, supra at 117, citing Dodge v. Sawyer, 288 Mass. 402, 408 (1934). Delano argues that the trial judge relied on extraneous materials, not admitted at trial, in determining good will.
Quimby v. Jay, 196 Mass. 584. Zamore v. Boston Elevated Railway, 198 Mass. 594, 597. Lincoln v. Finkelstein, 255 Mass. 486. Dodge v. Sawyer, 288 Mass. 402, 408. We do not intimate, if the point were open, that there was any error in that portion of the charge above set forth.
That, however, might have been disbelieved. Commonwealth v. Russ, 232 Mass. 58, 70. Coddaire v. Sibley, 270 Mass. 41, 47. Dodge v. Sawyer, 288 Mass. 402, 408. Salem Trust Co. v. Deery, 289 Mass. 431. There was sufficient evidence to support the finding of the trial judge in the testimony briefly summarized above. 3. The trial judge ruled with respect to the suit in equity in substance that the only ground for equitable relief was that the insurer might be deprived of its right to certain defences which now exist but which might not exist in the event that the plaintiff in the action at law discontinued that action after the expiration of one year, and before the expiration of the two-year period during which action might be brought under the policy: and that since the insurer by the trial of the cases together has had the benefit of all defences it might have raised under the policy and has made a full defence under the policy, therefore there was no ground for relief in equity.
See Harris v. Old King's Hy. Regional Historic Dist. Commn., 38 Mass. App. Ct. 447, 451 (1995). See also Dodge v. Sawyer, 288 Mass. 402, 408 (1934). The record shows that Lattimer's testimony did not in fact contradict Fanara's as to chiropractic technique, and Fanara maintained that his patients overreacted to his innocent gestures and inadvertent touchings in the course of legitimate chiropractic treatment.
None of the experts' conclusions, of course, is binding on the trier of fact, and they may be rejected in whole or in part. Dodge v. Sawyer, 288 Mass. 402, 408 (1934). The Nantucket Act provides: "Any person or the Historic District Commission, aggrieved by a decision of the board of selectmen, may appeal to the Superior Court sitting in equity for the County of Nantucket; . . . The court shall hear all pertinent evidence and determine the facts and upon the facts so determined, annul such decision if found to exceed the authority of the board or make such other decree as justice and equity may require."
In answers to special questions the jury rejected both contentions. The plaintiff's extensive argument that their verdict must be set aside because it was not supported by substantial evidence seems to be grounded in part on an assumption that the jury were required to accept the testimony of the plaintiff's expert witnesses (an assumption we do not accept: see Dodge v. Sawyer, 288 Mass. 402, 408 [1934]; Banaghan v. Dewey, 340 Mass. 73, 79 [1959]; Commonwealth v. Guiliana, 390 Mass. 464, 468 n. 7 [1983]; Liacos, Massachusetts Evidence 117 [5th ed. 1981] and in part on fundamental misconceptions about the burden of proof and the right of a fact finder to decide what to accept and what not to accept. The same misconceptions underlie the contention that the jury were required to find that the defendant was in breach of certain express warranties on the chemical package.
The jury must resolve the conflicts in expert testimony. Dodge v. Sawyer, 288 Mass. 402, 408 (1934). Leach and Liacos, Handbook of Massachusetts Evidence 92 (4th Ed. 1967).
" Cote v. Sylvia, 2008 Mass. App. Div. 27, 28. See also MacLeod v. Commonwealth Capital FundingCorp., 2000 Mass. App. Div. 239. It requires at least some affirmative ruling by the court. See Dodge v. Sawyer, 288 Mass. 402, 406-407 (1934) (assumed, without deciding, that the court's allowance of an exception to the denial of a request, post-jury instructions, for an additional instruction constituted "special leave" to present the request late). It is generally not granted by implication. See Keohane, petitioner, 179 Mass. 69, 73 (1901).