Opinion
No. 15–P–702.
06-20-2016
Stephen DRAPER v. FRANCESCO DEMOLITION, INC., & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After trial commenced in this action, the defendants, Francesco Demolition, Inc., and Frank Durante (collectively, defendants), moved for a directed verdict on plaintiff Stephen Draper's negligence claim pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). After the judge indicated that he would treat the motion as one for summary judgment, he allowed the defendants' motion on the ground that Draper would be unable to prove an essential element of his case. On appeal, Draper claims error in the proposed, but not charged, jury instructions on causation and that the judge erred in concluding that Draper had to introduce his medical records and/or expert testimony in order to prove causation. We affirm.
The evening before, Draper indicated he would not be introducing in evidence either his medical records or expert medical testimony.
Draper claims the judge erred in applying “but for” causation in his proposed charge to the jury. We disagree. First, the judge merely proposed these instructions subject to a future discussion with counsel. While the plaintiff takes issue with the judge's proposed use of the but for language, he himself used it on the first day of trial when stating what his expert would testify to: “But for the fall into the water and the, the events subsequent to that, he would not have contracted bacterial pneumonia.” See Matsuyama v. Birnbaum, 452 Mass. 1, 30–31 (2008). Furthermore, the judge's proposed instructions included the language Draper sought—that he must prove that “it is more likely than not that negligence by Defendants caused Mr. Draper to become sick.” See Enrich v. Windmere, Corp., 416 Mass. 83, 87 (1993). In any event, because these proposed instructions including the causation question at issue never reached the jury, this claim is without merit.
The proposed instruction stated: “Mr. Draper must prove that, if Mr. Durante had not been negligent, then Mr. Draper probably would not have developed pneumonia.... It does not matter whether other causes also contributed to Mr. Draper's injuries so long as you find Mr. Draper has proved that he would not have been injured to the same extent but for negligence by Defendants.”
Draper also made no objections to the judge's preliminary remarks to the jury.
Next, Draper argues that the judge erred on the issue of causation. To sustain his negligence claim, Draper needed to establish that the defendants owed him a legal duty, that they breached that duty, and that the breach proximately caused his injuries. Docos v. John Moriarty & Assocs., Inc., 78 Mass.App.Ct. 638, 640 (2011), citing Davis v. Westwood Group, 420 Mass. 739, 742–743 (1995). Although there are situations within the common knowledge of the jury where expert testimony is not required, see Bailey v. Cataldo Ambulance Serv., Inc., 64 Mass.App.Ct. 228, 236 n.6 (2005), and cases cited, expert testimony is necessary on highly technical medical issues such as injury causation. See Weinberg v. Massachusetts Bay Transp. Authy., 348 Mass. 669, 671 (1965) ; Ward v. Levy, 27 Mass.App.Ct. 1101, 1102 –1103 (1989), and cases cited. See also Lally v. Volkswagen Aktiengesellschaft, 45 Mass.App.Ct. 317, 324–325 (1998), and cases collected therein.
In light of Draper's tobacco and alcohol use, previous lung disease, and preexisting heart block, the cause(s) of his pneumonia and the need for a pacemaker were neither obvious nor incontestable. Draper's assertion on the second day of trial—following his decision not to introduce in evidence any medical records or expert testimony—that he would no longer claim pneumonia, but an unidentified illness, could not resolve his difficulties of meeting his burden of proof in light of the sworn statement of the defendants' expert that Draper indeed had pneumonia, but that it was caused by his preexisting risk factors. Although Draper stated that he would rely on his own testimony, as well as the testimony of his wife and a witness to the accident, the judge correctly determined that this offer of proof could not withstand summary judgment. If the jury had decided the case in the absence of Draper's medical records and expert medical evidence to support his claim, they would have based their findings on speculation and conjecture. As such, the judge properly granted summary judgment.
In light of the defendants' expert medical evidence, Draper could not rest on his allegations. See Godbout v. Cousens, 396 Mass. 254, 261 (1985) (nonmoving party may not rest upon allegations or assertions, but must respond with specific facts); Pederson v. Time, Inc., 404 Mass. 14, 17 (1989) (once moving party establishes absence of triable issue, burden shifts to nonmoving party to offer affirmative evidence). See also Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002).
We have carefully considered each of the remaining arguments presented in Draper's brief. To the extent that any particular claim has not been specifically addressed herein, we have found it to be without merit. See Department of Rev. v. Ryan R., 62 Mass.App.Ct. 380, 389 (2004).
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Judgment affirmed.